Case No. C80LS576
In the County Court at Leeds
22 July 2022
Mr Recorder Cameron
- This is a contempt application under Part 81 of the Civil Procedure Rules 1998, in which it is alleged that the defendants, John Bulloch Sommerville and Jennifer Sommerville, are each in breach of undertakings given to His Honour Judge Raeside QC on 19 September 2017.
- I heard the evidence in this case and counsels’ submissions on Monday, Tuesday, and Wednesday of this week, that is to say 18th, 19th and 20 July 2022.
- The claimant, Mr Fred Davies, was represented by Mr Hanbury of counsel, the first defendant, Mr John Summerville, was represented by Miss Feng of counsel, and the second defendant, Mrs Jennifer Sommerville, was represented by Mr Davis of counsel.
- I have heard evidence from Mr Davies, his wife, Mrs Suzanne Harley Davies, and from Mr and Mrs Sommerville.
- The application was made on 21 October 2021. An order was made in respect of the management of the application by His Honour Judge Klein on 24 November 2021. The recitals to the order made by His Honour Judge Klein on that occasion make it clear that everything which needed to be explained to the defendants, prior to the application being heard, was so explained on that occasion.
- His Honour Judge Klein also made an order giving permission to add a schedule to the application notice, and requiring that schedule to set out further information, including the date of each allegation and which undertaking was said to have been breached on each occasion. That schedule includes 26 separate allegations against Mr Sommerville, 25 of which are also allegations against Mrs Sommerville.
- At the hearing on 19 July 2022, I have permission for this schedule to be amended. This was primarily because in respect of four of the allegations, it was apparent that it was being alleged that the breach had taken place over a number of days, whereas the schedule only referred to the first day of the alleged breach.
- To that extent, it seemed to me that the schedule did not comply with His Honour Judge Klein’s order. I gave reasons for allowing such amendment at the time, but in summary, it was obvious from the affidavits and witness statements that those allegations related to extended periods of time, and that there could be no possible prejudice to the defendants by allowing such amendments.
- I also allowed the date of one allegation to be changed, where everyone agreed that the date in the schedule was wrong.
- Finally, I had by that stage suggested that the allegations should be numbered 1-26, and these numbers were added to the schedule. I shall refer to the allegations as I did during the hearing by reference to these numbers.
- I remind myself that since it is a committal application, I need to be satisfied beyond reasonable doubt or, as it is otherwise put, satisfied so that I am sure that a breach has been proved before I can find it to be so proved.
- I also remind myself that I consider the evidence in respect of each alleged breach and the evidence against each defendant separately.
- I also remind myself that I rely upon the evidence which I have heard, and which is within the trial bundle. In that context, I should note that I allowed, upon application on behalf of Mr Sommerville, three photographs to be added to the trial bundle as it stood at the commencement of the hearing. One photograph of Mr Sommerville with some sort of injury to his face, and two photographs of part of the locus in quo in this dispute, depicting part of the entrance to an area known as the “Outer Bailey”.
- The background to this dispute is one which will be depressingly familiar to property lawyers: it concerns neighbours, a shared access, limited space for parking vehicles, defendants who own a number of vehicles including at least one large four-by-four type vehicle, defendants’ grown-up children who have their own vehicles and who have visitors who bring their vehicles.
- It may be that there are many people who are able to live happily in such circumstances, but to lawyers, these factors all look all too often like a dispute waiting to happen. In this particular case Mr Sommerville, in addition to motor cars and a four-by four, owns and operates agricultural machinery. Also, one of Mr and Mrs Sommerville’s sons, James, aged 34, runs an eventing yard and so uses a horsebox, and clearly has visitors including farriers, vets, and others, including at least on occasions visitors in vehicles towing trailers.
- In addition, Mr and Mrs Sommerville’s premises include a building known as “Pigeon Cote”, which is let to a residential tenant who owns a motorhome.
