Davies v Lettington - Appeal Against Injunction Breach Finding

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  Davies   v Lettington [2026] EWCA Civ 364 (27 March 2026)

URL: https://www.bailii.org/ew/cases/EWCA/Civ/2026/364.html
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[2026] EWCA Civ 364 | | |
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| | | Neutral Citation Number: [2026] EWCA Civ 364 |
| | | Case No: CA-2025-003015 |
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT SWANSEA
His Honour Judge James
Case No: K00CX043

| | | Royal Courts of Justice
Strand, London, WC2A 2LL |
| | | 27/03/2026 |
B e f o r e :

LORD JUSTICE PHILLIPS
and
LORD JUSTICE FOXTON

Between:
| | RUTH DAVIES | Appellant |
| | - and - | |
| | PAUL LETTINGTON
AMANDA LETTINGTON | Respondents |

**Rupert Bowers KC and Ian Jobling (instructed by Karen Todner Ltd) for the Appellant
Juan Lopez (instructed by Berry Smith LLP) for the Respondents

Hearing dates :19 March 2026**

HTML VERSION OF APPROVED JUDGMENT ____________________

Crown Copyright ©

3. This judgment was handed down remotely at 10.30am on 27 March 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
5. .............................
7. Lord Justice Foxton :
9. The Appellant, Mrs Davies, appeals against the order of HHJ James ("the Judge") on 19 June 2025 finding that Mrs Davies was in breach of an injunction the Judge had granted in favour of the Respondents ("the Lettingtons") on 17 October 2024 ("the Injunction").
11. The basis of the appeal is that the Judge wrongly refused Mrs Davies' application to adjourn the hearing to give her an opportunity to obtain publicly funded legal representation.
13. The background
14. The appeal arises out of a dispute in relation to land which once formed part of a single farm known as Coedmor farm, near Llangoedmor, Cardiganshire. In 1989, Gardners Cottage which had previously formed part the farm, was transferred into separate ownership and it came to be owned by the Lettingtons. Mrs Davies is the freehold owner of the farm. A dispute arose as to the boundaries between the cottage and the farm, the right of the Lettingtons to fence those boundaries and whether and to what extent the cottage enjoyed a right of way along a particular track and associated rights. The Lettingtons claimed that Mrs Davies had taken steps to interfere with the right of way and the maintenance of the track, as well as obstructing the track and persons seeking to use it to visit the cottage.
16. The Lettingtons brought proceedings against Mrs Davies and her son in respect of the alleged interference, seeking relief which included orders requiring the Davies to undertaken certain reinstatement work and remove certain fences and materials. Mrs Davies had legal representation in the proceedings until 1 July 2024, after which she represented herself.
18. There was a four-day trial before HHJ James between 19 and 22 August 2024, which included a site visit. The Davies did not file evidence in accordance with the court's directions, and by reason of that failure were not permitted to adduce witness evidence at trial. However, they were permitted to challenge the Lettingtons' evidence.
20. The Lettingtons succeeded in their claims. On 17 October 2024, the Judge granted the Injunction which required Mrs Davies to remove certain fences, fence posts and other materials from specified areas, to reinstate a previous road gate and to carry out certain works. The Injunction contained a penal notice.
22. On 2 December 2024, Pepperall J refused an application for a stay of execution of the Injunction. An application for permission to appeal against the Judge's ruling was refused by Nicklin J on 6 February 2025 who certified the application as "totally without merit" and refused a further stay application.
24. The Lettingtons contend that Mrs Davies did not comply with the Injunction and they applied to commit her for civil contempt by application dated 17 February 2025. That application was made on Form N600 which provides:
26. "You have the right to be legally represented in the contempt proceedings.
27. You are entitled to a reasonable opportunity to obtain legal representation and to apply for legal aid which may be available without any means test."
28. That wording reflects the requirements of CPR Part 81.4(2)(i) and (j) which provide that a contempt application must state the following:
30. "(i) that the defendant has the right to be legally represented in the contempt proceedings;
31. (j) that the defendant is entitled to a reasonable opportunity to obtain legal representation and to apply for legal aid which may be available without any means test."
32. The Lettingtons' application to commit Mrs Davies for breach of the Injunction was listed for 24 March 2025 before HHJ Harrison.
34. On 20 March 2025, Mrs Davies filed a witness statement, in which she described herself as a "litigant in person", and stated:
36. "My ill health had a huge impact on my ability to engage in this Court action and especially during the spring of last year when crucial deadlines were required to be met but were missed as I was in effect suffering some form of breakdown. I have been prescribed medication which was steadily increased over April, May and June last year which has enabled me to start to recover, but there are side effects to these medications which still impact my ability to undertake tasks."
37. In the event, Mrs Davies was represented by direct access counsel at that hearing. The hearing was adjourned to allow Mrs Davies an opportunity to comply with the Injunction and/or to file evidence of compliance if she wished. We are told that the issue of legal aid was not raised at this hearing.
39. It is the Lettingtons' case that the order was still not fully complied with, as a result of which the committal application was restored, this time before HHJ James, on 19 June 2025. Mrs Davies attended that hearing as a litigant in person.
