September 8, 2023

Committal for Contempt of Court: London Borough of Camden -v- Ms Jonenaite

County Court Committal for Contempt of Court

Case Number: C5DE47V1

In the County Court at Clerkenwell and Shoreditch

26 July 2023

Before:

District Judge Bell

Between:

London Borough of Camden

-v-

Ms Jonenaite

Judgment

DJ BELL:

I am concerned, today, with an application by the defendant for contempt of court under CPR 81. This is a case which has had a long lead-up to this position. Ms Jonenaite who acts for herself today is the registered leaseholder at 109 Cavendish Manor. The freeholder is the London Borough of Camden. There has been a long history of complaints by Ms Jonenaite regarding the property dating back a considerable number of years.
Back in May 2017, the parties appointed Mark Blooman as a single joint expert. He produced a detailed report setting out a number of items of work to be carried out at the property.
The claimants, Camden, agreed to carry out those works and a Tomlin order in respect of the proceedings, at that time, was agreed. Matters then moved on and there were issues regarding whether those works had been carried out and a further expert, appointed again as a single joint expert, Paul Magrill produced a report dated 18 November 2021, identifying those works that were still outstanding from the Blooman 2017 report and other works that he stated were required.
The matter came before me in August 2022 when there was a trial. At that stage Ms Jonenaite was represented by counsel. To my recollection, Ms Ferber was representing the Local Authority and Mr Morris was representing Ms Jonenaite. They managed to reach an agreement on certain outstanding parts of the dispute and I resolved others. It led to an order being produced, drafted in large part by counsel, with then some disputes as to timings and other issues which I dealt with. Paragraph one of the order, stated that the claimant was by 31 October 2022 to complete items (a) to (e) which were works outstanding from that original 2017 Blooman report, and a penal notice was attached to that paragraph.
Following the issue of the order and for various reasons which do not impact directly on the findings I need to make, the parties agreed that the period for carrying out the works be extended until 30 November. The claimants sought to have those works signed off on 5 December and Ms Jonenaite refused. She had already produced to them a report that she, herself, had arranged to be carried out from Mr Blooman who had inspected the property on or around 8 or 9 November which raised concerns regarding the works. Ms Jonenaite then issued her application for contempt of court. That is dated 20 December 2022 and the matter came before me on 26 April. At that stage, it was the position of Camden that the works had been completed as at 30 November. There were some issues, I recall, as to what date had been agreed for the works to be completed. Ms Jonenaite, very clearly accepted at that hearing, that there had been an agreement to extend the deadline to 30 November.
I gave directions through to today’s trial and that included, at the request of Camden, the appointment of Mr Magrill as a single joint expert and directions for other steps.
Mr Magrill then inspected the property in May 2023 in the presence of the defendant and Mr Singh of the claimant, and I will come back to his report. Since that date, a further witness statement has been served by Camden from Mr Singh and they accept the findings of Mr Magrill, in effect, raising mitigation points and I, today, gave permission for Ms Jonenaite to rely upon her further witness statement of 19 July. While she accepts the matters that Mr Magrill has set out, she also states that there are further issues within paragraph one of my August order that have not been dealt with.
In considering any contempt of court, it is the burden on that person making the application to prove, and I must be satisfied that it has been shown that there has been a failure beyond reasonable doubt to comply with paragraph one of my order.
The defendant’s evidence is attached both to her original application for contempt and her subsequent statement and addresses the issues of access to the property and sets out her concerns regarding the works. She had engaged Mr Blooman to attend in November 2022 during the course of the works and she had sent that report to Camden but, in effect, her position had been they had not taken any heed of it. She said that Mr Singh had attended on a few occasions during the work and that he had attended on 5 December for the sign-off of the works which she had refused.
As to Mr Magrill’s May 2023 report, she accepts that the works he says are outstanding are but she also states that there are extra matters which she addressed in Part 35 questions to him regarding the stripping down of the bedroom windows and issues regarding plasterboard within the kitchen where she contends that Camden have failed to carry out the works I had ordered.
She also stated, today, and my note of the hearing also stated on 26 April, that she does not want Camden’s contractors back inside her property but believes the works to the windows can be carried out from the outside and have to be carried out from the outside given that she is on an elevated position within the block of flats. She also dealt with the issues of access and is quite clear that she has not prevented access save for when she had informed Camden that she would be on holiday and that the contractors did not attend on all days when they stated that they would.
She accepts that she has received two open offers from Camden to settle this matter: the first, she states she responded to, rejecting it. As to the second, she accepts that she did not but does not consider that the offer would be sufficient in terms of the monetary sum that has been offered to her to carry out works given damage to tiles.
Mr Singh is a surveyor within Camden and it fell upon him to oversee the works that were to be carried out. His first witness statement was produced for the hearing on 26 April and the position taken with that was:
(1) to address issues of access; and
(2) to state Camden’s position was that the works ordered had been completed.
His second witness statement, which was served after receipt of Mr Magrill’s report in May 2023, was to accept Mr Magrill’s findings but to state that Camden had relied upon contractors and to indicate that these were minor items, there had been no wilful intention to avoid and they had used every effort to comply.