- To set matters out in slightly more detail, Mr and Mrs Sommerville own Holly Cottage, Marton Cum Grafton, near York. In 2012, Mr Davies purchased premises known as “The Barn”. Part of The Barn is an area known as the “Inner Bailey”, and this area, insofar as material, is enclosed by a wooden fence in which is a set of double gates, which are intended to give vehicle access to the Inner Bailey.
- Without the gates is an area known as the Outer Bailey, this is a courtyard largely enclosed by Pigeon Cote, another building known as “The Cow Byre”, and by part of the boundary features of Holly Cottage and adjoining premises in third party ownership, known as “Fir Tree”.
- In 2012, when Mr Davies purchased The Barn, Mr and Mrs Sommerville acquired the Outer Bailey, except for a strip five metres wide which leads from the gates to Mr Davies’ Inner Bailey, across the Outer Bailey, to what was described during the trial as a “pinch point” on the other side of the Outer Bailey, where the boundary features reduce the available width; possibly, although this was not established in evidence, to the five-metre width of the driveway.
- From this point, the driveway runs between Holly Cottage and Fir Tree to the public highway, Grafton Lane; this part of the driveway also gives access to Holly Cottage. The driveway, rather unusually, was transferred as part of the arrangement in 2012 into the joint ownership of Mr Davies and Mr and Mrs Sommerville.
- The features as I have just described them are shown on a plan at page 43 of the trial bundle. The area comprising the Outer Bailey is shown in three colours on that plan: orange, pink, and blue, whilst the driveway is shown unshaded.
- I do not know the details of the original dispute between the parties, and they are not relevant to the current application. The dispute was settled by agreement and made the subject of a Tomlin order.
- As part of the agreement, Mr and Mrs Sommerville agreed to give undertakings to the court. These were accepted by His Honour Judge Raeside QC and are set out in the recitals to his order of 19 September 2017.
- The first question which I have to ask myself is what, insofar as is material to the application, did the defendant undertake to do or not to do.
- My starting point is the amended schedule. The allegations fall within two groups: allegations of trespass, that is to say allegations 3 and 15, and; allegations relating to parking which comprise each of the remaining 24 allegations.
- The trespass allegations identified the undertaking in each case as follows: “Not to trespass on any part of the claimant’s land, edged red on plan B, attached to the schedule to the order”.
- The parking allegations in each case identified the undertaking as follows:
“Not to park any vehicle on or immediately adjacent to the driveway, or allow other vehicles to do so, otherwise in accordance with clause 7 of the transfer of the defendant’s land or cause any obstruction to the driveway”.
- I take the recitals to His Honour Judge Raeside QC’s order as the definitive text of the undertakings. However, the prohibition on trespass is set out at a paragraph which is numbered 1(4) and is seen on page two of the trial bundle. The parking undertaking is at the paragraph numbered 1(2) and is on page one of the trial bundle.
- I next look to see whether the undertakings and the consequence of breaching the undertakings has properly been brought to the attention of the defendants by document endorsed with a penal notice. His Honour Judge Raeside QC’s order itself does not include a penal notice.
- Each defendant has, however, signed a form N117, the signed copies being at pages 13-14 and 15-16, respectively, of the trial bundle. These forms do, of course, include penal notices.
- These, however, do not set out the undertakings within the form itself, but instead state: “See the paragraph 7 of the attached settlement agreement setting out the terms of the undertakings”.
- Paragraph 7 of that agreement is at page 36-37 of the trial bundle. It sets out the parking undertaking at clause 7b. It does not, however, set out the trespass undertaking, In other words, although the trespass undertaking has been given, as recorded in His Honour Judge Raeside QC’s order, it has not been the subject of a penal notice.
- This, it seems to me, is really the end of the trespass allegations. I cannot impose a penalty unless there has been a penal notice. In this respect, I note that both Mr and Mrs Sommerville gave evidence that, and I paraphrase, they did not think that the matter would lead to proceedings in which they would be potentially liable to a penalty.
- As far as the parking allegations are concerned, if that evidence is correct, the answer is that they should have read and kept in mind the notice on the forms which they signed. That however, in the circumstances, is no answer in respect of the trespass allegations.