41. The hearing of 19 June 2025
42. A supplemental skeleton was served by the Respondents on Mrs Davies for the resumed committal hearing on 18 June, and on the same or preceding day, Mrs Davies personally sent a bundle of documents to the Respondents' solicitors. There was no suggestion of any documents being sent to counsel for Mrs Davies, and no skeleton was filed on her behalf by a legal representative (although Mrs Davies filed her own skeleton on the morning of the hearing). While Mr Lopez submitted that the Respondents had no knowledge that Mrs Davies would be appearing without legal representation at the hearing until the hearing started, the signs were there to be read that this might very well be the case.
44. At that hearing (references being to the transcript):
46. i) The Judge informed Mrs Davies that she was entitled to legal representation for the committal hearing and that "in certain circumstances, public funding can be available" (2G).
47. ii) Mrs Davies said she did not have the means to pay anybody, and the Judge stated that he did not know whether public funding was available and it was not part of his role to advise Mrs Davies about that (3B).
48. iii) The Judge informed Mrs Davies that "you don't have to say anything. A party in your position can remain silent. The Court may draw an adverse inference from that" (3D). He also told her that "it is a matter of you ? whether you choose to give evidence or not, but it is important that you keep focussed on what this application is about" (3D).
49. iv) Mrs Davies expanded on her attempt to obtain legal representation, saying she was told that it was not available "because of the timescale that was required" and "because there's no legal aid" (4B).
50. v) The Judge suggested that the availability of legal aid might depend on Mrs Davies' means, but he did not know and was not in a position to comment, saying it was Mrs Davies' responsibility to make the appropriate enquiries (4C).
51. vi) Mrs Davies asked if the case could be adjourned because she had been told by a local solicitor that there was no legal aid for civil cases (4E).
52. vii) The Judge's immediate response to the suggestion of an adjournment was "no", but he went on to state that he was not saying that legal aid was available, and that the solicitor would know the rules (4F). The Judge ruled that the committal application should proceed (5B).
53. viii) Mrs Davies also mentioned that she had approached the law clinics at four universities for pro bono legal assistance but that the waiting time for obtaining such assistance was six months (5C-D).
54. ix) The Judge reiterated that he would deal with the Lettingtons' application, given that this was the second listing of it (5E), stating that he would address the issue of breach of the Injunction at this hearing, and it might be possible for Mrs Davies to obtain legal representation for any hearing dealing with sanction if a breach was made out (6A).
55. The Judge then proceeded to hear the committal application, with counsel for the Lettingtons setting out their case on breach of the Injunction. The Judge then explained that Mrs Davies had a choice between giving evidence herself, in which case she would face cross-examination by the Lettingtons' counsel, or making submissions by reference to evidence already before the court such as documents in the bundle or which had been exchanged, in which case Mrs Davies would not be able to rely on her own oral evidence which "carries greater force" (41D-H).
57. Mrs Davies responded, "I want to give evidence that I'd put forward as emails to show that we have bought the substrate ?" (42A). The Judge ascertained that there was no objection to Mrs Davies making submissions by reference to the documents she had recently filed, save for an issue as to the status of a document purporting to offer expert evidence. He then concluded: "so you want to do it by submissions, Mrs Davies" (42G). That understanding was not said to be wrong.
59. Mrs Davies then took the Judge through those documents, offering various comments upon them (e.g. at 45B-E, 55B-C) and also other explanations of the current state of the works (e.g. at 58F-H and 60F-G).
61. The Judge retired for a short period and then delivered an oral judgment. At the start of the judgment he stated:
63. "I have emphasised and reminded today the Defendant of her rights in terms of legal representation. She has indicated that she is not in a financial position to obtain such representation. She has stated there is no availability, and for example cited free legal advice from universities which she said she had a waiting list in excess of six months."
64. There was no suggestion in the judgment that the Judge did not believe that evidence, or that he regarded it as insufficiently particularised or supported to be relied upon.
65. The Judge found that breaches of paragraphs 3.1, 3.3(1) and (3) and 3.7 of the Injunction had been made out to requisite standard, and that the breaches were deliberate. He directed the issue of sanction be dealt with at a further hearing (which in the event was listed for 28 July 2025) and encouraged Mrs Davies to comply with the Injunction prior to that date. He advised Mrs Davies to seek legal representation at that hearing.
67. At the end of the hearing, Mrs Davies asked, "what if I can't get legal representation by then? What situation am I in?" The Judge replied: "Well you have to represent yourself".
69. The order was drawn up and issued on 25 June 2025. One of the recitals to the order stated:
71. "The First Defendant was again advised to obtain legal advice and she should make immediate enquiries whether assistance was available pursuant to the Legal Aid Sentencing and Punishment of Offenders Act 2012 and whether Brown v London Borough of Haringey [2015] EWCA Civ 483 is applicable".
72. Neither the statute nor the authority had been mentioned at the hearing or in the judgment delivered at the hearing.
74. Events after the 19 June 2025 hearing
75. On 17 June 2025, Mrs Davies had sought to file an application with the court seeking a variety of relief:
77. i) A declaration that she had acquired certain prescriptive rights in relation to land which was the subject of the Injunction.
78. ii) A variation of the Injunction so far as it concerned the width of the track.
79. iii) Enforcement of a planning condition relating to the Cottage.
80. iv) An order disconnecting water to the Cottage for alleged non-payment of bills.
