Court of Appeal gives guidance on CPR Part 71 after successful appeal by Jeremy Scott-Joynt

The Court of Appeal has provided an authoritative guide to the procedure required to find a debtor in contempt under Part 71 of the Civil Procedure Rules following an appeal concerning contempt of court in which Jeremy Scott-Joynt successfully acted for the appellant.

In its judgment, handed down on 22 December 2023 under neutral citation [2023] EWCA Civ 1566 following a hearing on 19 December, the Court considered what ought to happen where a judgment debtor did not appear before the Court when ordered to do so under Part 71 – but where personal service had not been undertaken. In doing so, it stressed “the need for full compliance with the different parts of the Part 71 procedure before the making of a suspended committal order under r.71.8”.

Finding for the appellant, Coulson LJ – with whom Lewison and Moylan LJJ agreed – said that a Court presented with such a situation could not properly find under r.71.8 that the absent debtor had committed a contempt of court by deliberately staying away. This was the required default, and without proof of personal service in an affidavit (or the Court’s prior permission for substituted service following an affidavit describing how personal service had been tried and had failed) not only would such a finding be unsustainable; the Court would have no power to make it.

Importantly, the Court of Appeal also found that any order finding a debtor in contempt after a failure to appear for examination – which in any case must suspend any committal to prison pending a return hearing – has to inform the debtor:

• Firstly, of their right to legal representation, and to legal aid to pay for it; 
• Secondly, that they have the right to apply to vary or set aside the order, not just to appeal it;
• Thirdly, of what documents the Court has considered in reaching its finding of contempt.

As Coulson LJ found at paragraph 57 of his judgment:

“…CPR Part 71 provides a clear route by which a judgment creditor can get a judgment debtor to provide relevant information as to his financial position. If there are difficulties with the debtor, the process can end in a suspended committal order under r.71.8 and, in the vast majority of cases, that should and will be enough to ensure that the judgment debtor complies with the court order. But the procedure only works, and only fairly balances the rights of the judgment creditor and the judgment debtor, if the judgment creditor complies with the detailed rules.”

A detailed analysis of the judgment, which is the first fully to describe the process required under r.71.8 properly to find an absent debtor in contempt, will follow early in the New Year.

Jeremy was instructed in this matter by Marc Livingston of Janes Solicitors.

This is the second time this month that members of Outer Temple have persuaded the Court of Appeal to set aside a contempt order. Earlier in December, Fiona Horlick KC was successful in having a finding of contempt set aside, also following significant procedural defaults (click here to read more). The judgment in that matter was handed down on 21 December 2023.

Find out more

Jeremy’s primary areas of practice include business crime, sanctions, regulation and commercial litigation – in particular financial crime, investigation and regulation, in both the public and private sectors. More widely, he acts in commercial and regulatory cases involving cryptoassets and data protection/privacy issues. For further information, contact Sam Carter on +44 (0)203 989 6669 or George Bennett on +44 (0)207 427 0807 for a confidential discussion.

News 22 Dec, 2023