England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CROYDON COUNTY COURT
His Honour Judge Ellis
(4CR21513)

		Royal Courts of Justice Strand, London, WC2A 2LL
		13 October 2010

Lord Justice Moore-Bick and Lord Justice Wilson:

1. The power to commit a person to prison for contempt is one of the most powerful sanctions available to the court to punish those who flout its authority and to compel compliance in the future. Since it involves an interference with the liberty of the subject it is a power which is exercised with care and only in cases where disobedience is intentional and where in all the circumstances the order is appropriate. Sometimes the order is suspended on condition that the defendant does not disobey again. This appeal raises an important question about the power to commit in circumstances where the evidence before the court is not such as to justify its exercise by reference to general principles, but where a suspended order of committal is nevertheless seen as an effective way in which to ensure future obedience to a separate order.
2. The circumstances giving rise to the appeal are in many respects not unusual. The appellant, Mr. Emeka Okonkwo, is the tenant of 6 Norfolk House, 40 Croydon Road, Penge, a property owned and managed by the respondent, Broomleigh Housing Association ("the Association"). Since 1999 the Association has made three claims for possession against Mr. Okonkwo, each of which was ultimately withdrawn on terms that he pay its costs amounting to £120.00, £155.25 and £166.43 respectively. The most recent of those orders was made on 30^th April 2004. None of the orders for costs has been satisfied.
3. On 23^rd May 2005 the Association applied to Croydon County Court for an order that Mr. Okonkwo attend for questioning about his means and provide information needed to enforce the order made on 30^th April 2004. Attached to the application was a list of additional questions that the Association wished the court to ask Mr. Okonkwo relating to other properties in South East London. On 8^th June 2005 an order was made for Mr. Okonkwo to attend the court for questioning on 2^nd August 2005. However, the Association failed to serve the papers on Mr. Okonkwo and the matter was adjourned. On 22^nd August 2005 the court made an order for him to attend on 21^st September 2005. It is not clear why the matter was not dealt with on that date, but a further order was made on 5^th October 2005 for him to attend on 12^th January 2006. Mr. Okonkwo failed to attend, but that is not surprising because on 10^th March 2006 the Association wrote to the court saying that the order had not been served on him and asking for the case to be re-listed. As a result another order was made on 7^th March for Mr. Okonkwo to attend on 3^rd May 2006. On 2^nd May 2006 the Association wrote to the court again saying that it had been unable to serve the order on Mr. Okonkwo and asked for it to be reissued for a new date.
4. On 3^rd May 2006 the court made another order directing Mr. Okonkwo to attend for questioning on 5^th July. On 20^th July the court wrote to the Association informing it that Mr. Okonkwo had failed to attend and asking how it wished to proceed. In its reply dated 31^st August 2006 the solicitors acting for the Association said that they were unable to prove that he had been served with the order of 3^rd May; they said they would try again. Another order was made for Mr. Okonkwo to attend on 22^nd November 2006.
5. The Association continued to have difficulty in serving Mr. Okonkwo. On 3^rd November 2006 Mr. Richard Cunningham, a housing officer employed by the Association, made an affidavit in which he said that on 25^th October 2006 he had approached Mr. Okonkwo outside the court and had served him with a copy of the order. In a statement made for the purposes of these proceedings, however, Mr. Okonkwo says that Mr. Cunningham merely thrust a document towards him which fell to the ground and that he was not sent any other copy of the order. At all events, Mr. Okonkwo failed to attend court on 22^nd November 2006 and on 11^th December 2006 Judge Ellis made an order committing him to prison for 7 days, but suspended it so long as he attended court on 13^th March 2007. This was the first suspended committal order made against Mr. Okonkwo but it is not a subject of the appeal. Later Mr. Okonkwo spoke to the court manager. He told her that he had not received the order of 3^rd May and needed more time to assemble the material he needed to answer questions about his means. It was agreed that he would be given more time and on 19^th March 2007 an order was made adjourning the hearing to 24^th April 2007.
6. On 5^th April Mr. Okonkwo wrote to the court acknowledging receipt of the order made on 19^th March. He said that he would be unable to compile the necessary documents as quickly as he had expected and would be unable to cope with his affairs for the next six weeks due to illness. He therefore asked the court to fix another date for his attendance not before 31^st May. On 20^th  and 25^th April 2007 Mr. Okonkwo wrote to the court asking what the position was. The papers, including his letter, had by that time been placed before the judge for a decision. The judge decided that the hearing should not be further adjourned, but unfortunately the court did not reply to Mr. Okonkwo's letters until 24^th May. He did not attend on 24^th April, but since the Association had failed to file an affidavit of service of the order of 19^th March, the court felt unable to take any further steps at that stage.
7. On 8^th August 2007 the Association issued a fresh application for an order that Mr. Okonkwo attend for questioning and on 15^th August an order was made for him to attend on 27^th November 2007. It was served on him by Mr. Andrew Mackay, another of the Association's housing officers, on 17^th September. On 26^th November 2007 Mr. Okonkwo wrote a letter to the court saying that he had not been able to complete the financial information required to conduct the questioning and asking that the hearing be put back until after the end of February 2008. However, he attended court on 27^th November taking the letter with him and was seen by Ms. Cattle, the officer who was expecting to conduct the questioning, to whom he gave it. It is not entirely clear exactly what then occurred, but the questioning did not proceed. According to Mr. Okonkwo, Ms. Cattle was annoyed and said that she would put the letter before the judge. Mr. Okonkwo says that he heard nothing further from the court or the Association.
8. Following her conversation with Mr. Okonkwo, Ms. Cattle completed a document entitled "Record of examination" (Form EX140). She entered no record of any answers to questions (since there were none), but added in the certificate box the following words:

