Appellant who built 'Britain's biggest man cave' in breach of planning control loses Court of Appeal challenge to contempt of court findings and sentence

The Court of Appeal has rejected an appeal by the owner of a building dubbed ‘Britain’s biggest man cave’ over a ruling that he was in contempt of court of an injunction issued in 2018.

After a two-day hearing in June this year, His Honour Judge Jarman QC, sitting as a judge of the High Court, had decided that Graham Wildin was in contempt of court over the large sports building built in breach of planning control.

The building houses a cinema and a bowling alley.

The judge concluded that Mr Wildin had disobeyed paragraphs 3 and 4 of the order for an injunction (order 1) made in 2018. The appellant had been represented at the June hearing but did not give evidence.

HHJ Jarman QC passed a sentence of six weeks' imprisonment suspended for 12 months, on condition that Mr Wildin did certain works within 18 weeks. The judge imposed no penalty in respect of a further contempt which he found proved.

Mr Wildin appealed against both the findings of contempt and the sentence.

In Wildin v Forest of Dean District Council [2021] EWCA Civ 1610 the appellant advanced four grounds of appeal challenging the findings of contempt.

These included that the judge should not have found that he was in contempt of court because the council had not alleged and proved that he was able to comply with order 1. The council's pleaded 'Particulars of Contempt of Court' did not make any such allegation, whether about order 1 as a whole, or about any part of it, and the council's evidence did not show that the appellant could comply with it. The judge should therefore have dismissed the application for committal, it was said.

It was also argued that there was no evidence about what it would have cost to comply with paragraphs 3 and 4 of the order, or that it was possible so to comply without demolishing the whole of the building. The judge should have held that the council had failed to prove its case and should have refused the council's application, it was submitted.

The appellant also argued that the judge was wrong to hold that paragraphs 3 and 4 of order 1 were precise enough, and that they were independent of the rest of order 1.

The grounds of appeal against sentence were:

• The judge's reasons about sentence were not consistent with the reasoning in judgment 1 in October 2018. He should have given the appellant 46 weeks, not 18 weeks, to do the work specified in the schedule to the 2021 order.
• The judge was wrong to extend the period of suspension of the committal order beyond the period for doing the work which was specified in the schedule to order 2 (in July 2021).

Lady Justice Elisabeth Laing found amongst other things that Forest of Dean had no way of proving, to the criminal, or to any other standard, whether the appellant had the means to demolish the building, since all the relevant facts were in Mr Wildin's exclusive knowledge.

She said: “That makes it intrinsically unlikely that, in a case like this, if a respondent claims he cannot afford to comply with an order of the court, the law could require the applicant to prove, to the criminal standard, that the respondent can afford to comply…. The position is that if an applicant proves that a respondent has not complied with an order of the court, and the respondent wishes to contend that he cannot comply with an order because he cannot afford to (and that is a possible defence to a committal), there is an evidential burden on him.

“He must adduce some evidence to support his case. It is then for the applicant to make the court sure that, despite that evidence, the respondent can comply with the order. The evidence at the 2018 hearing was thin, because [the appellant] made inadequate disclosure. It was nevertheless clear that [Mr Wildin] owned significant tangible assets, and [he] had made wholly inadequate disclosure about their extent and value.”

Lady Justice Elizabeth Laing said that in that situation, the judge was entitled to draw a secure inference that, on the balance of probabilities, Mr Wildin could pay for all the work. “That, indeed, was the inference which the Judge drew in judgment 1. If, as I think it was, [the appellant]'s affidavit was admissible at the committal hearing (see further, below), it does not, in my view, begin to discharge that evidential burden, because [Mr Wildin] has not, at any stage, before, or in, the affidavit, made full disclosure of, and about, all his assets, when it is common ground that they are significant.”

She went on to find that “to the extent that there was no precision in the Judge's findings, [the appellant] is (again) entirely the author of his own misfortune. While [Mr Wildin] was not required to give the court full information, he could have done, and chose not to. [The appellant] cannot now complain that the Judge made the best he could of the limited material [the appellant] chose to disclose.”

Elizabeth Laing LJ also dismissed the appeals against sentence.

Agreeing, Lord Justice Edis said: “At the time of the committal application, as Elisabeth Laing LJ has explained, there was a new affidavit about the appellant's means which was admitted in evidence. The appellant declined to give oral evidence and he was not cross-examined. The many gaps in his affidavit were not therefore filled. Moreover, the transactions which had occurred after the injunction was granted were never properly explained. Some of these transactions were highly questionable. The documentary disclosure of material concerning the appellant's financial situation was wholly inadequate.”

Edis LJ said it was for the applicant to prove all elements of the alleged contempt and to the criminal standard. “However, in an issue where all relevant facts are known to the alleged contemnor, and not to the applicant, the judge in deciding whether the applicant has achieved that proof will have regard to all the evidence, in particular that adduced by the alleged contemnor. Where that evidence is to the effect ‘I cannot comply with the order because I cannot afford to do so’, the court will expect full disclosure and, probably, sworn evidence to that effect before giving the claim any weight.”

He added that there was, in his judgment, a "reasonable basis" for the hypothesis that the appellant was a very wealthy man. “There was a finding to that effect in judgment 1. Moreover, he spent a great deal of money building a large sports hall in his back garden. He knew when he did that that he was gambling because he did not have planning permission, and was therefore risking the loss of the structure on which that money had been spent.

“It seems unlikely that any rational person would take such a risk unless the potential loss was easily affordable. He owns, or has until very recently, owned a significant number of properties, and has worked for a long time building up what appears to be a successful accountancy business.”

Lord Justice Edis said that in the circumstances the appellant had been extremely fortunate, that HHJ Jarman QC found that he was not able to afford the full costs of all the work required by the injunction.

“Many judges would simply have rejected the affidavit evidence altogether. The Judge does not reason fully his decision to accept it in part, and the Local Authority has not sought to appeal against that decision. It therefore stands. The appellant's criticisms of the finding against him that he could afford to comply with paragraph 4 of the injunction should, nevertheless, be understood in this context. The outcome on the issue of his wealth was very favourable to the appellant, probably wrongly so.”

Mr Wildin has been given until 10 March 2022 to comply with the order to complete the required work, if he is to avoid prison.

Forest of Dean Council said it had been awarded substantial costs as part of the hearing.

Cllr Tim Gwilliam, Leader of the Council and Cabinet Member for Planning said: “This result is the latest in a completely avoidable and long running case. If Mr Wildin had followed the guidance of experts and complied with the sentencing originally handed down, this further court date would not have been necessary.

“As a council it is important to ensure that development proposals improve the environments in which they live, whilst safeguarding the community. Every year, hundreds of people ask the council for planning advice and follow it. This has not been the case in Mr Wildin’s instance."