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Court of Appeal: Judge wrong to jail unrepresented woman for contempt

Bean: Sentence should have been for a fixed term

A judge was wrong to jail an unrepresented woman for contempt of court without giving her more time to find a lawyer, the Court of Appeal has ruled.

Lord Justice Bean said it was “unrealistic” to expect the woman, locked in a battle with her sister about their deceased father’s pension money, to be able to find a lawyer within one and a half days while in prison.

He said that not only was Naomi James guilty of “burying her head in the sand”, but her “devious” behaviour in claiming to have documents in a plastic bag in her cell and then refusing to hand them over was “deplorable”.

However, His Honour Judge Gerald was wrong to “impose a sentence of immediate custody on an unrepresented appellant”.

Bean LJ went on: “I would hope that with sensible advice from her experienced counsel and solicitors, she will even now see sense.

“Indeed that is one of the reasons, in my judgment, why there is such heavy emphasis in the rules and practice directions on the court seeking to ensure that a contemnor has legal representation, because it is possible that advice from lawyers can persuade even as difficult and obstructive a litigant as the appellant to see sense.”

The Court of Appeal heard in James v James [2018] EWCA Civ 1982 [1] that Steven Mark James died intestate in 2016 while employed by the NHS.

His estate, apart from £100 in cash, consisted of two pensions. His Standard Life pension of around £10,800 was split between his daughters, Naomi and Hannah, without the need for a grant of representation.

NHS Pensions asked for a grant of representation before paying his daughters a “death in work benefit lump sum” of almost £65,000. Naomi obtained a grant of representation in July 2017, but texted her sister in October to say that she had decided not to claim the pension.

Hannah issued a claim in the Chancery Division for an account for payment of the sums due to her and an order to replace Naomi as administrator, which was granted in March 2018.

NHS Pensions wrote to Hannah’s solicitor the same month to say that it had paid almost £65,000 to Naomi in November 2017.

HHJ Gerald ordered Naomi to attend court on 8 June 2018 with a witness statement explaining her administration of her father’s estate, including confirmation of into which account the NHS pension had been paid.

Bean LJ said Naomi did not attend the 8 June hearing and did not comply with the order – “indeed she has not complied with the order to this day”.

Nor did Naomi attend the hearing of the committal application on 6 July, which was heard in her absence, with counsel representing Hannah.

HHJ Gerald ordered her committal for contempt, and she was arrested on 10 July and imprisoned until she complied with the order.

Naomi was produced in court for sentencing on 11 July, again unrepresented, but the case was adjourned until 13 July to allow her to seek legal representation.

At that hearing, HHJ Gerald refused her application for an adjournment to obtain legal representation and sentenced her to six months in prison.

Bean LJ recounted: “The judge asked himself whether it was appropriate in this case to proceed to sentence in the circumstances where the defendant does not have legal representation.

“He said that all that needed to be done was for the defendant to answer the simple questions: Where is the £66,000? Where has the money gone? Where is it now? and a witness statement with any relevant documents was to be disclosed.

“He took into account that the defendant appeared to be a clever and articulate lady who fully understood the nature of the proceedings.”

Bean LJ said he found it “particularly startling” that Naomi did not apply to the court to purge her contempt. Having obtained a representation order by 18 July, she appealed against HHJ Gerald’s ruling on 3 August.

Bean LJ said there was nothing to suggest “any basis” to overturn the finding of contempt by HHJ Gerald on 6 July.

However, the order for committal was defective because the Contempt of Court Act 1981 required it to be for a fixed term.

Naomi should also not have been the subject of an order for committal on 13 July because she had no “proper opportunity to have a solicitor or barrister make representations on her behalf to the court”.

Bean LJ set aside the orders for committal and remitted the case to Central London County Court for another circuit judge to determine the committal application.

Lord Justice David Richards agreed.