81. v) An injunction against the Lettingtons to prevent harassment.
82. vi) Removal of her son from the existing order.
83. vii) Reconsideration of the costs order made following the trial.
84. The application was accepted by the court office and processed on 8 July 2025 (after certain deficiencies in the accompanying paperwork had been addressed).
86. On 1 July 2025, Mrs Davies applied to stay enforcement of the Injunction for 14 weeks, for the vacation of the 28 July hearing and for an order providing that the hearing should not be re-fixed for at least 17 weeks to give Mrs Davies time to obtain legal aid.
88. The application to vacate the 28 July hearing was dismissed on paper on 10 July by HHJ Beard, who also rejected an application for reconsideration of that order on 17 July. However, it was made clear to Mrs Davies that she could renew the application orally at the hearing.
90. On 14 July 2025, Mrs Davies contacted the County Court with regard to the forthcoming hearing on 28 July and asking about the scope of that hearing and what was required to comply with the Injunction. In that letter, she referred to the continuing difficulties which she was experiencing in obtaining legal representation, stating that one firm had asked for ?10,000 on account. She referred to an application she had made for legal aid which had yet to be processed due to a cyber attack on the Legal Aid Agency ("LAA").
92. Documents before the court show that on 15 July 2025, Mrs Davies applied to Advocate for pro bono representation at the sanctions hearing. It would appear that Advocate was told that the hearing was due to take place on 21 July 2025.
94. Advocate responded on the same day explaining that the period of time before 21 July 2025 was insufficient for them to deal with the application. She was advised to contact local criminal solicitor firms who accept legal aid cases, and provided with a link to a website listing relevant law firms. She was asked to provide evidence of rejections from five legal aid solicitors "to confirm that you are not eligible for legal aid".
96. The hearing of 28 July 2025
97. Once again, Mrs Davies appeared as a litigant in person at this hearing.
99. The Judge began by addressing the application Mrs Davies had tried to issue on 17 June 2025. This application did not relate to the committal hearing as such, and had the Judge gone on to address the issue of sanctions on 28 July 2025, issues might have arisen as to whether it was appropriate to deal with the 17 June application and the committal application at the same hearing (see [51] below). However, Mrs Davies' counsel did not seek to complain about this feature of the 28 July hearing on the appeal, nor did either party seek to draw any distinction between the different matters addressed in the course of the 28 July hearing, it being accepted that if the orders made at the 19 June hearing were set aside, the orders made at the 28 July hearing would also fall to be set aside. That was a sensible and pragmatic approach by both parties which reflected the extent to which the findings of breach on 19 June had influenced the scope of the later hearing, and the difficulty of disentangling the various matters addressed at the 28 July hearing.
101. In relation to the 17 June application, the Judge stated that Mrs Davies was seeking to re-open matters already determined by the 2024 trial or which, if they were to be raised at all, should have been raised at the trial. The Judge delivered a judgment refusing those applications, on the basis that they amounted to an impermissible attempt to re-litigate matters which had already been determined and/or would involve the court making orders it did not have power to make.
103. The hearing then resumed to deal with Mrs Davies' application of 1 July to adjourn the hearing:
105. i) Mrs Davies informed the Judge that the lawyers she had approached needed more time, referring to an approach to the Public Defence Service made on "10 July and 11 July" (15F), and she stated that she had been unable to secure a meeting with solicitors who were asking for ?10,000 on account (16D-E).
106. ii) Ms Davies referred to certain firms she said she had been in contact with (16F-G), and the Judge noted that Mrs Davies had yet to meet with any solicitors, which Mrs Davies attributed to the short period before the sanctions hearing (18).
107. iii) The Judge also had exchanges with Mrs Davies, and the Lettingtons' counsel, about what steps had been taken to comply with the Injunction.
108. iv) The Judge identified an issue as to whether Mrs Davies had the financial means necessary to perform the mandatory parts of the Injunction (34D-E) and as to the lack of an up-to-date costing for the work (38E).
109. v) The Lettingtons' counsel identified further orders the court might make to give effect to the Injunction (38-39) or for the purpose of establishing Mrs Davies' financial position (40F).
110. The Judge indicated his intention to allow a 28-day adjournment for the work necessary to comply with the Injunction to be undertaken, and stated that if the work was not done, Mrs Davies would need to have applied for legal aid for because she would need legal representation at the resumed hearing (given the risk of sanction) (48A-B).
112. In response, counsel for the Lettingtons suggested it was not known if, given her means, Mrs Davies was eligible for legal aid, with the Judge indicating that there were different means tests for different types of application (49F-H).
114. The Judge then ruled as follows:
116. i) He expressed concern that Mrs Davies was engaging in "a pattern of prevarication", including in relation to obtaining legal representation.
117. ii) He adjourned the sanctions hearing to 29 August 2025, and gave directions for further evidence as to the work required and the cost of the work to be filed by 28 August.
118. iii) He ordered Mrs Davies by 4pm on 18 August 2025 to provide written confirmation of her attendance on a solicitor willing to represent her at the sanctions hearing and that an application for legal aid had been submitted.
119. iv) A costs order was made against Mrs Davies in the sum of ?4,800 for the 17 June application, with the remaining costs being reserved.