In his cross-examination, he addressed the issue of works to the plaster in the kitchen. He was questioned as to whether, in carrying out those works, Camden had followed what had been ordered which was to remove any damaged plaster above the kitchen window and to the left of the kitchen window, re-board above the window in foil-backed MR plasterboard, set, skim, render and/or redecorate. He accepted that they had not used foil-backed MR plasterboard because when they had started work on that wall, due to the damp and its condition, they had “hacked” it right back to the bricks, then had put on a cement waterproof cover, allowed that to dry, covered it again with some other substance and then plastered which, in his judgment, created a better solution once they had seen the problem that they faced.
He also was questioned regarding item (e) of my order which was to adjust the casement of the kitchen window so it did not stick. There were issues as to which window this related to. His position was that he had followed the order. He was taken, at my suggestion, to Mr Blooman’s 2017 report. Mr Singh said it was his understanding that they had done the work around where the plaster was, that was the window that they had addressed, and that they had done the work to the window. It had not been the small window at the back of the kitchen to which Mr Magrill in his 2023 report refers.
I asked him a question about Mr Blooman’s November 2022 report which he accepted that he had received but that given that the works were in progress, he had not considered it, although he accepted, with the benefit of hindsight, it would have been prudent to have done so given Mr Blooman was raising issues with ongoing work.
The 2023 Magrill report, very helpfully, set out, in compliance with the directions that I gave, a schedule against the relevant paragraph number of the order, what work Mr Magrill stated was outstanding.
Paragraph (a) had been to strip the paintwork from the external faces of the windows in the bedroom of the property, remove any defective timber back to sand substrata, apply and repair the care resin system and then redecorate with Dulux Weathershield to the recommended Dulux specification, and made reference to certain paragraphs of his 2021 report.
Mr Magrill, from his inspection in 2023 stated that the external redecoration to the bedrooms is improved but he highlighted four elements. Two of those, I accept, relate to the inside face of the windows but two, it is accepted by Camden, are for the external faces of the window, first, at the bottom of those surfaces where the top sash closes and the bottom sash is still not decorated satisfactorily and the external repair sill to the middle window has not been decorated. Ms Jonenaite asked him a Part 35 question regarding this section as to whether he could confirm if resin had been used in the repairs and could he confirm that the preparation of the paintwork, included stripping back the external faces. His response was to state, “When you refer to resin, I presume you mean the repair care system of timber repair”. He could not confirm that was not present. He went on to state “And where you say stripping back to external faces, you mean stripping back to bare timber. I did not witness the works in progress or see any photographs showing bare timber to the external face of the windows or sills. However, this is not always necessary and I do not believe this was specified by Mr Blooman”.
At paragraph(b) of my order, was to require Camden to fit and adjust an aluminium strip
externally to the upper sashes of those windows as identified in answer three. Mr Magrill
stated aluminium strips had not been fitted to the upper sash window rails to deflect rainwater.
Paragraph (c) was to redecorate the inside face of the fixed top sash of the bedroom middle window and he stated that the inside face of the bottom rail of the top sashes of all three windows had still not been decorated satisfactorily. Obviously, I am only concerned with the middle window.
Paragraph 1(d) was to remove any damaged plaster above the kitchen window and to the left of the kitchen window, re-board above the window in foil-backed MR plasterboard, set, skim, render and/or redecorate. Mr Magrill states that damaged plaster above the kitchen window and to the left of the window has been replaced. The damage to the wall tiles below the wall unit to the left-hand side of the casement window tiles was not a matter the Court found at paragraph one. He was, again, asked questions about that as to whether he could establish if foil-backed plasterboard had been used and issues regarding thickness, as to whether it could have been fitted. He stares he could not confirm it had been used because he did not witness the work and gave details regarding thickness.
Paragraph 1(e) related to adjusting the casement to the kitchen windows so that they did not stick. Mr Magrill stated that there was a window which was still catching.
Considering the evidence that I have heard and the admissions made now by Camden, I am satisfied, beyond reasonable doubt, that Camden has failed to carry out certain aspects of paragraph one of my August 2022 order.
In respect of 1(a), they have failed to carry out those two items to the bottommost surface where the top sash closes on the bottom sash, not decorated satisfactorily and they have not carried out the external repair, and the sill to the middle window has not been decorated. I accept that Ms Jonenaite has raised other issues regarding the windows, in particular, as to whether the old paint was stripped off. Mr Magrill visited the property in May 2023 and if he had concerns regarding the works that were carried out, whether the works carried out to those windows met my order, then, in my judgment, he would have raised them and I am not satisfied the defendant has proved, beyond reasonable doubt, that there has been a failure beyond those two issues that Mr Magrill has highlighted in respect of the external part of the windows.
There is no issue regarding 1(b). The works have not been done and Camden does not assert that they have been done.
Likewise, with 1(c), again, there is no issue of Camden saying it has not been done; they
accept it has not been done.
