The judgment debtor was ordered to attend for questioning under Rule 71.2. The attendance was adjourned several times, and at last to 31st January 2008. He was under investigation in India and needed permission to travel, which was given but only until 31st January. The judgment creditor declined a further adjournment to allow him to comply, and he applied for an adjournment and left the country. The judge made a suspended committal order. The officer had and shown the judge the correspondence explaining the difficulty and seeking an adjournment. The judge committed Mr. Mehta to prison for 28 days, but suspended the order so long as he attended for questioning on 11th March 2008. Mr. Mehta now appealed.
Held: Rules 71.2, 71.3 and 71.8 together might suggest that a suspended committal order is the normal response to a failure by the judgment debtor to comply with an order to attend court for questioning. That was incorrect. The essential question was whether the judge had been right to be satisfied to the criminal standard that Mr. Mehta was in ‘contumacious’ contempt of court so as to justify an order of committal. The judge ought not to have made a committal order, even a suspended order, because the evidence did not enable him to be satisfied of that. Rix LJ said: ‘everything about that rule [sc. rule 71.8] and the notes in the White Book beneath it suggest that the making of such an order is almost a matter of form, and indeed it is provided for by the fact that there is a court form – a standard form – providing for this type of order. It appears to be thought that no harm is done if the very excellent consequence of such an order is that on the next occasion, under the threat of this order having been made, the judgment debtor does indeed appear for examination.
The fact is, however, that an order for committal to prison (albeit suspended) has been made. It seems to me that a judge needs to be suitably cautious about making such an order in the light of evidence before the court – whether it is of a medical kind or, as in this case, evidence from a lawyer, relating to the fact that the judgment debtor in question was not permitted to be outside a foreign country on the day in question – which may make it inappropriate for a suspended order to be made. It may be that in such circumstances it would be appropriate for the judge in question to issue a warning that it is very likely that, if the judgment debtor does not appear on the next occasion fixed, such an order for committal may well be made on that occasion.’
Tuckey, Auld, Rix LJJ
[2008] EWCA Civ 389
Bailii
England and Wales
Cited by:
Cited – Broomleigh Housing Association Ltd v Okonkwo CA 13-Oct-2010
The court considered an application for committal where the evidence was not so conclusive as to allow committal, but where a suspended order might assist in ensuring better compliance. O had failed on several occasions to attend court to be . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice
Updated: 11 December 2021; Ref: scu.267078