120. Events subsequent to the 28 July 2025 hearing
121. Mrs Davies did not serve evidence of the enquiries she had made in respect of legal aid by 18 August, as directed, although she subsequently referred to efforts made in correspondence with the court.
123. By order dated 25 August 2025, the hearing fixed for 29 August was vacated to allow Mrs Davies to continue her enquiries regarding legal aid representation. The hearing was refixed for 23 October 2025, but this hearing had to be vacated because transcripts of the previous hearings were not yet available and there were issues of counsel availability.
125. By 19 September 2025, Mrs Davies had obtained legal representation from the firm of Karen Todner Ltd, following contact first made by Mrs Davies on 22 August. Legal aid was granted on 28 August.
127. On 5 December 2025, Mrs Davies applied for permission to appeal against the Judge's orders made on 19 June and 28 July, which permission, together with the necessary extension of time, was granted on 7 January 2026.
129. Following the grant of an extension of time for an appeal and permission to appeal, the sanctions hearing ? which had been fixed for 9 January 2026 ? was vacated.
131. The grounds of appeal
132. Mr Bowers KC and Mr Jobling for Mrs Davies identified two matters which it is said involved serious procedural irregularities in the hearing of 19 June 2025:
134. i) The Judge failed to give Mrs Davies accurate information about the availability of legal aid for the committal application.
135. ii) The Judge wrongly refused Mrs Davies' application for an adjournment to obtain legal aid and legal representation.
136. However, Mr Bowers KC accepted that the operative ground of appeal was the second (because the provision of accurate information would not have assisted Mrs Davies if she was not able to act upon it). The relevance of the first ground is that it is said that the Judge's misunderstanding of the availability of legal aid for civil committal proceedings was a factor in his decision to refuse the adjournment, which had the effect of vitiating the exercise of his discretion. It was also confirmed at the hearing of the appeal that no free-standing appeal was brought in respect of the order made following the 28 July hearing, it being Mrs Davies' case that if the order made following the 19 June hearing succeeded, the order made at the 28 July hearing would also fall to be set aside. As I have stated, that was common ground.
138. Mr Bowers KC and Mr Jobling also make certain supplementary criticisms of the conduct of the hearings:
140. i) It is said that the Judge wrongly advised Mrs Davies that if she exercised her right to silent, he might drawn adverse inference against her.
141. ii) It is said that the Judge, having correctly informed Mrs Davies that it was a matter for her whether she chose to give evidence or not, asked her on various occasions whether she admitted breaching particular paragraphs of the Injunction.
142. iii) It is said that Mrs Davies stated she did want to give evidence, but the Judge proceeded on the basis that she wished only to make submissions on the evidence otherwise before the court.
143. For the Lettingtons, Mr Lopez (who was not involved in the proceedings before the Judge) submitted as follows:
145. i) It was for Mrs Davies to apply for legal aid in advance of the 19 June hearing and no satisfactory explanation has been offered for her failure to do so.
146. ii) In all the circumstances, the Judge was entitled to refuse the application for an adjournment by reference to his knowledge of the prior history of the case, Mrs Davies ability to represent herself, and the lack of sufficient evidence of efforts on her part to obtain legal representation and/or legal aid.
147. iii) The Court should refuse relief as a matter of its general discretion given the significant delays and Mrs Davies' continuing failure to comply with the Injunction.
148. The applicable law
149. We were referred to a number of authorities addressing the importance of ensuring that defendants facing civil committal proceedings have legal representation if they want it, and the duties of the court in this regard.
151. The first is Hammerton v Hammerton [2007] EWCA Civ 248 in which the applicant, who was unrepresented at the hearing, was committed to prison for three months for breach of an undertaking he gave to the court not to contact his ex-wife. An application by the applicant for contract with his children was heard and determined at the same time as the committal application.
153. At [9], Moses LJ summarised a number of "well-settled" principles relating to committal hearings including the following:
155. i) Proceedings for committal are a criminal charge for the purposes of Article 6 of the ECHR, such that the defendant is entitled "to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require."
156. ii) The obligation to afford a defendant representation is not unlimited, and a defendant's intransigence in unreasonably refusing it or in co-operating with legal representatives may make it impossible for legal assistance to be provided.
157. iii) Absent such unreasonable behaviour, if the defendant is unrepresented then an adjournment should, save in circumstances of extreme urgency, be granted so that representation may be obtained.
158. iv) A defendant to committal proceedings is not obliged to give evidence and benefits from the Article 6.1 right against self-incrimination.
159. At [13], Moses LJ expressed the view that "the judge was obliged to ask ? questions" as to the reason for the absence of legal representation and "to consider, at the very outset of the hearing, whether there should be an adjournment so as to enable the defendant to be represented."
161. At [14] to [18], Moses LJ also stated that the judge had erred in hearing both the application for contact and the committal proceedings at the same time, because it was for the applicant to establish his claim for contact, and adduce evidence accordingly, but there was no such obligation in the committal proceedings.
163. At [23], Moses LJ doubted "whether it will ever be necessary for a court to speculate as to whether representation would have made a difference in cases such as these", continuing:
165. "The more serious a case, the more a defendant is likely to need persuasive and skilful representation. It is almost impossible to envisage a case where such representation will not be needed, if only, as this case demonstrates, to remind a judge of the principles which apply. Even in a case where a defendant admits each and every breach alleged, representation will be needed so as to assist the judge in considering the appropriate disposal. In my view, it will rarely be open to anyone opposing an appeal based on article 6 to contend that article 6 rights would have made no difference."
