A2/2001/2121
Neutral Citation Number: [2001] EWCA Civ 1999
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr Justice Nelson)

	Royal Courts of Justice
	Strand
	London WC2

	Friday, 14th December 2001

B e f o r e :

LADY JUSTICE HALE

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CHRISTOPHER MORTON JOLLY
Claimant/Applicant

-v-

THE GOVERNOR HM PRISON WANDSWORTH
Respondent

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Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited
190 Fleet Street  London EC4A 2AG
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The Applicant Claimant Mr C M Jolly appeared in person.

The Respondent did not appear and was not represented.

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J U D G M E N T
1.	LADY JUSTICE HALE: This is an application for permission to appeal against the order of Mr Justice Nelson in the Queen's Bench Division of the High Court on 27th July 2001 dismissing the applicant's claim against the Governor of Wandsworth Prison. The applicant needs a short extension of time, but that would not be a problem if the application had a real prospect of success. He also seeks to rely on certain further evidence. 
2.	The action all arises fundamentally out of the break-up of his marriage. On 21st June 1993 His Honour Judge Hull made an order under section 30 of the Law of Property Act 1925 that the former matrimonial home in Virginia Water, Surrey, be sold and the proceeds divided equally between the spouses. Leave to appeal was refused by the Court of Appeal. On 26th August 1993 there was an order that the applicant allow access to the home for the purpose of putting into effect the previous order. A penal notice was attached to that order. On 12th October the wife applied for him to be committed for failing to do this. On 28th October 1993 His Honour Judge Hull ordered the applicant to give up possession within seven days. He also adjourned the committal application to 1st December 1993. 
3.	The applicant failed to give up possession. The wife made a further application for his committal. That application was returnable on 17th November 1993 at Guildford County Court. The underlying proceedings, however, were in the Staines County Court. The applicant received notice of that. He telephoned Guildford and they confirmed it. He also telephoned Staines and was told that hearings were expected on 30th November and 1st December. He did not go to Guildford on the 17th. In his absence he was found guilty of contempt of court and sentenced to 14 days' imprisonment. His Honour Judge Hull signed the warrant of committal to prison. That warrant was addressed to the district judge and bailiffs of the court, to every constable within the jurisdiction and the Governor of Her Majesty's prison at Wormwood Scrubbs. It was sealed by the Guildford County Court. 
4.	The naming of Wormwood Scrubbs Prison was a mistake. The prison designated by the Home Secretary under section 120 of the County Courts Act 1984 for Staines County Court is Wandsworth Prison. Mr Justice Nelson accepted the evidence of the chief clerk at Staines County Court that a clerk there, Mrs Julnes, had amended the warrant to address it to the Governor of the prison at “Wandsworth” and it was then sealed by the Staines County Court. It was subsequently further amended lower down, where the district judge and bailiff are required forthwith to arrest and deliver the applicant to Her Majesty's prison. Again “Wormwood Scrubbs” had originally been entered and then “Wandsworth” had been substituted. 
5.	On 19th November 1993 the applicant was getting ready to attend a hearing at the Lands Tribunal in proceedings with which he was concerned which related to the former matrimonial home. Two bailiffs and two police officers arrived. He was arrested and taken to Addlestone Police Station and then to Wandsworth Prison. He was imprisoned there for seven days, and one can well understand that that must have been a dreadful experience for a professional man of his standing, from a highly respectable family, who had not previously been in any trouble with the law. He has effectively been trying to clear his name ever since. 
6.	He obtained permission to appeal out of time against the committal order, but that appeal was dismissed by this court. The Court of Appeal found that the committal order had been properly made. The applicant knew when and where the court would be sitting. He knew the consequences of disobeying the order. He failed to attend or to make any application to purge his contempt. That latter conclusion was supported by the applicant's own statement to His Honour Judge Sleeman, when he was applying for permission to appeal, that he had not had enough time while in prison to make such an application. It is also recorded in a judgment of Mr Recorder Hamlyn, in an action against the Chief Constable of Surrey under the Data Protection Act 1984, that there was no attempt to purge his contempt. 
7.	The applicant later tried to bring actions against the circuit judge, the district judge, the bailiff, the chief clerk at Staines County Court and the chief clerk at Guildford County Court. Those actions were struck out. 