"He attended but stated he needed more time before he could fill in form (see letter). "

9. The next day another officer of the court, Mrs. Friend, completed a Reference to Judge (Form EX142) certifying that Mr. Okonkwo had attended court pursuant to the order of 15^th August 2007 but had "refused" to answer any questions. On 30^th November 2007 Judge Ellis made an order committing Mr. Okonkwo to prison for 7 days, suspended so long as he attended court at a time and place to be fixed by a court officer. The reasons given for making the order were that Mr. Okonkwo had not requested payment of his travelling expenses and that, having attended court, he refused to answer any question. The judge made his order by way of annotation at the foot of the Reference to Judge form which had been completed by Mrs Friend; but a formal order was then drawn in Form N79A for service on Mr. Okonkwo. This is the second suspended committal order made against Mr. Okonkwo and is the first of the two orders under appeal.
10. The term of suspension was that Mr. Okonkwo should attend court again on 21^st February 2008, but he failed to do so. He says that he was not made aware of the order and shortly afterwards the Association accepted that it had failed to serve it on him. It appears from correspondence that on 24^th September 2008 a third suspended committal order was made for Mr. Okonkwo to attend court for questioning, this time on 8^th January 2009. This third suspended committal order, a copy of which has not been made available to this court, is not a subject of any appeal. Despite the fact that the court had expressly drawn the Association's attention in correspondence to the need to serve Mr. Okonkwo personally with the order not less than 14 days before the date fixed for his questioning, it appears that it failed to do so. He was therefore unaware of the steps being taken to require his attendance. When that became apparent the Association's solicitors asked for the matter to be relisted as soon as possible and on 12^th February 2009 Judge Ellis made a fresh order committing Mr. Okonkwo to prison for 7 days, suspended so long as he attended court on 5^th May 2009 and complied with the order made on 15^th August 2007. No reasons for making the order were given other than the bare facts that he had not requested payment of his travelling expenses and had (so it was said) failed to attend on 27^th November 2007. This is the fourth suspended committal order against Mr. Okonkwo and is the second of the two orders under appeal.
11. Although evidence was filed by the Association to the effect that Mr. Okonkwo had at first sought to evade service of the order dated 12^th February 2009 by allowing it to be dropped at his feet rather than to be received into his hands, he was in the end, on any view, validly served with it. Mr. Okonkwo did attend court on 5^th May 2009 and answered the questions put to him. As a result the committal orders (presumably all the committal orders) were discharged. In one sense, therefore, these appeals might be said to be academic, but Mr. Okonkwo, who wishes to pursue a career in the law, is said to be concerned that to have had committal orders made against him might harm his prospects. For that reason, and because these appeals raise some important questions relating to the use of committal orders, we considered that it would be right to hear the appeals.
12. The ability to question judgment debtors about their means is an important weapon in the armoury of judgment creditors, since the answers may provide information that will enable the judgment to be enforced. An order for their attendance at court for the provision of information about their means may be made without notice by a court officer and can be obtained by a judgment creditor as of right: Rule 71.2(2). Rule 71.2(7) provides that the order will contain a penal notice, as did both of the orders under appeal. The order must be served personally on the judgment debtor and the judgment creditor must file an affidavit of service: Rules 71.3 and 71.5. Rule 71.7 provides that if the hearing is adjourned the court will give directions as to the manner in which notice of the new hearing is to be served on the judgment debtor.
13. Rule 71.8 is of particular relevance to these appeals. It provides as follows:

"(1) If a person against whom an order has been made under rule 71.2—

(a) fails to attend court;

(b) refuses at the hearing to take the oath or to answer any question; or

(c) otherwise fails to comply with the order,

the court will refer the matter to a High Court judge or circuit judge.

(2) That judge may, subject to paragraphs (3) and (4), make a committal order against the person.

(3) A committal order for failing to attend court may not be made unless the judgment creditor has complied with rules 71.4 and 71.5.

(4) If a committal order is made, the judge will direct that—

(a) the order shall be suspended provided that the person—

(i) attends court at a time and place specified in the order; and

(ii) complies with all the terms of that order and the original order; and

(b) if the person fails to comply with any term on which the committal order is suspended, he shall be brought before a judge to consider whether the committal order should be discharged."

14. Two things should be noted about the language of that rule: first, that it gives the court a discretion whether to make a committal order ("that judge may . . . make a committal order against the person."); second, that, if it does so, the court will suspend the order on terms that the person should comply with the order to attend court on a later specified date. ("If a committal order is made, the judge will direct that the order shall be suspended . . . ").
15. It appears from the documents in the present case that judges routinely make committal orders whenever the judgment debtor has failed – even for the first time – to comply with an order under Rule 71.2 to attend court, provided only that personal service upon him has been established. Indeed, it has become so much a matter of routine that, as we have indicated, standard forms are used which require little more than ticking boxes and entering a figure for the period of imprisonment.
16. If the debtor fails to attend court on the later date specified in the suspended committal order, then, provided that the court is satisfied that he has been personally served with that order, he must be brought before a judge in accordance with the direction which, pursuant to Rule 71.8(4)(b), will have been contained in it. The mechanism for issuing the warrant to bring him before the judge is set out in paragraph 8 of the Practice Direction supplementing Part 71. Once he has been brought before the court, then, according to the commentary on Rule 71.8 in Civil Procedure, Vol I, 2010, "in practice the order is invariably discharged because the debtor agrees to be examined there and then thus completing the purpose of Pt 71". The editor's use of the word "invariably" seems bold but, on any view, it seems that it is (at least) very rare for a suspended committal order made under Rule 71.8 to be activated because the object behind making it will usually, in one way or another, have been achieved.
17. Since many orders to attend are made in county courts around the country every week, and since failures to attend are not uncommon, one can understand why it should have become routine for the court to respond with suspended committal orders. Nonetheless, given that an order for committal is an order for imprisonment, it might have been thought appropriate for judges to consider the circumstances giving rise to the failure to attend before taking that step. The fact that such orders are suspended and are very rarely, if ever, enforced by imprisonment is not really a satisfactory explanation for this state of affairs: first, because a suspended order for committal is tantamount to a suspended sentence of imprisonment and second, because it is undesirable for the court to approach the making of severe orders with any degree of promiscuity just because it has an expectation, however well justified, that they are unlikely to need to be enforced.
18. In Islamic Investment Company of the Gulf (Bahamas) Ltd v Symphony Gems N.V. [2008] EWCA Civ 389 an order was made under Rule 71.2 for the questioning of the judgment debtor, Mr. Mehta. The date fixed for his attendance was put back several times, eventually to 31^st January 2008. By the time that date was fixed Mr. Mehta was in India and since he was under investigation by the Indian authorities he required the permission of the Indian court to travel abroad. The court gave him permission to be out of India only until 31^st January 2008. On 29^th January 2008 his English lawyers asked the judgment creditor to agree to a further adjournment on the grounds that he had to be in India by midnight on the date fixed for his questioning. The judgment creditor refused, so Mr. Mehta made an application to the court for an adjournment and left the country. He did not attend court on 31^st January and the matter was referred to Bean J. as the duty judge. He made a suspended committal order on what was described by Rix L.J. in his judgment as a standard form, which we suspect was Form N79A used by the judge in this case; but there was also evidence before the court that the officer who had expected to conduct the questioning had appeared before the judge and taken him through the papers, including 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 11^th March 2008. Mr. Mehta appealed to this court against the order.
19. The terms of Rules 71.2, 71.3 and 71.8 together suggest that a suspended committal order is intended to be the normal response to a failure by the judgment debtor to comply with an order to attend court for questioning. However, that was not the view taken by this court, which considered that the essential question for determination 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. Rix L.J., with whom Tuckey L.J. and Sir Robin Auld agreed, held that 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. He went on to say this:

"28. . . . 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.

29. 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."

20. Mr. Jacobs submitted that the case demonstrates that the principles that apply to making committal orders in other contexts apply with equal force to cases of this kind and that such an order should not be made unless the judge has satisfied himself to the criminal standard that the default is wilful and such as to justify committing the judgment debtor to prison. He also submitted that before the judge can properly make a committal order he must not only consider all the evidence but allow the judgment debtor to be heard in his own defence; and that a failure to do so would involve a breach of Article 6 of the European Convention on Human Rights.
21. Whatever the practical utility of making suspended orders for committal as a routine response to a failure by a judgment debtor to comply with an order to attend for questioning (which, in the light of the facts of this case, may be more limited than might at first sight appear), we think that Mr. Jacobs was right in saying that the decision of this court in Islamic Investment Co is inconsistent with any approach which makes such a response routine. Rule 71.8 gives the court power to make a committal order, but that requires the exercise of discretion, which in turn requires consideration of the circumstances of the contempt. Committing a person to prison for contempt of court is a serious step, too serious, in my view, to be undertaken simply as a matter of routine without enquiring into the nature of the contempt and the circumstances in which it has been committed and giving reasons, at any rate briefly, for the decision.
22. We suggest that, following reference to him under Rule 71.8(1), the judge, in determining whether to exercise his discretion to make a suspended committal order under paragraph (2), has at least four options, all of which he needs to consider:

(a) If satisfied not only that the debtor was served with the order to attend but also that there is sufficient evidence before him to justify a finding to the criminal standard that the debtor's failure to attend (or refusal to take the oath and answer questions) was intentional and that in the circumstances it is appropriate to do so, he may proceed to make a suspended committal order. In our view by doing so he will not infringe the debtor's rights under Article 6 since the debtor will have an opportunity to challenge the order before it is enforced. If he does make an order, however, he must provide written reasons, at any rate briefly, for recital in the order in Form N79A for service upon the debtor. With respect to Rix LJ, we would not ourselves favour a reference in this context to contumacy, if only because the word is perhaps slightly arcane; nor, with respect to the writer of the commentary on Rule 71.8 in Civil Procedure, Vol I 2010, would we favour a reference to contumely, which speaks more of insolence than of obstinacy. But, in having regard to the circumstances, the judge will of course weigh all the evidence which suggests that there was – or was not – some extra obstinate or obstructive dimension to the debtor's intentional breach of the order.

(b) If not satisfied of the matters necessary for the making of a suspended committal order, the judge can adjourn consideration of it and, if so, can proceed in one of two ways: either

(i) he can give directions, supported by a penal notice, for a hearing in court, including directions for the debtor (and perhaps also for the creditor) to attend; or

(ii) he can give directions, again supported by a penal notice, for the debtor (and perhaps also for the creditor) to depose to specified matters and to file and serve the affidavit or affirmation by a specified date.

(c) Alternatively, the judge can decide there and then not to make a committal order and to proceed in a different way, probably by making a further order under Rule 71.2 for the debtor's attendance at court to provide information (before a court officer unless there are compelling reasons for the hearing to be before a judge: paragraph 2.2 of the Practice Direction supplementing Part 71). The further order will contain a penal notice in any event (Rule 71.2(7)), but the judge may favour including a recital which, in the light of the background, stresses the possible consequences of further non-attendance even more clearly to the debtor.