166. Lord Justice Wall at [51] echoed Moses LJ's observation that "absent the type of impossible behaviour identified ?. a litigant in person who is liable to be sent to prison for contempt of court is entitled to legal representation, if necessary at public expense."
168. The Court of Appeal had to address issues of similar concern in Brown v London Borough of Haringey [2015] EWCA Civ 483, the case which the Judge referred to in the order drawn up on 25 June 2025. The appellant had been committed to prison for contempt for 18 months following a hearing at which he was not legally represented. The judge was told by the party seeking an order for committal that a request by the defendant to adjourn the hearing while a pending application for legal aid was determined had been refused by them. No enquiries were made by the judge of the defendant as to the legal aid position or whether he wished to have legal representation. A number of criticisms were made of the procedure adopted by the judge but the principal ground of appeal was that the proceedings were conducted without any legal representation for the defendant.
170. In that case, initial contact was made with the LAA who stated that this was a criminal matter for legal aid purposes. An application was then made to the magistrates court for criminal legal aid. The magistrates court returned the application on the basis that contempt was a civil rather than criminal matter. Further contact with the LAA had not produced a funding decision by the time of the hearing. The Court of Appeal concluded that the criminal legal aid legislation was applicable.
172. At [41], Lord Justice McCombe stated that it was necessary for the court at the committal application:
174. "to make full enquiry (a) as to whether the appellant wanted legal representation and (b) whether he had applied for the necessary funding to do so and with what results";
175. and that the judge's short enquiry about representation (which consisted simply of asking the defendant if he had any representation) did not go "nearly far enough in this respect". At [46], he emphasised the importance of "all involved in committal proceedings in the County Courts ? [being] aware of the route to be taken in applying for legal aid in such proceedings", continuing:
176. "It may be that ? consideration should be given to the promulgation of standard directions on the subject, either on the application notice itself and/or in any preliminary order regulating the procedure in an individual case."
177. The efforts of the courts in Hammerton and Brown notwithstanding, the problems with ensuring that defendants in civil committal proceedings were legally represented continued. In O (Committal: Legal Representation) [2019] EWCA Civ 1721, in which the defendant was committed to imprisonment following a hearing at which she did not have legal representation. Jackson LJ expressed the broad principle at [2]:
179. "The case is a reminder that respondents to committal proceedings are entitled to be provided with legal representation if they want it and that they will qualify for non-means-tested legal aid. There is an obligation on the court to ensure that this protection is made available. Where this does not happen any resulting order for committal may be procedurally irregular."
180. In that case, the first hearing of the committal application was adjourned to allow the defendant to obtain legal representation. She was still unrepresented at the second hearing, informing the court that she had been refused legal aid because of her means. The hearing was adjourned again, but when the matter came back before the court the position was essentially unchanged (the judge expressing doubt as to whether the LAA had in fact applied its own rules appropriately, because the judge interpreted the rules as allowing legal aid as of right and without means testing). The judge decided that it was not appropriate to adjourn the hearing for a third time on the basis that "the mother has had two months and she does not pretend that there is any defence to the allegations that she is in breach." He made findings of contempt. The proceedings continued, with the defendant having legal representation for subsequent hearings, albeit not always through counsel.
182. The ground of appeal was that the judge had committed a serious procedural error in failing to ensure that the appellant had legal representation from the outset of the committal proceedings. The respondent argued that, against a background of alleged ongoing recalcitrance and game-playing on the defendant's part, the judge's efforts to ensure she was effectively represented went far enough in the circumstances.
184. While expressing sympathy with the position the judge faced (and the judge's efforts to allow time for obtaining legal representation were considerable), Peter Jackson LJ held that the committal order could not be upheld ([31]), holding that at the third hearing, the judge should either have made a representation order himself (something a High Court judge can do) or adjourned the proceedings again. At [33] he stated:
186. "There may be circumstances where the court will decide to proceed with hearing a committal application without the alleged contemnor having legal representation, for example because it is just to do so where an adjournment is likely to prejudice the litigant himself. There may be other similar circumstances. But this was not such a case."
187. An instance of what Wall LJ referred to in Hammerton, [51] "the type of impossible behaviour" by the defendant which might make it appropriate to proceed with committal proceedings even if they were not legally represented was Corrigan v Chelsea Football Club Ltd [2019] EWCA Civ 1964. The defendant had been repeatedly advised to seek legal advice, but failed to engage in the proceedings in any way, and a suspended sentence was imposed at the committal hearing in his absence. The sentence was subsequently activated at a further hearing which, once again, the defendant chose not to attend. An appeal against the imposition and activation of the sentence, inter alia because the defendant had not been legally represented at the relevant hearings, failed.
