Davies v Lettington [2026] EWCA Civ 364: Court of Appeal Sets Aside Committal Findings After Refusal of Adjournment for Legal Aid

Introduction

In Davies v Lettington [2026] EWCA Civ 364, the Court of Appeal held that a County Court judge should have adjourned a civil committal hearing so that the defendant, Mrs Ruth Davies, could obtain publicly funded legal representation. Foxton LJ, with Phillips LJ agreeing, concluded that the refusal of an adjournment was vitiated by a mistaken understanding of the legal aid position and by a failure to give practical effect to Mrs Davies’ Article 6 right to representation.

The appeal arose from a rural land dispute, but the decision has wider significance. It restates that civil committal proceedings amount to a criminal charge for Article 6 purposes, that a defendant who wants representation must be given a real opportunity to obtain it, and that those protections cannot be diluted simply because the court proposes to determine breach first and sanction later. The findings of deliberate breach were therefore set aside, together with the later order made after the sanctions hearing, and the committal application was remitted to be heard by a different judge.

Factual background

The dispute concerned land which had once formed part of Coedmor farm, near Llangoedmor in Cardiganshire. In 1989 Gardners Cottage, which had previously formed part of the farm, was transferred into separate ownership and later came to be owned by Paul and Amanda Lettington. Mrs Davies remained the freehold owner of the farm. A dispute then arose about the boundary between the properties, the Lettingtons’ right to fence those boundaries, and the existence and scope of rights over a track serving the cottage. The Lettingtons alleged that Mrs Davies had interfered with the right of way, obstructed the track and impeded maintenance works and access to the cottage.

The Lettingtons issued proceedings against Mrs Davies and her son. Mrs Davies had legal representation until 1 July 2024, after which she acted in person. At a four-day trial in August 2024, HHJ James found for the Lettingtons. Because the Davies had failed to serve evidence in accordance with earlier directions, they were not permitted to call witness evidence at trial, although they were allowed to challenge the Lettingtons’ case. On 17 October 2024 the judge granted an injunction requiring Mrs Davies to remove specified fencing, fence posts and other materials, reinstate a former road gate and carry out certain works. The order contained a penal notice.

Attempts to stay the injunction and to obtain permission to appeal were unsuccessful. The Lettingtons then issued a committal application on 17 February 2025 alleging non-compliance with the injunction. The application was made on Form N600, which informed Mrs Davies that she had the right to legal representation and was entitled to a reasonable opportunity to obtain it and to apply for legal aid, which might be available without any means test.

The application first came before HHJ Harrison in March 2025. Mrs Davies was then represented by direct access counsel, and the hearing was adjourned to give her further time to comply with the injunction or file evidence of compliance. By the resumed hearing on 19 June 2025, however, she appeared in person.

At that hearing, the judge told Mrs Davies that she was entitled to legal representation and that public funding could in some circumstances be available, but he also said that he did not know whether legal aid was available in her case and that it was not his role to advise her on the point. Mrs Davies said that she could not afford to pay privately, that she had been told there was no legal aid for civil cases, and that the timescale had caused problems in securing representation. She asked for an adjournment. She also explained that she had approached four university law clinics for pro bono assistance, but the waiting time was about six months. The judge refused the adjournment and proceeded.

The judge found that breaches of several operative paragraphs of the injunction had been proved to the criminal standard and that the breaches were deliberate. He adjourned the question of sanction to a later hearing, encouraged Mrs Davies to comply in the meantime, and advised her to seek legal representation for the later hearing. When she asked what would happen if she could not obtain representation, the answer was that she would have to represent herself.

The drawn order issued after the June hearing included a recital advising Mrs Davies to make enquiries under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and Brown v London Borough of Haringey [2015] EWCA Civ 483, although neither had been mentioned during the hearing itself.

Mrs Davies renewed her request for more time before the later hearing listed for 28 July 2025. She referred to continuing difficulty in securing lawyers, including one firm asking for £10,000 on account, and to delay affecting a legal aid application. She also applied to Advocate for pro bono assistance, but was told that the time before the hearing was too short. At the July hearing, the judge again dealt with the question of representation and adjourned the sanctions issue, directing Mrs Davies to provide written confirmation of attendance on a solicitor willing to represent her and that an application for legal aid had been submitted. By late August and September 2025 she had obtained representation from Karen Todner Ltd, and legal aid was granted on 28 August 2025. Permission to appeal was later granted.

The issues before the court

The central issue was whether HHJ James should have adjourned the hearing on 19 June 2025 so that Mrs Davies could obtain legal aid and legal representation. That issue had two linked aspects. First, had the judge accurately understood and explained the legal aid position in civil committal proceedings? Secondly, and more importantly, was he entitled to refuse an adjournment in circumstances where Mrs Davies plainly wanted representation but had been unable to secure it?

By the hearing of the appeal, the second question was the operative ground. If the hearing should have been adjourned, the findings of breach could not stand. Both sides also accepted that, if the June order fell, the order made after the later hearing in July would fall with it.

Mrs Davies also raised further complaints about the way in which the June hearing had been conducted, including what she was told about adverse inference, the treatment of admissions, and whether she had in fact been deprived of the opportunity to give evidence. Those points were not the decisive issue on the appeal, but they formed part of the wider picture of procedural difficulty in a committal hearing conducted without representation.