8.	This action was begun in the nick of time. It was more than six years from the actual admission to prison, but within six years of his release. He sued the Governor of Wandsworth Prison for false imprisonment, negligence and special damage under section 125 of the County Courts Act 1984. He contended, first, that the arrest and detention were unlawful: firstly, because the Governor was not acting under a warrant; secondly, because the process of arrest and delivery to prison were themselves unlawful; and thirdly, because the warrant was invalid. Secondly, he contended that the Governor was in breach of his common law duties in refusing to let the applicant attend the Lands Tribunal hearing on 19th November 1993 or the Staines County Court for a pre-trial review in relation to his ancillary relief proceedings on 22nd November 1993. Thirdly, he contended that a computer record headed “Inmate Information System” and dated 1st February 1995 was inaccurate and should be erased under the Data Protection Act. 
9.	The findings of Mr Justice Nelson on each of those points were as follows. As to the first contention, he was satisfied, first, from evidence of current practice given by a Mr Wilson from the prison and by Mrs Watt, the chief clerk at the County Court, that he would only be accepted into prison on the basis of a warrant. A stamped copy of the warrant would be prepared by the court for the prison. He also found that the manual record supported this. Secondly, he found that the process was lawful. Under section 119(2) of the County Courts Act 1984 it is the duty of every constable to assist the district judge and the bailiffs in the execution of a warrant. A governor faced with a valid warrant must act upon it. Thirdly, he found that the warrant was valid. It was not the judge's task to choose the prison. The order signed by the judge was accurate in recording what he had decided. Correcting the prison name was simply an administrative task which could be done without judicial involvement. As to the second set of contentions, he held that there was no right of action in false imprisonment for a breach of the prison rules. There was no common law duty to allow the applicant to attend court and, even if he was wrong about that, there was no breach of that duty. In that connection, the judge had earlier refused to allow the applicant to amend his pleadings to allege that, had he been allowed to attend those hearings, he would have been able to apply for his discharge from prison (that is, to purge his contempt). As to the third contention, the judge held that the applicant had not satisfied him that any of the records were misleading or erroneous, so as to justify their erasure. 
10.	The applicant has placed a very full statement of his grounds of appeal, supported with the relevant documentation and reference to authorities, before the court. He has also supplemented some of those points with a skeleton argument and in his representations before me today. I am most grateful for the fullness and the clarity with which he has put forward his case. 
11.	He wishes to pursue eight grounds of appeal. The first is that the inmate information sheet is wrong. The error about which he is deeply concerned is that it states “450 contempt of court”. He believes that 450 is a court code and refers to St Albans Crown Court. Of course, he was never before the St Albans Crown Court. For the purpose of this ground the point made is that, that information being wrong, the prison cannot have had the warrant at the time. The difficulty about that is that the judge heard evidence about the practice of admission to prison, which he accepted, and he also relied upon the manual record and concluded, on the evidence before him, that the applicant was admitted to prison on the basis of the warrant. Whatever else, therefore, may be said about the inmate information sheet, it does not support this ground of appeal. 
12.	The second ground of appeal relates to the Treasury Solicitor's refusal to make arrangements for the inspection of documents. The applicant is particularly concerned about this, and one can understand that in the circumstances because his concern was that documents might have been tampered with - Snopaked over or otherwise altered. He says that he proposed at particular times to go and inspect the documents in person, and this was not taken up. The difficulty with that is that the time to pursue that would have been before the master who was managing this case and before the judge. The applicant tells me that he did pursue it before the judge, but the judge decided that it was not a sufficient basis for him to refuse to continue with the case or alter his factual conclusions. Those matters are now water under the bridge and this court would not set aside the whole trial for that reason. The judge's decision was in any event based largely on the oral evidence. 
13.	Thirdly, he argues that the alteration rendered the warrant invalid. He points out that amendments under the slip rule require judicial approval and in any event he points to authorities which suggest that committal orders cannot be altered in that way: in particular, Smith v Smith (Court of Appeal transcript 355), a decision of the President on 29th July 1983. That related to a committal order which did not set out the facts found on the basis of which the decision had been made. The question arises as to whether the nomination of a prison for the purposes of a committal for contempt is a matter for the judge at all. Clearly it is not. Under section 120 of the County Courts Act it is for the Secretary of State to nominate a particular prison to be used for this purpose by each court and it is simply a matter of filling in the right prison. It is purely a mechanical question. In those circumstances the warrant was not invalid and the Governor was entitled to act upon it. 