189. At [45]-[47], Davies LJ referred to Brown and O, noting Peter Jackson LJ's statement in the latter case that "respondents to committal proceedings are entitled to be provided with legal representation if they want it", continuing:
191. "In O, legal representation clearly had been requested and wanted. But that is not the case here. The defendant (who it is accepted can in fact read and write) simply, as the judge found with ample evidential support, had effectively refused to engage at all. He ignored the Order of 15 April 2019 of Stewart J; he ignored the repeated urgings of Kerman in correspondence to seek urgent legal advice; he failed to attend hearings although duly notified of them; and so on. There were no indications of his wanting - truly wanting - legal representation or of any preparedness to take serious steps to obtain it."
192. McCombe LJ referred to the decision in Brown, in which he was one of the constitution, stating at [57]:
194. "I repeat what I said there as to the need for respondents to committal applications (if at all possible) to have proper legal advice and legal aid to procure such advice. However, the facts in Brown's case were very different. That was not a case where the respondent had steadfastly refused to engage with the legal proceedings in the manner manifested by the defendant in these proceedings. Nor had he ignored repeated exhortations to seek legal advice as this defendant did in the present case. As Davis LJ says in paragraph 47 above, the essence of the matter is that respondents to committal proceedings are entitled to legal representation 'if they want it' (per Peter Jackson LJ in the O case (supra) quoted above). This defendant showed no signs of wanting such representation at any stage."
195. All of these decisions refer to the right of a defendant to civil committal proceedings to have legal representation if they want it, and to the availability of public funding for such representation without the need to satisfy a means-test. Identifying the precise route by which such funding is to be accessed has proved a challenging task. In King's Lynn and West Norfolk Council v Burning [2015] EWHC 3390 (QB), Baker J engaged in what McCombe LJ in Brown described as a "lengthy consideration of tortuous statutory and regulatory provisions" for the purposes of committal proceedings for breach of a High Court order, and concluded that in such cases, the High Court itself was the relevant authority to determine entitlement to legal aid.
197. Chamberlain J returned to that question, once again in the context of committal proceedings in the High Court, in All England Lawn Tennis Club v McKay [2019] EWHC 3065 (QB). In that case, the judge adjourned the proceedings to allow the LAA to make submissions as to the correct position. After conducting his own review of statutory and regulatory provisions, at [12]-[13], [15] and [26] Chamberlain J concluded that:
199. i) a defendant facing committal proceedings for breach of a High Court order is entitled to criminal legal aid as of right without the need for any assessment of means or merits;
200. ii) such a defendant does not have to satisfy an "interests of justice" requirement; and
201. iii) the "relevant authority" for the purpose of granting legal aid in respect of High Court committal proceedings is the Director of Legal Aid Casework and not, as Baker J had held, the High Court itself.
202. It is helpful to trace through the provisions to which Chamberlain J referred? and to consider their application by reference to committal proceedings in the County Court, in the hope that these observations may be of assistance to others should a similar issue arise in the future:
204. i) Legal aid for civil committal proceedings is treated as criminal legal aid for the purposes of s.14(h) of the Legal Aid Sentencing and Punishment of Offenders Act 2012 ("LASPO") (Regulation 9 (v) of the Criminal Legal Aid (General) Regulations 2013 (SI 2013/9). As McCombe LJ noted in Brown, [29], this applies to committal proceedings in the County Court as well as the High Court.
205. ii) Section 16 of LASPO provides for representation to be available for the purpose of criminal proceedings if "the relevant authority has determined ?. that the individual qualifies for such representation". The relevant authority means "the person who is authorised under section 18, 19 or 20 to determine (provisionally or otherwise) whether the individual qualifies under this Part for representation)".
206. iii) While s.17(1) of LASPO provides for the relevant authority to determine eligibility by reference to the means test and the interests of justice test, in criminal proceedings other than those in the magistrate's court or the Crown Court, the relevant authority must determine that the individual's financial means are such that they are eligible for representation (Regulation 39 of the Criminal Legal Aid (Financial Resources) Regulations 2013 (SI2013/471)). As this provision operates by reference to "any criminal proceedings other than (a) magistrates court proceedings and (b) Crown Court proceedings," the effect of that provision is that there is no means test for legal aid funding for representation for committal proceedings in the County Court as well as the High Court.
207. iv) So far as the "interests of justice" test is concerned, Regulation 31 of the Criminal Legal Aid (General) Regulations 2013/9 provides
208. > "For the purposes of a determination under?section 16 of [LASPO], making representation available to an individual for the purposes of criminal proceedings is taken to be in the interests of justice when the proceedings are before?
209. > (a) the Crown Court, to the extent that such proceedings do not relate to an appeal to the Crown Court;
210. > (b) the High Court;
211. > (c) the Court of Appeal; or
212. > (d) the Supreme Court."
213. v) It will be apparent that Regulation 31 does not address committal proceedings in the County Court. We were not referred to any legislative provision addressing this issue. I would note that the very reasons which make legal representation in the interests of justice in the High Court will generally make legal representation in the interests of justice in committal proceedings in the County Court.
214. vi) Regulation 7 of the Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013/614, which were made under the regulation-making power conferred by s.19 of LASPO, limits the power of the High Court to make a determination under s.16 of LASPO to certain cases which do not include civil committal proceedings before the High Court. As a result, determinations regarding legal aid in civil committal cases are to be made by the Director of Legal Aid Casework. This follows from s.18 of LASPO which provides that the Director is determine "whether an individual qualifies under this Part for representation for the purposes of criminal proceedings, except in circumstances in which a court is authorised to make a determination under regulations under section 19".