- I should mention in this context that there is a prohibition against entering the claimant’s land without his, as it is expressed in the prohibition, “prior consent” at paragraph 7a of the settlement agreement. This however is not the pleaded allegation in the schedule.
- Moreover, it is set within a paragraph which deals with the construction works and is probably therefore to be construed as relating to the period and vicinity of such works. Those works have nothing to do with this application, and I do not need to consider that provision any further.
- The next question is what precisely did the defendant undertake in respect of parking? This question in turn can be broken down into four further questions:
1) What is the relevance of clause 7 of the transfer?
2) What is meant by the undertaking not to allow vehicles to park?
3) What is meant by “the driveway”?
4) What is meant by “immediately adjacent to the driveway”?
- As to the first question, well firstly, what is really meant is not clause 7 but clause 12(7), but no one has taken that particular point. That clause relates to the Outer Bailey generally, and it sets out certain parking which is permitted on the orange and on the pink land. It does not permit any parking on the driveway. Accordingly, it is largely irrelevant for the purposes of this application.
- It is to be noted, however, and it is a matter to which I will return at a later point in this judgment, there is no specific prohibition on parking on the blue land.
- As to the second question, it seems to me likely that if the word “allow” falls to be interpreted in any further proceedings other than a contempt application (such proceedings otherwise being based upon this undertaking) it would be interpreted as meaning more than just “shall not grant permission”. It would impose some sort of duty to take some steps to try to ensure that such parking did not take place.
- Can I be satisfied, however, not only that this is what the phrase means, but that the defendants clearly understood that this is what they were undertaking to do? When I put the matter like that, it seems to me that the answer is clearly in the negative. Instead, I accept, as was submitted on behalf of the defendants, that the phrase “not to allow” in this context means “not to grant permission”, either expressly or by implication, or requires as a minimum knowledge of the parking or other obstruction coupled with a failure to take practicable steps to prevent it or to bring it to an end.
- The third question is what is meant by “the driveway”? The relevant transfer has two plans appended to it on pages 69 and 70 of the bundle. However, those plans are not entirely consistent with one another. The driveway clearly includes the area immediately in front of Mr Davies’ gates and can be identified between what I described as the “pinch point” and the public highway.
- What about, however, where it crosses the Outer Bailey? The answer is that its precise route, that is, the boundaries between the driveway and the land owned by Mr and Mrs Sommerville, need to be defined.
- It is not, however, my role to define it in the course of this application. Instead, a breach will only be proved if there is parking on an area which must form part of the driveway. This will not be easy to ascertain, not least because I think the parties, including Mr Davies, regard the precise route as something to be agreed in future rather than, as is in fact the case, something to be determined on the basis of the existing transfer.
- As to the fourth question, the phrase “immediate adjacent” could mean different things to different people. I could not be possibly satisfied that any parking was immediately adjacent to the driveway, even if the route of the driveway had been defined. With the route of the driveway being undefined, it is impossible to ascertain whether any parking even might be immediately adjacent to it.
- I therefore turn, with all of those matters in mind, to each of the allegations.
- Allegation one: this is evidenced, as are all of the parking allegations, by photographs. The photographs relevant to allegation one are at pages 73 and 74 of the trial bundle. It is absolutely clear from Mr Davies’ notes on the first photograph that Mr Davies regards any parking other than on the orange land and the pink land as an encroachment.
- I think, therefore, for the purposes of this application, I need to be very cautious when Mr Davies describes an incident as involving an encroachment or an obstruction; this photograph illustrates this. It shows Mr Sommerville’s Isuzu vehicle parked on what must be pink land and blue land.
- The encroachment to which Mr Davies refers is encroachment into the blue land. For reasons I have already explained, the blue land has nothing to do with the application. The vehicle may also being parked in part of the driveway, but I cannot tell one way or the other from the photograph whether this is the case or not.
- It follows that the alleged breach has not been proved.
