Civil procedure

first_imgCommittal for contempt – Suspended committal orders – Judgment debtor’s failure to attend court Broomleigh Housing Association Ltd v Emeka Okonkwo: CA (Civ Div): 13 October 2010 The appellant (O) appealed against two suspended committal orders obtained by the respondent housing association (B). O was a tenant of B, which had three unpaid costs orders against O in respect of withdrawn possession proceedings. B obtained an order under rule 71.2(2) of the Civil Procedure Rules that O attend court for questioning about his means for the purpose of enforcing the orders. The date for attendance was adjourned many times due to difficulties with service, and during the proceedings the court made two suspended committal orders, requiring O to attend on future dates. O submitted that the principles that applied to making committal orders in other contexts applied equally to proceeding under part 71 of the CPR and that a committal order should not be made unless the judge was satisfied to the criminal standard that the default was wilful and was such as to justify committing the judgment debtor to prison. Held: (1) The terms of rules 71.2, 71.3 and 71.8 of the CPR together suggested that a suspended committal order was intended to be the normal response to a failure by a judgment debtor to comply with an order to attend court for questioning. However, rule 71.8 gave the court power to make a committal order, which required an exercise of discretion and in turn required consideration of the circumstances of the contempt, Islamic Investment Co of the Gulf (Bahamas) Ltd v Symphony Gems NV [2008] EWCA Civ 389, The Times, April 4, 2008 followed. A suspended committal order was too serious to be used as a vehicle for fixing a date for an effective adjourned hearing. Following a reference to him under rule 1.8(1), the judge in determining whether to exercise his discretion should consider the following options: (a) if satisfied that the debtor was served with the order and that there was sufficient evidence to justify a finding to the criminal standard that the failure to attend was intentional and that in the circumstances it was appropriate to do so, he could make a committal order; (b) if not satisfied of the matters necessary for making a committal order, he could adjourn consideration of it and either (i) give directions, supported by penal notice, for a hearing in court, including directions for the debtor to attend, or (ii) give directions, supported by penal notice, for the debtor to serve an affidavit; (c) decide not to make a committal order and make a further order under rule 71.2 for the debtor’s attendance, perhaps including a recital stressing the possible consequences of further non-attendance (see paragraphs 21-22 of the judgment). (2) There was material on which the judge could have been satisfied that it was appropriate to make the first committal order, but there was no indication that he exercised his discretion in respect of either order (paragraphs 23-24). Appeals allowed. center_img Christopher Jacobs (instructed by Hodge Jones & Allen) for the appellant; no appearance or representation for the respondent.last_img read more