23. Judgment was delivered in Islamic Investment Co on 11^th March 2008, but the case has not been reported and its effect does not appear to have been widely appreciated. The present case provides a good illustration. The court officer, Ms Cattle, completed the Record of examination stating that Mr. Okonkwo had attended, had asked for more time and had produced a letter setting out his position. It is not clear what material was before the judge when on 30^th November 2007 he made the first of the two orders under appeal. He may have had the court file, or he may just have had Mr. Okonkwo's letter, or both, or neither; one cannot tell. However, since the Reference to Judge did not refer to the letter and simply stated that Mr. Okonkwo had attended but had refused to answer any questions, one is entitled to wonder whether the judge was in fact shown the letter. Although the order recites that the judge had heard Mr. Okonkwo in person before making the order, all the indications are that he did not do so; on the contrary, it seems fairly clear that the judge made his order at his desk and that the procedure operated automatically. In the light of the history of this matter, including the numerous requests by Mr. Okonkwo, mostly at the last minute, to defer his questioning, there was material on which the judge might have been satisfied to the criminal standard that his alleged need for still more time to collect his financial information together was spurious, that his failure to answer Ms Cattle's questions did indeed amount to an intentional refusal to do so and that in the circumstances it was appropriate to make the suspended committal order; but there is no indication that he made any such finding or even that he gave the matter anything other than perfunctory consideration.
24. The circumstances in which the second order under appeal was made are even more obscure. The Association notified the court that it had failed to serve Mr. Okonkwo with the order requiring him to attend on 8^th January 2009 and asked for a new date to be fixed. In effect, it was seeking an adjournment. The order itself recites that it was made without hearing either party and we take that to be correct. It also recites that the court was satisfied that Mr. Okonkwo had not attended on 27^th November 2007 to be questioned. That was plainly incorrect and in any event by 12^th February 2009 two later dates for his examination had come and gone. It is not easy to see on what basis the judge could have been satisfied at that time that the circumstances were appropriate for a suspended committal order. It appears that the judge was doing no more than carrying forward the suspended committal order made almost five months earlier, subject to the insertion of yet another date for attendance. The evidence does not demonstrate, however, that in that regard there was any sufficient exercise of his discretion.
25. For these reasons we would allow both appeals. The case has left us with the clear impression that, perhaps with implicit encouragement from the terms of Rule 71.8, a suspended order of committal is currently being used as little more than a vehicle for fixing a date for an effective adjourned hearing. In our view an order for committal, even when suspended, is too serious a matter to be used in that way. Judges have a discretion whether to make such an order and must exercise it – and be seen to exercise it – with due regard to its seriousness. In that regard we hope in particular that our suggestions in paragraph 22 above may be of use to them.

Lord Justice Carnwath:

26. I agree that the appeal must be allowed, for the reasons given by Moore-Bick and Wilson LJJ.
27. I confess that, had we not been bound by the authority of the Islamic case, I would have welcomed fuller argument on the development of the present wording, and on whether the simple, modern language should be allowed to stand on its own, without the need to import historic common law principles.
28. Mr Jacobs has helpfully given us some of the background. The present form emerged from a substantial process of review of court enforcement processes, initiated by the then Lord Chancellor, Lord Irvine, in March 1998. Among the aspects considered were the oral examination procedure, which was subject to widespread criticism. For example, a Consultation Paper issued in January 2000 commented:

"The oral examination was the most heavily criticised procedure of all those included in the first consultation paper. The responses to that consultation suggested that creditors have extremely low expectations of an oral examination and tend, therefore, to use them only as a last resort. Particular criticisms were that the procedure was too slow, too easily dragged out by the debtor, and the information obtained was often inaccurate and of dubious quality...

The main problem with the existing procedure is that its effectiveness relies ultimately on a certain degree of co-operation from the debtor. If a debtor is not inclined to co-operate, there is little, in the short term, that the court can do to encourage a change of attitude. The threat of imprisonment only becomes real some way down the line, after the debtor has failed to attend two appointments at the court..." (Enforcement Review: Warrants and Writs, Oral Examinations and Judgment Summonses, CP 4, p 28)

The new Part 71 was designed to meet these criticisms, retaining imprisonment as the last resort, but streamlining the process, subject to appropriate protections.

29. Although there was full argument in the Islamic case, with able representation on both sides, the court does not seem to have been referred specifically to the background of the modern procedure. I agree, however, that it is not open to us to revisit these issues. The guidance offered in the judgment of Moore-Bick and Wilson LJJ, with which I also agree, should ensure that the objectives of the reforms can be achieved, with proper but not excessive respect for the rights of defendants.