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The Court of Appeal have clarified the law on alternative service in contempt proceedings in an important judgment handed down in Commercial Bank of Dubai SC & Ors v Al Sari [2024] EWCA Civ 643. The Court of Appeal accepted the submission of the 1st Appellant (represented on appeal by Helen Pugh of Outer Temple Chambers) and 2nd Appellant (represented on appeal by James Leonard KC and Charlotte Elves) that an order permitting alternative service in a previous phase of the proceedings did not apply to contempt proceedings, and that the question whether service by alternative means should be permitted in contempt proceedings needed to be specifically addressed by the court in view of the special considerations applicable to such proceedings.
In this case the respondent bank had obtained an ex parte worldwide freezing order and an order permitting the bank to serve the WFO out of the jurisdiction, in the United Arab Emirates, on the 1st Appellant by, inter alia, text message, and on the 2nd Appellant by, inter alia, email. At the return date the appellants were represented by solicitors. Those solicitors were thereafter served with the contempt application pursuant to CPR r81.5(2).
However, before the hearing was listed (or specifically, relisted), the solicitors came off the record. The bank purported to serve the appellants pursuant to the original alternative service orders by text to the 1st Appellant and by email to the 2nd Appellant. Neither attended the relisted hearing. Mr Justice Butcher proceeded in the absence of the appellants and found them in contempt.
At the sanction hearing, which the appellants attended, the judge refused to set aside the contempt judgment and sentenced the appellants to 2 years’ imprisonment.
The appellants appealed, inter alia, on the ground that they had not been properly served with the notice of the contempt hearing and the judgment ought accordingly to be set aside. This was a new point raised for the first time on appeal.
Lord Justice Males, with whom Lady Justice Nicola Davies and Lady Justice Elisabeth Laing agreed, held in relation to an application for alternative service:
“In principle, I would hold that such an application must be made in the contempt proceedings, and that it is not sufficient that an order for service of ‘all other documents’ by alternative means has been made in an earlier phase of the proceedings.”
On the facts of this case, it followed that the appellants had not been properly served with notice of the relisted contempt hearing. Notwithstanding this, the Court of Appeal ultimately refused to grant the appellants permission to rely on this as a new point on appeal.
Helen Pugh, James Leonard KC and Charlotte Elves were instructed by Marc Livingston of Janes Solicitors.
Helen specialises in general commercial litigation, civil fraud, contentious insolvency and company law issues, and professional negligence. Her practice has a strong international element with expertise in jurisdictional disputes and conflict of law issues, including as they arise at an interim stage in applications for worldwide freezing orders and service out applications or on the substantive claim, and in the cross-border insolvency context.
James specialises predominantly in Health, Safety & Environmental Law and has an established practice in Disciplinary & Regulatory cases. He has a considerable background in complex industrial accident cases, fraud and corruption cases, financial services, multi-jurisdictional confiscation proceedings and Public Law.
Charlotte joined Chambers in 2023 following successful completion of her pupillage. Charlotte has a broad practice, including public law and sanctions, commercial litigation, insolvency, pensions and employment. She is a member of the Attorney General’s Junior Junior Scheme. Prior to starting pupillage, Charlotte was the Singer Fellow in Law and Ethics at Exeter College, University of Oxford, where she taught Medical Law, Criminal Law, Trusts and Jurisprudence.
News 13 Jun, 2024
