Proctor -v- Morcillo

CivilCounty CourtJudgment

Case Number: H00WJ128

In the County Court at Walsall

18 October 2022

Before:
His Honour Judge Boora

Between:
Proctor
-v-
Morcillo

MR J GALE appeared on behalf of the Claimant
NO APPEARANCE by or on behalf of the Defendant

Approved Judgment

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HHJ BOORA:

  1. I now move to pass sentence. Sending somebody to prison is a big step. But it is a necessary step where one has been guilty, as the Defendant has in this case, of a flagrant breach of a court order. Should I sentence the Defendant to a term of imprisonment? This is a financial case. It involves a breach of an order which requires the Defendant to send information to the other party. This is to facilitate the sale of a property. One could argue that breach of such a requirement should never be met with a sentence of imprisonment; because it is a civil matter involving property and money.
  2. However, there is a public interest in ensuring orders are obeyed. Furthermore, the Court in this case made it clear to the Defendant that it was taking the matter seriously. The case came before His Honour Judge Mithani on 31st August 2022. If the Defendant, up to that point, was not aware that there could be serious consequences if he did not comply with the requirements, the terms of the 31st August order would have enlightened him. The judge listed the matter for today. I am satisfied that the Defendant knows of Judge Mithani’s order, and therefore, of today’s hearing. I was shown an email sent on behalf of the Defendant which clearly reveals that he knows of the order. Despite this, he has failed to attend today. I have also looked through the Claimant’s affidavit. Repeated attempts were made to get the Defendant to comply, but to no avail.
  3. What should be my sentence? I am satisfied that a sentence of imprisonment is justified. The breach is egregious. How long should the term be? Are there matters which would put this case in the category of requiring months or weeks? Arguably, yes. There has been a flagrant breach on the part of the Defendant. Repeated requests were made to persuade him to comply. His failure has led to costs and delay. However, I need to step back and approach this matter dispassionately. I need to look at the purpose of the order. The purpose of the order is to facilitate a sale. There are other proceedings, possession proceedings, which are currently progressing. Ultimately, the Claimant will achieve what she wants through those proceedings. Once she secures possession, she can sell the property as she wishes. The Claimant can recover her costs from the proceeds of sale. Therefore, the underlying purpose of the order can be secured via another means.
  4. This application was not made in order to facilitate the sale of the property. Counsel for the Claimant made clear that it was brought to ensure the Defendant was punished. There is nothing wrong with that. A Defendant who breaches a court order with a penal notice must know that he faces the risk of imprisonment. What should the sentence be? Other than the fact that he has failed to comply, despite repeated requests, in my view there are no other aggravating features. Learned counsel for the Claimant has brought to my attention other examples where the Defendant has acted unreasonably and obstructed the sale of this property. In my view, they are irrelevant to sentence. I need to sentence the Defendant on the breach. The breach, I remind myself, involves the failure to sign documentation and return it to solicitors.
  5. In my view, taking everything in the round, the appropriate sentence of imprisonment should be one of seven days. The prison sentence will be immediate. The Defendant has not attended to draw my attention to matters that might justify suspension.

End of Judgment.