As to 1(d), which is the issue of the plaster in the kitchen, I accept that this has not been done in the manner which was set out in 1(d) of my order which required Camden to put foil-backed plasterboard onto the wall. I have heard a detailed explanation from Mr Singh as to what Camden faced when they carried out the work. He has explained, in detail, why they did not proceed with the plasterboard and carried out an alternative, which, in his view, better solution to the problem. It is, perhaps, a pity that Camden do not seek to agree those works with Ms Jonenaite or to raise with Mr Magrill that they had carried them out in this matter. It is something that seems to have emerged during the course of this trial. I cannot tell whether they are better or not but it is, at least, a technical breach of the order.
As to 1(e), unfortunately, the order that was produced for me by counsel in August 2022 does not specify which window in the kitchen. It is accepted that there are a number of windows in the kitchen. Mr Magrille’s 2023 report appears to relate to the back window, there being windows on the flank. At my suggestion, Mr Singh was taken to the 2017 report of Mr Blooman. His schedule does not specify whether it is the rear or the side window. Section 2.3.6 refers to windows. It states the flank window was satisfactory. Also, a pivot-hung window has a draft stripping affixed to it. The window to the rear is where there has been a complaint of disrepair. He goes on to talk about the window. He then goes on to talk about the evidence of the water penetration above this window and to the left of this window and it is this plasterwork around the window that forms part of the works. It is the plasterwork that Mr Singh states is not on the back but on, effectively, to the side window which they have repaired.
I cannot be sure, beyond reasonable doubt, as to which window it was to have been completed; whether it just a separate issue to the rear window or it is the window to which Mr Singh says that they have carried out and, therefore, there has been no breach proved of that section.
Therefore, in terms of paragraph one of my August 2022 order, I accept that, in part, 1(a) has been breached, 1(b) totally breached, 1(c) totally breached, and what I will call “a technical breach” in respect of the plaster. As such, Camden have failed to comply with paragraph one in those respects and are in contempt of court. That section had a penal order attached to it.
I have heard submissions regarding sanctions and I have also heard and read a clear apology from Ms Insley Ettienne, a senior officer of Camden, both to the Court and to the defendant.
I need to consider what sanction, if any, to impose for the contempt. My ability to impose
such sanctions, of course, relates to a custodial sentence, outright or suspended, sequestration of assets or a fine. It is right that a custodial sentence should only be applied to the most serious breaches of court orders that meet the custodial threshold.
The issue of disrepair at this property has been going on for an extremely long time. Mr
Blooman’s report, to which paragraph one of my order related is dated May 2017; six years ago, and still works have not been completed. Camden were clearly aware that that work was subject to a penal notice and yet, Mr Singh, who, I accept, was brought in to deal with this, left the matters to contractors. He visited a few times during the course of the works. Camden ignored the warnings that were set out in Mr Blooman’s November 2022 report. It may have been that some of the works were still in progress and were to be completed but there should have been alarms going off that these works were not going according to plan and, yet, it is only with the benefit of hindsight that it is accepted by Mr Singh that it would have been prudent to have looked at that and considered it further.
However, Mr Singh got his own opportunity to inspect on 5 December when he sought to have work signed off and yet, the position that Camden took was the works were complete. That is the position that they took at the hearing before me on 26 April, again, to say that the works were complete and raised issues as regards access. Access was a red herring in terms of these proceedings because the position of Camden, whether or not there had been issues with access, by the agreed date of 30 November, they had completed the works, subject to signing off.
It is only on receipt of Mr Magrill’s May 2023 report that the position of Camden changed and we have admissions from Mr Singh in his second statement that admits that this work is outstanding and, if one likes, seeks to blame the contractors on which he relied and to say that they are not major works outstanding. Whether or not the contractors complied, the penal notice was addressed at Camden and it was for them to ensure that the works were done. I accept that they have sought to resolve or put forward offers to avoid this hearing which would put forward a sum of money to Ms Jonenaite to get the works done and, effectively, would absolve them from responsibility. However, my order was addressed to Camden. It was Camden to do the works. Of course, I have had the benefit of having an apology today, addressed both to the Court and to the defendant for the failings of Camden.
The Court has limited tolerance for breaches of its orders and, in my judgment, Camden has disregarded, in part, paragraph one of that order. It did not complete the works, it did not oversee the contractors, it ignored the warnings that were being sent to it by the defendant and it took the position until Mr Magrill’s 2023 report, that it had done the works. It is right that imprisonment is for the most serious breach and this case does not fall into that category. I accept the frustration of the defendant that, still, after six years from Mr Blooman’s report, there are failures. However, that does not mean that it meets that threshold. However, I am satisfied that this goes beyond merely finding the contempt but imposing no sanction. I do consider that there should be a sanction to express the Court’s displeasure as to Camden’s actions and their very late acceptance that there were failings by them.
I accept that they sought to resolve the position but the responsibility for getting the work done fell on them, not on the defendant. There may well be issues regarding Ms Jonenaite and allowing access going forward but this is about completing works by 30 November 2023. I have the ability to impose a fine and, as Ms Piears has rightly reminded me, under section 14 of the Contempt of Court Act, whilst I have unlimited discretion, it is up to £2,500. Taking all the matters that I have addressed, I am going to impose a fine of £1,000.
I hope that the parties can resolve the outstanding issues as to work amicably and without involving the Court further but those are not matters that are before me today.