Harre J
IN THE GRAND COURT OF THE CAYMAN ISLANDS
HOLDEN AT GEORGE TOWN, GRAND CAYMAN
CAUSE NO. 169/92
BETWEEN:
SUSAN WILLIAMS
PLAINTIFF
AND:
(1) TANIA RAMGEET
(2) ESTHER EBANKS
DEFENDANTS
For the plaintiff: Mr. E. E. Bergstrom
For the defendants: Mrs. E. Maierhofer
JUDGMENT
The contempt alleged is breach, on 9th and 25th June 1992, of an ex parte injunction. The order was made on 25th May 1992 and restrained the defendants in relation to the plaintiff's home and place of work, and from assaulting, molesting or otherwise interfering with the plaintiff until further order.
Ex parte injunctions are for cases of real urgency. Yet the ex parte summons was filed on 12th May 1992 for hearing on the 19th. The order itself was dated 25th May, filed on the 27th and served on the 28th. There was ample time within that period for an inter partes hearing. Be that as it may, the order of the court was made, it was in place, and it was served,. The first defendant knew full well of the order at the time of her alleged breaches of it on 9th and 25th June.
However, the thrust of her objection is not that the order was not served but that the copy which was served did not bear a penal endorsement. On that basis this case is distinguishable from United Telephone Company v. Dale (1884) 25 Ch D, which in any event arose from a consent order.
It is however, claimed on behalf of the plaintiff that a further a copy of the order, endorsed with the penal notice was served on 21st August, and there is an affidavit to that effect. There are matters of concern in relation to that which I shall be taking up in another way, but it suffices now to say that if there was a fatal bar to the enforcement by committal of the order which was served before the alleged incidents complained of (and there is no suggestion that the defendants came to know of the matter in any other way which would justify service being dispensed with) it cannot be corrected by the service of another document thereafter.
A somewhat similar situation was considered in Lewis v. Lewis (1991) 3 ALL ER 252, a decision on appeal from a decision in the English County Court. I shall not refer in detail to that case, since in my view what I have just said is a matter of simple common sense.
There was, however, a significant difference between Lewis v. Lewis and the present case. In Lewis the order was not served at all until after the alleged breach. The question of whether service could be dispensed with in the circumstances of that case was canvassed. That issue does not arise in the present case, since the order was served on 28th May, albeit without the penal notice endorsed. In considering the consequences of that, I must now indicate my view of the nature of a penal notice and the procedures relating at it. Insofar as they are relevant to the present case they are to be found in Order 45 rules 5 and 7 of the Rules of the Supreme Court. Paragraph (4) of Order 45 rule 7 provides that the penal notice must be endorsed on the copy of the order served under the rule. That implies that it is not part of the order itself, since there will be other copies on which the endorsement need not appear. But, in the words of note 45/7/6 at page 734 of the 1992 Edition of th Supreme Court Practice "it is a necessary condition for the enforcement of a judgment or order under rule 5 by way of sequestration or committal that the copy of the judgment or order served under this rule should have the requisite penal notice endorsed thereon". It is that very remedy - committal for an alleged breach of an order which was served without that
necessary condition being complied with—which is being asked for in the motion now before me. That is fatal to the remedy and on that basis I must dismiss the motion today. However, I will make some observations for the benefit of the first defendant. It is acknowledged by both sides that a copy of the order bearing the penal notice was served on her at the latest by 28th August, and it is not my view that the plaintiff needed the courts leave to do that. Should there be a breach of that order in future, I see at this stage no reason why her whole course of conduct since the order was first served should not then be a matter for consideration by the court.
The breaches, if breaches there were, on 9th and 25th June, have not been investigated at all. All that has been decided today is that for a procedural reason such breaches as there may have been cannot be punished by committal to prison.
That deals with the substance of the motion. There were, however, other matters raised on behalf of the first defendant which call for some observations from me. I was invited to discharge the injunction of my own motion on the ground that it is an abuse of the process of the court. In addition to the matters which I have already dealt, it was submitted that, as well as the injunctive order, a copy of the ex parte summons and the affidavit in support of it should have been served to enable the defendants to consider their response under the liberty to apply.
Moreover, it is said that the writ was not served on the first defendant until 28th August and the second defendant has never been served with the order and the writ at all.
I am bound to say that in my view this problem arises in part at least from the practice which has grown up in this court of granting ex parte injunctions "until judgment or further order" rather than for a short period of days. That has advantages in some cases in a jurisdiction such as the Cayman Islands, but it does put the onus on a defendant to apply to discharge the injunction rather than on the
Plaintiff to justify its continuance at an inter partes hearing. In the latter case, the summons for continuance of the injunction until trial or further order would be accompanied by the affidavit of merits used on the ex parte application.
It is also desirable, in my view, in order to avoid the second of the problems encountered by the defendants, to provide in any urgent injunction obtained before issue of the writ that it be issued and served forthwith. I can, however, find no authority for the proposition that it is mandatory to serve a copy of the summons and evidence in support with a copy of the ex parte order obtained. This is a non-molestation order and while I appreciate the defendants' difficulty it would be quite wrong, in my view, for me to discharge it of my own motion as an abuse of the process of the court. The defendants have their liberty to apply if they wish to do so, and they now know the issues.
G.E. Harre
Judge
11th September 1992