- Allegation two: the relevant photograph is at page 75 of the bundle. This allegation is not proved for exactly the same reasons as I have given in respect of allegation one.
- Allegation three: this is a trespass allegation, and I have already indicated that it cannot proceed. The evidence in respect of it was, however, fully rehearsed, and I consider it appropriate to say something about it, because it reflects upon my view of Mr Sommerville.
- Having heard the evidence in respect of allegation three and having heard full submissions from counsel in respect of it, I am satisfied so that I am sure that the incident occurred substantially as described by Mrs Harley Davies. That is, Mr Sommerville came onto Mr Davies’ land in the face of objections from Mr Davies and from Mrs Harley Davies, and committed an assault and battery in the course of which he struck Mrs Harley Davies three or four times.
- Allegation four: this returns to parking allegations; the relevant photograph is at page 82 of the trial bundle. This is the first of a number of photographs which comprise stills from Mr Davies’ CCTV system.
- I think I need to make the point that the angle at which the system is set up makes it very difficult to judge the relative positions within the Outer Bailey. For instance, it appears from this photograph that there is some tarpaulin, or perhaps other blue material or matter, in front of the gates, but in fact, this material is to one side of those gates. This difficulty with the perspective is going to be relevant to a number of the allegations.
- As regard to the photograph itself, however, it shows Mr Sommerville’s JCB. It is clearly stationary because one of its legs is down and given that it is behind parked vehicles to one side and close to the pinch point, I consider that it is obviously on the driveway.
- Mr Sommerville’s explanation is that he temporarily stopped the JCB whilst the postman’s van was stopped in the drive. Since the postman’s van can be seen in the photograph, I suspect that this is probably correct, and accordingly that stopping the JCB in those circumstances cannot properly be described as parking it.
- There is no breach in respect of the three vehicles for the same reasons that I gave in respect of allegation one.
- Allegation five: the relevant photographs are at pages 83 and 84 of the bundle. This is one of a number of allegations in respect of which there are two CCTV stills, each of exactly the same time; this is rather odd. Two stills, say, 20 minutes apart, might establish that parking had taken place, whereas two stills at the same time do not necessarily do so.
- In this case, insofar as the stills show parking, I am not satisfied that they show parking on the driveway, and the allegation is not proved.
- Allegation six: the relevant photograph is at page 85 of the trial bundle. I think the white car shown in that photograph is probably parked on the driveway. However, I cannot be sure, and accordingly, the allegation is not proved to the standard required for a committal application.
- Allegation seven: the relevant photographs are at pages 86 and 87. The combination showed in these photographs are a tractor, trailer, and car, must, if they are parked, involve some parking on the driveway.
- Mr Sommerville described his tractor as “momentarily paused” on this occasion. Given that the two photographs are from the same time, I accept that this may be correct. I think it is probable that the black car shown on the photograph is on the driveway, but I cannot be sure. The allegation has therefore not been proved.
- Allegation eight: the relevant photographs are at pages 88 and 89. The combination of horsebox and black four-by-four vehicle shown in these photographs must, if they are parked, involve some parking on the driveway.
- Mr Sommerville’s explanation is that these are likely to be visitors to James’ business, that he had not given them permission, and was unaware that they were there. This may be correct, and there is certainly no evidence which directly disproves it, and the allegation has therefore not been proved to the required standard.
- Allegation nine: the relevant photographs are pages 90 and 91. The combination of black four-by-four vehicle and trailer and a grey four-by-four vehicle must, if they are parked, involve some parking on the driveway.
- Mr Sommerville responds that the vehicles are attended. This, it seems to me, is no answer. If a vehicle is parked, it is parked, whether it is attended or not. He also states, however, that these are visitors to James’ business to whom he did not give consent, and of whom he had no knowledge. This, again, may be correct, and the allegation has not been proved to the required standard.
- Allegation 10: the relevant photograph is page 92. I consider that the white vehicle shown on that photograph is probably parked on the driveway, but the uncertainty from the perspective of the photograph, and the undelineated and unascertained line of the driveway, means that I am not sure. The allegation has not been proved to the required standard.
