Practice and Procedure


PUBLISHED July 31, 2003

There was no doubt that the interests of justice required the setting aside of a committal order since the judge had failed to follow Practice Direction: (Supplements RSC Order 52 and CCR Order 29 - Committal Applications) (1999) and the defects in the procedure adopted by judge were too serious and too prejudicial to have allowed it to stand.Appeal by the defendant ('B') from a suspended committal order made by HH Judge Kennedy QC on 11 July 2003. The underlying action was one for breach of an agreement between B and the claimant ('Amberley'). On 21 May 2002 Amberley obtained judgment against B, and he was ordered to pay the judgment debt within 14 days. He did not pay and B was ordered to attend at court to provide details of his means. A number of hearings ensued in which the court attempted to gain information concerning B's means, in particular details of his bank account. On one instance he attended at court for examination and informed the court that he held a bank account in his sole name ('the account') but at that stage could not provide further account details. On 9 July 2003, of his own motion, HH Judge Kennedy QC wrote to B and directed him to attend court on 11 July to explain his evidence in relation to the account. The judge attached a penal notice to the letter and stated that he also attached a copy of a letter from the bank setting out its view of the account. However, a copy of the bank's letter was not attached to the judge's letter. B appeared before the judge on 11 July in person and was questioned by the judge. The essence of the judge's questions related to the account and what the judge saw as misleading answers given by B when he was examined by the court. The judge concluded that B had lied to the court and he made the committal order setting out three findings of contempt. The penalty imposed for each contempt was 28 days imprisonment to run consecutively. However, the judge suspended the order in response to B's request that he be allowed to pay the judgment debt. On that basis the order was suspended for 7 days. B's appealed on the grounds that the judge failed to comply with proper procedures on contempt proceedings, and erred by using the committal process as a means of enforcing the judgment debt.HELD: (1) In general it was desirable that contempt actions were kept separate from private actions. However, in the present case, the committal order was made in the form that it was, namely suspended for 7 days for B to pay the debt, following B's request. On that ground the judge could not therefore be criticised. (2) There were procedures set out in Practice Direction: (Supplements RSC Order 52 and CCR Order 29 - Committal Applications) (1999) which were to be followed on applications for an order for committal of a person to prison for contempt of court or contempt in the face of the court. The procedures adopted by the judge were not in the spirit or letter of the Practice Direction. (3) The letter from the judge to B giving him two days' notice to attend on the court to provide information of the account, failed to give B sufficient time as provided in the Practice Direction, and was defective since the letter from the bank was not attached. The judge did not give B time to reflect on his conduct (see para.12 of the Practice Direction), and the letter was not in any way a claim form satisfying the requirements in para.13. The judge failed to inform B in detail, and in writing, of the actions and behaviour that had given rise to the committal application (see para.13(2)), failed to allow a reasonable time for responding to the committal application, including, if necessary, preparing a defence (para.13(4)(a)), did not make B aware of the availability of assistance from the Community Legal Service and how to contact the Service (para.13(4)(b)), did not give B the opportunity to obtain legal advice (see para.13(4)(c)), and did not give B a reasonable time para.19(4)(e)). Further, there was a clear breach of para.2.6(2) and para.2.6(2) in that the application notice did not set out in full the grounds on which the committal application was made and did not identify, separately and numerically, each alleged act of contempt, and the hearing was less than 14 days after the service of the judge's letter, which was a breach of para.4.2. (3) In all the circumstances, the judge failed to give effect to what the Practice Direction required. There was no doubt that the interests of justice required the setting aside of the order (Nicholls v Nicholls (1997) 1 WLR 314 applied). The defects in the procedure adopted by the judge were too serious and too prejudicial to have allowed it to stand. Further, the procedure was a breach of B's right to a fair trial under Art.6 of the European Convention on Human Rights.Appeal allowed.