Cassell v Commissioner of Police et Al

• Jurisdiction: Montserrat
• Court: High Court (Montserrat)
• Judge: Matthew, J.
• Judgment Date: 30 November 2001
• Neutral Citation: MS 2001 HC 7
• Docket Number: Civil Suit No. 29 of 2001
• Date: 30 November 2001

Cassell

and

Commissioner of Police et al

Matthew, J. (Ag.)

Civil Suit No. 29 of 2001

High Court

Contempt of court - Applicant filed a motion for committal of the defendants for disobeying an order of court — Court had ordered that moneys in accounts or otherwise taken from or relating to the applicant and in respect of which there was no application for forfeiture be released — Finding that defendants had treated order of court with scant regard — Order that defendants obey order of court or pay a fine — Additionally defendants to institute proceedings for forfeiture or otherwise to determine the nature of the property held, and upon their default the property to be released to the claimant forthwith.

Appearances:

Mr. D. Brandt and Mr. W. Cassell for the claimant.

The Attorney General, Mr. B. Cottle for the defendants.

1 Matthew, J. (AG.): On July 31, 2001, the applicant filed a motion for the committal of the defendants for disobeying an Order of Saunders, J. dated February 22, 1999.

2 The motion was supported by an affidavit made by Warren Cassell, an attorney at law, to which he exhibited the said order of the learned judge.

3 On the said February 22, 1999 the learned judge ordered that:–

• (1) The sums and moneys in accounts or otherwise over which this Court has jurisdiction and which were taken from or relate to Clement Cassell and in respect of which there is no application for forfeiture be released to Clement Cassell.

• (2) All documents and things taken from Clement Cassell in respect of which no evidence was led at the trial and in relation to which an application for forfeiture is made, be released to him.

4 In his affidavit, Warren Cassell stated that the first defendant on or about February 19, 2001 was served with a certificate of the Registrar of the High Court, confirming that the said Orders were made.

5 Warren Cassell also stated that the first defendant in a letter dated February 19, 2001 acknowledged receipt of the certificate and stated that the matter was being processed and he would report to Cassell shortly. A copy of the Commissioner's letter to this effect was also exhibited to Cassell's affidavit.

6 Cassell stated that notwithstanding, and in breach of the Order, and despite several requests, the first defendant had continued to keep the sums of money and things taken from and belonging to the claimant in his possession.

7 The Attorney General is the legal officer in Montserrat responsible for criminal prosecutions. The Attorney General entered appearance on behalf of the defendants on August 31, 2000 but did not file any other documents.

8 The matter came up for hearing on November 13, 2001.

SUBMISSIONS OF MR. BRANDT IN SUPPORT OF MOTION.

9 Learned counsel for the claimant submitted that several requests had been made for the release of the property of the claimant but they have been ignored.

10 Counsel submitted that there has been no counter affidavit sworn explaining why the Order has not been carried out, and the Attorney General, Minister of Justice, who is supposed to see about the administration of justice is ignoring the Order of the Court.

11 Counsel referred to Rule 1.1 of the Civil Procedure Rules 2000, which states that the overriding objective of the Rules is to do justice. He referred to Blackstone's Civil Practice 2000 page 7 and the case of Cala Homes (South) Ltd v. Chihester Distruct Council (1999) 79 PC CR 430 in this regard.

12 Counsel criticized the old rule that these proceedings may not apply to the Crown. He referred to the case of Biguzzi v. Rank Leisure PLC [1999] 1 W.L.R. 1926 C/A and to Borrie and Nigel on the law of contempt.

SUBMISSIONS OF MR. COTTLE AGAINST THE MOTION

13 The Learned Attorney General agreed that no one can complain with the overriding objective of the Rules to enable the court to deal with cases justly but he questioned whether Rules 53.3 and 59.7 could be ignored in dealing with cases justly.

14 Counsel asked where is the evidence that the Commissioner knew of...