- Allegation 11: the photograph is on page 93. This appears to show a four-by-four vehicle owned by a vet. It is clearly parked, notwithstanding that it is attended. I am not sure, however, that it is parked on the driveway, so the allegation is not proved.
- Allegation 12: the relevant photograph is page 94. This shows Mr Sommerville’s Isuzu four by-four possibly emerging from the drive into Holly Cottage. It is clearly stationary since the driver’s door is open, but it is by no means clear that it is parked, or indeed that it is on the driveway. The allegation has therefore not been proved.
- Allegation 13: the relevant photographs are at pages 95 and 96. This shows a truck which, if parked, must be, at least in part, over the driveway. Mr Sommerville’s response is that the truck is manoeuvring. Given that the two photographs relate to the same time, I do not think I can exclude this as a possibility. The allegation has therefore not been proved.
- Allegation 14: the relevant photographs are at pages 99 and 100. This shows Mr Sommerville’s Isuzu and a trailer. It is clearly on the driveway. Mr Sommerville describes it as manoeuvring or momentarily paused. This may well be right. The allegation is not proved.
- Allegation 15: this is a trespass allegation, and I have already indicated that it cannot proceed. The alleged trespass was by James Sommerville rather than Mr or Mrs Sommerville. It is recorded on a video from the CCTV, which was adduced in evidence.
- I think I should record that Mr Davies and Mrs Harley Davies appear to show commendable restraint in the face of extremely unpleasant and aggressive behaviour by James.
- Allegations 16-19: these are, in effect, one incident. Mr Sommerville, because he could not get his way with regard to some aspect of the Pigeon Cote building, obstructed the driveway in front of Mr Davies’ gates with a piece of agricultural machinery known as a grader.
- Mrs Harley Davies, then, because she could not get her horsebox into the Inner Bailey, parked it on the driveway. She appears to have parked it obstructing the route into Holly Cottage, possibly in order to make a point about the obstruction by the grader.
- James Sommerville then parked his horsebox directly in front of Mrs Harley Davies’ horsebox, preventing her access to the highway. The explanation that this was done because it would not have been safe for James to park on the road is plainly nonsense; the horsebox was parked there in order to inconvenience Mrs Harley Davies.
- Mr Sommerville then blocked in Mrs Harley Davies’ horsebox from behind initially with a digger, and thereafter with another vehicle. These vehicles must have been parked on the driveway, and the obstruction with the grader, the failure to require James to remove his horsebox, and the parking of vehicles behind Mrs Harley Davies’ horsebox, were all obvious and blatant breaches of the undertakings by Mr Sommerville.
- The grader remained in place for two days until it was removed by Mrs Harley Davies’ son. The obstructions around the horsebox remained in place until 16 September 2021; the total period of such obstruction was 45 days.
- Mr Sommerville has admitted these alleged breaches. I find them proved on the basis of his admission.
- Mrs Sommerville’s position is that she knew of the obstruction but did not participate in it, and actively sought to discourage both James and Mr Sommerville from pursuing it. Given that she does not or did not drive any of the vehicles involved, and so could not physically move them, if her evidence is correct, I accept that there was nothing more that she realistically could do.
- Her evidence at least might be right, and the case against her in respect of these incidents has not been proved.
- Allegation 20: the relevant photograph is page 101. It appears likely that the events up to 16 September 2021 came to an end because that was the day a new tenant was to move into Mr and Mrs Sommerville’s property at Pigeon Cote.
- The tenant’s removal van and motorhome are shown on the photograph. I think that they are, at least in part, parked on the driveway, but I cannot be sure, and the allegation has not been proved.
- Allegation 21: the relevant photograph is page 143. This relates to the tenant’s motorhome. I am not sure that it is on the driveway, and the allegation has not been proved.
- Allegation 22: the relevant photograph is page 144. This again relates to the tenant’s motorhome. It is in a different position, but again, I am not sure that it is on the driveway, and the allegation has not been proved.
