CPR 72.2 – Order for appellant judgment debtor to attend court for questioning over financial means – Persistent failure of appellant to attend on specified date – Suspended committal orders made against appellant under CPR 72.8 – Whether judge erring in approach to those orders – Whether sufficiently considering circumstances of appellant’s default – Appeal allowed
The appellant was the tenant of the respondent housing association. In April 2004, a costs order in the sum of £166 was made against him as a condition of the withdrawal of possession proceedings by the respondent. The appellant did not satisfy the order. In August 2005, on the application of the respondent, the court made an order, under CPR 72.2, requiring the appellant to attend court to answer questions concerning his finances and to provide the information necessary to enforce the costs order.
After various adjournments, a date was fixed for the appellant’s attendance. However, the respondent experienced difficulties with service and the appellant did not attend on the due date. The matter was relisted on several occasions, but each time the appellant failed to appear. In December 2006, the judge made an order committing the appellant to prison for seven days, suspended on terms that he attend court on a date in March 2007; this was later adjourned to April 2007. The appellant failed to attend the adjourned hearing.
In August 2007, the respondent issued a fresh application for an order that the appellant attend court for questioning. The appellant attended on the specified date but he was not questioned because he maintained that he had not had time to gather the necessary financial information. The judge made a second suspended committal order and a new date was set for the appellant’s attendance. He again failed to appear and two further suspended committal orders were made.
The fourth order, setting out a date in May 2009 for his attendance, was successfully served on the appellant in person. He attended court and answered the questions put to him, as a result of which all the committal orders were discharged. However, the appellant appealed against the second and fourth committal orders, contending that they should not have been made.
Held: The appeal was allowed.
Under CPR 72.8, the court had a discretion to make a suspended committal order against a party that failed to comply with an order under CPR 72.2. However, the court ought to consider the circumstances behind the failure to attend before taking that step. In practice, judges routinely made committal orders whenever a judgment debtor failed to comply with an order under CPR 72.2, provided only that personal service had been established. A suspended committal order was used as little more than a vehicle for fixing a date for an effective adjourned hearing. An order for committal, even when suspended, was too serious a step to be taken as a matter of routine without enquiring into the nature of the contempt and the circumstances in which it had been committed and giving reasons for the decision. It was tantamount to a suspended sentence of imprisonment and it was irrelevant that such orders were rarely enforced.
The judge should be satisfied to the criminal standard that the judgment debtor was in contumacious contempt of court so as to justify an order for committal: Islamic Investment Co of the Gulf (Bahamas) Ltd v Symphony Gems NV [2008] EWCA Civ 389 applied. The judge would have to be satisfied that: (i) the debtor had been served with the order to attend; (ii) there was sufficient evidence to justify a finding to the criminal standard that the failure to attend or the refusal to take the oath and answer questions was intentional; and (iii) it was appropriate to make a suspended committal order.
If the judge was not so satisfied, he could adjourn his consideration of the matter and give directions, supported by a penal notice, for a hearing in court with directions to the debtor to attend or to file and serve an affidavit or affirmation as to certain matters by a specified date. Alternatively, the judge might decide not to make a committal order and to proceed in a different way, by, for instance, making a further order for the debtor’s attendance under CPR 72.2.
In the instant case, the judge appeared to have made the orders automatically. The history of the matter, including the appellant’s last-minute requests to defer questioning, might have constituted material on which the judge could have been satisfied to the criminal standard that: (i) the appellant’s alleged need for more time to collect his financial information was spurious; (ii) his failure to answer questions was intentional; and (iii) it was appropriate to make a suspended committal order. However, there was nothing to indicate that he had made any such finding or had given the matter other than perfunctory consideration. With the later orders, the judge had apparently done little more than carry forward the previous suspended committal order. The evidence did not demonstrate that he had properly exercised his discretion.
Christopher Jacobs (instructed by Hodge Jones & Allen LLP) appeared for the appellant; the respondent did not appear and was not represented.
Sally Dobson, barrister
