Andrew Paul Roberts v Kathryn Jayne Jones
[2024] EWHC 290 (KB)
Samuel Westrop v Mohamed Ali Harrath
22 December 2023
[2023] EWCA Civ 1566
Court of Appeal
A man was ordered to jail for not showing up to court to answer questions about his money. The court threw out the jail order because the person who wanted him in jail didn't follow proper rules about telling him about the court dates. The court also said that the order itself was unclear and didn't tell him about his rights, like getting a lawyer.
Key Facts
- •Mr. Harrath successfully sued Mr. Westrop for libel in 2017, with outstanding damages of £338,031.56.
- •Mr. Harrath applied for an order under CPR Part 71 for Mr. Westrop to attend court for questioning about his financial position.
- •Two orders were made (FEO and SEO), but service was questionable, with certificates suggesting uncertainty about Mr. Westrop's address.
- •Mr. Westrop, claiming residence in the USA, did not attend either hearing and was subsequently subject to a suspended committal order.
- •Mr. Westrop appealed, arguing procedural failures in serving the orders and the suspended committal order itself.
Legal Principles
CPR Part 71 provides a process for judgment creditors to obtain information from judgment debtors, potentially leading to a suspended committal order for non-compliance.
CPR Part 71
Rule 71.3 mandates personal service of the order to attend court, unless otherwise ordered. Failure to personally serve and inform the court of the inability to serve is a breach.
CPR 71.3
Rule 71.5 requires an affidavit of service detailing how and when the order was served. This is not a mere formality but essential for a valid committal order.
CPR 71.5
Rule 71.8 allows for a suspended committal order if the judgment creditor complies with rules 71.4 and 71.5. The court must exercise caution and consider the circumstances before making such an order. A suspended committal order is made on the court’s initiative.
CPR 71.8
Rule 81.4(2)(j) and relevant case law emphasize the defendant's right to legal representation and legal aid in contempt proceedings.
CPR 81.4(2)(j), Baz v Singapore Airlines
Rule 3.3(5) requires orders made on the court's own initiative without hearing the parties to state the right to apply to set aside, vary, or stay the order.
CPR 3.3(5)
Outcomes
The appeal was allowed.
The court found material non-compliance with CPR Part 71 rules 71.3 and 71.5 (lack of personal service and affidavit of service), rendering the suspended committal order unlawful. Further procedural defects in the committal order itself were identified (missing details of considered documents, lack of notice of the right to set aside the order, and lack of statement of the right to legal representation).
The suspended committal order of 11 August 2023 was set aside.
The non-compliance with CPR Part 71 rules 71.3 and 71.5 prevented the judge from properly concluding that Mr. Westrop's non-attendance was intentional. The committal order was also procedurally defective.
Mr. Westrop was ordered to give formal notice of his change of address.
He had previously received service of documents and was obligated to notify the court of any address change.