- Allegation 23: this relates to 4 October 2021. Mr Davies engaged some builders to carry out some work of which Mr Sommerville disapproved. Mr Sommerville used two motor vehicles to park on the driveway to block the builders in. Those vehicles remained there some hours, notwithstanding requests made to him that they be moved.
- It was an obvious and blatant breach of the undertaking by Mr Sommerville. The incident only ended by Mr Sommerville being arrested by the police, and the police arranging the removal of the vehicles.
- Mr Sommerville has admitted the breach and I find it proved on the basis of his admission.
- Mrs Sommerville’s position is that when she became aware of the situation, Mr Sommerville had already been arrested. He was in possession of the car keys so she could not move the vehicles. This has the ring of truth, and the allegation against her is not made out.
- Allegations 24, 25, and 26: these are three separate occasions, the photographs at pages 102, 103, and 104, respectively. I am not satisfied that the white van shown in those photographs, or the other vehicles, are parked on the driveway, and the allegations have not been proved.
- I have not yet said much about Mrs Sommerville, except specifically in relation to allegations 16-19 and 23. Where I have expressed my view that parking has not been proved, she is obviously not in breach. In both cases where parking has been demonstrated, her position is that she rarely goes into the Outer Bailey, or the “yard” as she preferred to describe it and did not know of those incidents. There is no evidence to contradict this in respect of those occasions, and accordingly, I do not find that any of the alleged breaches have been proved against her to the standard required.
- That deals with the allegations set out on the schedule. I am now going to make three observations for the benefit of both defendants.
- Firstly, these undertakings remain in force, and they continue in force after today until they are discharged. The fact that many of the allegations against them have not been proved does not mean that similar allegations will not be proved on a future occasion.
- In many of the cases that I have dealt with, it seems to me the evidence has fallen short of proving the allegation, but it may be that the evidence could be assembled in respect of future alleged incidents which do prove matters to the requisite standard.
- Secondly, it seems to me that the boundaries of the driveway need to be determined or agreed and marked out on the ground. This will be to everyone’s benefit. I note that Mr Davies had suggested this long ago on 3 September 2018. I note that Mr Sommerville has recently suggested it, but I doubt his good faith in the matter given that he did not take Mr Davies up on his suggestion in 2018. It seems to me it will be to everyone’s benefit to know where they can and cannot park.
- Thirdly, I think both defendants need to be aware that the behaviour of their son James, not just in respect of the incident on 22 June 2021, but generally with regard to parking by him and his visitors, risks putting them in breach of the undertakings in future, and indeed risks him being in contempt of court.
- If his parents cannot control him whilst he is on their land, ultimately either the civil or possibly the criminal courts may be asked to do so, and the means of such control available to both civil and criminal courts are fairly blunt instruments.
- I am also going to make two further observations about my impression of Mr Sommerville so that both he and Miss Feng know what is in my mind as I consider the appropriate penalty for the breaches which have been admitted.
- Firstly, having regard to the events of 24 July to 16 September 2021, 4 October 2021, and also 22 September 2018, as I have found them to be, also, having regard to the correspondence which is in the trial bundle dated 27 July 2021, pages 131-32 of the bundle, 16 August 2021, pages 127-130 of the bundle, and 27 September 2021, page 137 of the bundle, I get the very firm impression of someone who demonstrates an arrogant refusal to recognise that he cannot always have his own way.
- He clearly dislikes the terms of the Tomlin order and blames his former solicitors for them and appears to show no intention of being bound by them, even insofar as they are reflected in undertakings given to the court. He even expresses resentment towards the police for removing vehicles which he had parked deliberately to cause inconvenience to Mr Davies’ builders.
- Secondly, and overlapping with the first point, I am not impressed with the perfunctory apologies which have been offered for the breaches which have been admitted. I have seen nothing, either in those apologies or otherwise, which is indicative of any genuine remorse, and nothing which gives me any reason to believe that similar incidents will not happen in the future.