215. vii) This led Chamberlain J to reach a different conclusion to Baker J in relation to the determining authority in High Court committal proceedings. His logic applies equally to County Court committal proceedings, there being no regulations made under s.19 conferring a determination authority in such cases on the County Court. That accords with the conclusion reached by McCombe LJ in Brown, [35]. He noted at [36] that:
216. > "Unfortunately, although nothing could be simpler, there is no clear legislative provision providing in straightforward terms that applications for publicly funded representation for committal proceedings in the County Court are to be made to the Director."
217. That appears to remain the position.
218. Finally, an application for legal aid is made through a solicitor, who will help the client complete the application and then submit the application on paper or electronically to the LAA. The LAA publishes a document entitled "How to apply for legal aid in civil contempt ? committal proceedings Guidance for providers" ("the Guidance"), the current version of which is dated October 2025. The Guidance explains to solicitors the process by which they should apply for a representation order, with different routes for solicitors who are, and are not, registered crime providers.
220. For applications made through solicitors who are registered crime providers, the Guidance refers to various fields which appears on the LAA portal for applications.
222. The first is the "Means Information" field where the guidance states:
224. "Civil contempt proceedings heard in civil venues are not means tested. You should therefore answer No to this question. This will ensure that the Apply for criminal legal aid service does not present any questions about your client's financial circumstances. It will also direct the application to a dedicated non-means work queue administered by designated caseworkers."
225. The second is the "Interests of justice test", field where the Guidance states:
227. "Use this section to explain why the case meets the IOJ test."
228. This field on the portal appears to involve ticking one or more of nine reasons for seeking legal aid. It would appear from the paper copy of form CRM 14 (which is completed by solicitors who are not registered crime providers) that one of the nine factors is:
230. "It is likely that I will lose my liberty if any matter in the proceedings is decided against me."
231. Should the Judge have granted Mrs Davies' applications to adjourn the hearing of 19 June 2025 to allow her to obtain legal aid?
232. With that lengthy background, I turn to the key issue in the case: should the Judge have granted Mrs Davies' applications to adjourn the hearings of 19 June to allow her to obtain legal aid?
234. In my view, the short answer to that question is clearly "yes":
236. i) Mrs Davies was entitled as a defendant to a committal application to legal representation if she wanted it, and the court was under an obligation to ensure that she had an accurate understanding of this right, and an appropriate opportunity to avail herself of it.
237. ii) Mrs Davies made it clear at the 19 June hearing that she did want legal representation, but had been unable to obtain it due to funding and timing issues (3B, 4B and 4E). She referred to efforts to obtain pro bono representation (5C-D). Indeed the Judge appears to have accepted that Mrs Davies genuinely wanted legal representation, referring to the possibility that if a finding of breach was made, it might be possible for legal representation to be available at the sanctions hearing (6A).
238. iii) In these circumstances, save in cases of extreme urgency, an adjournment was required. No such urgency was suggested, still less made out.
239. iv) Indeed a noticeable feature of the hearing is that the Judge informed Mrs Davies of her right to legal representation on four occasions during the hearing (2G-H, 3B, 4D and 5B), again in his judgment and he referred to the fact that this information had been given in the written order issued on 25 June 2025. The Judge was right to attach importance to informing Mrs Davies of that right, but, with respect, that warning was pointless when given at the hearing of 19 June itself unless Mrs Davies was going to be offered an opportunity to act on it. By refusing the adjournment, Mrs Davies was denied the opportunity of doing so, at least so far as the breach findings were concerned.
240. v) The Judge's decision to refuse to grant an adjournment appears to have resulted from uncertainty on his part as to whether legal aid was available on a non-means tested basis for Mrs Davies (2G and 4C) and his view that the solicitors who had told Mrs Davies that she was not eligible for legal aid would know the actual position (4F). The Judge did not receive submissions as to the position from the Lettingtons' counsel, although it is apparent from events at the 28 July hearing that counsel may not have understood the issue of the availability of legal aid either (see 49F-H).
241. vi) For the reasons set out above, and as confirmed by the authorities referred to, there is no means test requirement for legal aid for someone like Mrs Davies facing civil committal proceedings. I am sure that if the Judge had understood the correct position, he would have granted the adjournment sought on 19 June, and that his decision to refuse to grant the adjournment was vitiated by that error.
242. vii) The unfortunate facts of this case reinforce the point made by McCombe LJ in Brown at [46] of the importance of "all involved in committal proceedings in the County Courts ? [being] aware of the route to be taken in applying for legal aid in such proceedings".
243. Mr Lopez submitted that the Judge's explanation of the legal aid position was not inaccurate, being in accordance with the terms of CPR Part 81.4(2)(i) and (j). It is not clear whether Part 81.4(2)(j) uses the word "may" to reflect the potential application of the interests of justice test (see [66(iv)] and [70]-[71] above). However, the position so far as means testing is concerned is clear: no means test applies. The Judge was required to inform Mrs Davies that this was the case but failed to do so because he was not himself aware of the position. Nor, for the same reason, did he inform her that if a local solicitor had told her that she was not eligible for legal aid, that was wrong.