14.	Fourthly, he argues that it was wrong to assume that police officers could act under the County Courts Act, which is different from the Magistrates' Courts Act. However, the County Courts Act expressly makes it a duty upon constables to assist in the execution of warrants. All police officers are constables and clearly there was nothing unlawful about their assisting in the execution of this warrant. 
15.	Fifthly, he argues that the judge was wrong to say that the Governor has no common law duty to allow access to the courts. There is a common law duty to allow unimpeded access to the courts to prisoners. That is based on the decision in Raymond v Honey [1982] 1 All ER 756. He argues that the Governor had failed to justify the exercise of his discretion. There is, of course, a difference between impeding access to the courts and allowing a party to attend court. That distinction was clearly drawn by Lord Denning MR in Becker v The Home Office [1972] 2 QB 407. I agree that a Governor must not place unjustified obstacles in the way of a prisoner's access to the courts, whether by communication to his lawyers or indeed by attendance at court. But that is not the same as saying that a Governor is under a duty to allow a prisoner to attend court whenever he asks. There are, as the applicant rightly points out, various powers for securing prisoners' attendance, either as witnesses or as parties, before the courts; and he particularly refers to section 29 of the Criminal Justice Act 1961 (which, as I understand it, was the provision then in force); this gives the responsible minister the power to direct that a prisoner be taken to any place if it is desirable in the interests of justice for that to take place. So there would have been power to allow him to attend these hearings. 
16.	The applicant allies that point with something about which he feels particularly strongly, which is that in the defence the defendant denied knowledge of his appointment before the Lands Tribunal on the very day of his admission to prison; yet the first in the list of documents supplied on disclosure by the defendant was a letter to him from the Lands Tribunal giving the date and time of that hearing. He therefore asked the defendant formally to admit certain facts and the defendant did formally admit that he was indeed due to appear that day before the Lands Tribunal. The defendant did not admit knowledge of that. Still less was there any allegation which was explored in the evidence that there had been a specific application for permission to take him there. Normally, under section 29(2), it would be in custody and normally the prison would be entitled to ask the prisoner to pay the costs of that transport and custody. 
17.	All that, however, does not affect the outcome of the current case because Mr Justice Nelson was right to say that this would not turn a lawful imprisonment into an unlawful imprisonment, and that was the cause of action in issue in this case. It is too late now to invoke a quite different cause of action (whatever that might be), for which the evidence would have to be different from what it was in this case, in order to pursue a complaint that a proper request was made to allow attendance and that that request was wrongfully refused. There is no reason at all to think that being allowed to attend the Lands Tribunal or the ancillary relief pre-trial review would have resulted in an earlier discharge of the applicant: quite the reverse. He did not make an application to purge his contempt. Of course, purging his contempt would have involved agreeing to get out of the house, and there is no evidence that he would have done that. So those matters do not affect the claim that was before the learned judge on this occasion. 
18.	Sixthly, he argues that the defendant can only hold personal data for specified purposes. He argues that the administration of justice does not cover its retention here. He is concerned about the fact that in his view the computer record suggests that it was a Crown Court committal, when in fact it was not. Any such suggestion would obviously have had to have been explored thoroughly in the evidence. But in so far as the data had been kept, it had clearly been kept for the purposes of these proceedings. If at the end of these proceedings it is not erased, that will be a completely different matter and then some other justification might have to be explored. 
19.	Seventhly, it is argued that the order of 28th October was issued without jurisdiction. That contention cannot stand, given that the Court of Appeal dismissed the appeal against it. 
20.	Finally, it is argued that Mr Justice Nelson's ruling in respect of the attendance at the Lands Tribunal and the Staines County Court was too broad. That is in effect a challenge to the exercise of his discretion not to allow the amendment to the pleadings which I have described. That is, of course, a discretionary decision which has to be based upon many considerations, including justice to both parties. It seems to me that to have allowed such a substantial amendment to the pleadings at such a late stage in the proceedings would in itself have been questionable, and there is no basis for holding that that decision was so plainly wrong that this court would interfere with it. 
21.	Therefore, for all those reasons I see no real prospect of a full court granting this appeal on any of the grounds so ably presented by the applicant and I would refuse permission to appeal. 
Order: application for permission to appeal refused.