The court’s reasoning

Foxton LJ reviewed the established authorities on legal representation in civil committal proceedings, including Hammerton v Hammerton [2007] EWCA Civ 248, Brown v London Borough of Haringey [2015] EWCA Civ 483, O (Committal: Legal Representation) [2019] EWCA Civ 1721 and Corrigan v Chelsea Football Club Ltd [2019] EWCA Civ 1964. Those authorities establish a consistent principle. Civil committal proceedings engage Article 6 as a criminal charge. A defendant is entitled to legal representation if he or she wants it. Absent extreme urgency, or conduct by the defendant which makes representation impossible through a refusal to engage, the court should adjourn if representation has not yet been secured.

The authorities also impose a positive obligation on the court to make proper enquiry. It is not enough merely to note that a defendant is unrepresented. The court must ascertain whether representation is wanted, what steps have been taken to obtain it, and what has happened in relation to legal aid. The right is meant to be practical and effective, not merely formal.

Foxton LJ then undertook a detailed analysis of the statutory scheme under LASPO and the relevant regulations. The critical conclusion for present purposes was clear. Legal aid for civil committal proceedings is treated as criminal legal aid, and there is no means test for representation in committal proceedings in the County Court. Applications are made through a solicitor to the Legal Aid Agency. Foxton LJ did identify a technical question as to the precise legislative basis on which the interests of justice requirement operates in County Court committal cases, but nothing in that discussion undermined the central point that Mrs Davies should not have been left under the impression that lack of means barred legal aid.

Applying those principles, the answer was straightforward. Mrs Davies made it clear that she wanted legal representation. She said that she could not afford to pay privately. She said that she had been told there was no legal aid. She referred to efforts to obtain pro bono assistance. The judge himself appears to have accepted that she genuinely wanted a lawyer, because he envisaged that legal representation might be obtained for any later hearing on sanction.

In those circumstances, and in the absence of any suggestion of extreme urgency, an adjournment was required. A striking feature of the case was that the judge repeatedly told Mrs Davies that she had a right to legal representation. Foxton LJ observed that the warning was “pointless” if it was given at the hearing itself without affording her any opportunity to act on it. The difficulty was not a failure to state the right. The difficulty was the refusal to make it effective.

The Court of Appeal also concluded that the refusal to adjourn appears to have been influenced by the judge’s uncertainty as to whether legal aid was available on a non-means-tested basis, and by his view that the solicitors who had told Mrs Davies otherwise would know the true position. That was a material legal error. Foxton LJ said that, had the judge understood the correct position, he was sure that the adjournment would have been granted.

The Lettingtons argued that the refusal could nevertheless be upheld because the judge knew the history of the litigation, Mrs Davies was capable of acting in her own interests, her explanation of the steps taken to obtain representation was insufficiently detailed, and delay would prejudice the Lettingtons. The Court of Appeal rejected those points. The right to representation at a committal hearing does not depend on a judicial assessment of the defendant’s competence as a litigant. If more detail was required about attempts to obtain representation, the judge should have asked for it. And although further delay was understandably unwelcome, a relatively short adjournment could not outweigh the proper protection of Article 6 rights.

Foxton LJ also rejected the suggestion that the June hearing was only about findings of breach and therefore did not engage the same protections as a hearing at which sanction might be imposed. That submission was described as without merit. Findings of breach are an essential part of the committal process. They are the equivalent of the stage in criminal proceedings at which guilt is determined, and they directly influence whether any sanction is imposed and what sanction may follow. Business Mortgage Finance 4 plc v Hussain [2022] EWCA Civ 1264 supported that approach.

Finally, the Court of Appeal declined to speculate that the outcome would necessarily have been the same if Mrs Davies had been represented. Drawing on Hammerton, Foxton LJ emphasised that such speculation will rarely, if ever, be appropriate in a committal case.

The decision

The appeal was allowed. The orders made following the hearings of 19 June and 28 July 2025 were set aside. The findings that Mrs Davies had deliberately breached the injunction were also set aside. The committal application was remitted to the County Court for rehearing before a different judge.

It was unnecessary to determine the supplemental complaints about adverse inference, admissions or the handling of oral evidence. Foxton LJ nevertheless observed that those points reflected the procedural complexity of committal proceedings and the importance of legal representation for both sides.

Why the decision matters

This is an important decision for judges, practitioners and litigants involved in committal proceedings. First, it makes clear that the right to representation is not satisfied by a formal warning if the hearing then proceeds before the defendant has any realistic opportunity to obtain a lawyer. A recital in a later order, or a general statement that legal aid may exist, will not cure the refusal of a necessary adjournment.

Secondly, the judgment is important for its analysis of legal aid. Foxton LJ’s review of LASPO and the regulations should dispel any lingering assumption that County Court civil committal proceedings are subject to a means test. Brown had already warned of the need for everyone involved in County Court committal cases to understand the proper route to legal aid. Davies v Lettington shows that the point still matters in practice.

Thirdly, the decision is significant for claimants seeking to enforce injunctions. Procedural fairness is not an optional extra. Findings of breach obtained without giving the defendant a proper opportunity to secure legal representation are vulnerable on appeal, with the result that the whole committal process may have to start again. In practical terms, a short justified adjournment may be far preferable to the cost and delay of having the proceedings unravel later.

Finally, the judgment rejects any neat division between a hearing on breach and a hearing on sanction. For Article 6 purposes, they are parts of a single committal process. The need for representation therefore arises at the stage when breach is being determined, not merely when the court turns to penalty.

Further Reading

• Civil Courts in England and Wales
• Overview of a Typical Litigation Claim (England and Wales, 2025)
• Freezing Injunctions in England and Wales: A Practical Guide
• Stay of Proceedings on Medical Grounds: Friend MTS v Friend Partnership [2025] EWHC 2471 (Ch)

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