245. Mr Lopez also submitted that, in the exercise of his discretion, the Judge was entitled to conclude that he should not adjourn the hearing because (i) it would have been apparent to him from the August 2024 trial that Mrs Davies was capable of acting in her own interests; (ii) Mrs Davies had failed to provide a sufficient explanation of the steps taken to obtain legal aid, e.g. by identifying the solicitors she referred to and adducing documents to prove her attempts to obtain legal representation; and (iii) the Judge was entitled to conclude that an adjournment, and the delay it would entail, risked prejudicing the Lettingtons in circumstances in which Mrs Davies wished to advance a prescription claim to the land in issue.
247. Having concluded that the Judge's exercise of his discretion to refuse to grant an adjournment was vitiated by his legal error in not knowing that there was no means test for legal aid in this context, his exercise of his discretion cannot stand. In any event, however, none of the matters which Mr Lopez sought to advance as justifying the decision to refuse an adjournment were mentioned by the Judge at the time, or explored in argument so that Mrs Davies had a chance to respond to them.
249. Nor am I persuaded that, either individually or collectively, they are capable of justifying the decision to refuse to adjourn on an ex post facto basis now. Taking them in turn:
251. i) The defendant's right to legal representation at a committal hearing if they want it is not conditional upon the judge's evaluation of their litigation competency. A legal representative is able to provide independent and dispassionate advice with the benefit of their legal training and experience. Nor am I persuaded that the Judge could properly have concluded that Mrs Davies' conduct of the trial provided grounds for concluding that legal advice could fairly be dispensed with at an application where her liberty was at stake: see [5] and [11] above.
252. ii) If the Judge had believed that more detail was necessary in relation to Mrs Davies' attempts to secure legal representation, he should have sought that detail from her. A judge's duty to make appropriate enquiries in these circumstances is clearly stated in Hammerton and Brown. As it was, Mrs Davies had paid for legal representation for the March hearing, and explained to the Judge that she could no longer afford to do so. She referred to contact with local solicitors who, on her account, would appear to have misadvised her that she was ineligible for legal aid. The solicitor plays a crucial role in facilitating a client's legal aid application, both in informing them whether they qualify and in assisting them in making the application. Finally, Mrs Davies referred to four university law clinics she had approached who were unable to help. On that material, had the Judge directed his mind to this issue, it would not have been open to the Judge conclude that an adjournment should be refused because Mrs Davies had failed to show that sufficient efforts had been made to obtain legal representation.
253. iii) I accept that the issue of delay, and its effect on the Lettingtons, will understandably have troubled the Judge, and he referred to the fact that there had already been one adjournment on two occasions (5B and 5G). However, what would only have been a relatively short period of delay can carry little weight against the effective protection of Mrs Davies' Article 6 right. Nor was any explanation offered as to how the findings of breach (which is all the Judge planned to do and did on 19 June) would affect the prescription position. The Judge's decision to adjourn the sanctions aspect of the hearing, to allow Mrs Davies a further opportunity to obtain legal representation, itself necessarily recognised that delay was not a sufficient factor to override Mrs Davies' right to obtain legal representation. The Judge's error was in failing to recognise that that applied as much to the hearing at which findings of breach would be made as to any sanctions hearing.
254. Finally, in his written submissions, Mr Lopez first pointed to the fact that the 19 June hearing involved findings of breach, rather than committal for breach, and suggested that the principles set out in the authorities did not apply with the same force in the former context. That argument is without merit. The findings of breach formed an essential part of proceedings which amount to a criminal charge for Article 6 purposes, being the equivalent of the process in a conventional criminal trial which establishes whether the defendant is guilty of the offence. Further, the breaches found significantly influence the decision as to whether to impose a sanction, and the nature of any such sanction. In this respect, it is noteworthy that the right to legal aid for committal proceedings conferred by s.14 of LASPO does not distinguish between these two stages of the process, and that the automatic right of appeal provided by CPR r.81.4(2) for a defendant who has been committed extends to both parts of the process (Business Mortgage Finance 4 plc v Hussain [2022] EWCA Civ 1264, [6]).
256. Mr Lopez also argued in his skeleton that, given the lengthy history of the proceedings and what is said to be Mrs Davies' established non-compliance with the Injunction, the Court should dismiss the appeal in any event, on the basis that the findings of breach were sufficiently established at the 19 June hearing.
258. This submission, in effect, invites the Court to conclude that it would have made no difference to the outcome of the 19 June hearing if Mrs Davies had had legal representation as opposed to representing herself. However, as Moses LJ observed in Hammerton, [23], it will rarely (if ever) be appropriate for a court to speculate as to whether representation would have made a difference in a committal case. This is not such a case.
260. Accordingly I would allow the appeal against the orders made following the hearings of 19 June, with the result that the order made following the 28 July 2025 hearing will also be set aside. It follows that the findings of breach made by the Judge following the hearing of 19 June are set aside. The application for committal is remitted to the County Court, to be heard by a different judge.
262. The supplemental complaints
263. In these circumstances it is not necessary to address the supplemental criticisms raised by Mr Bowers KC or whether they fall within the scope of permission to appeal. I would simply note that the points made reflect some of the procedural complexities of committal proceedings, which are invariably best managed with the benefit of legal representation for both parties.
265. Phillips LJ
266. I agree.

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