Hodge Jones & Allen

Committal Orders – Let’s Stop the Rubber Stamping

 

13th October 2010

 

The Court of Appeal today handed down judgment on Broomleigh Housing Association Ltd -v- Mr Emeka Okonkwo. This ruling significantly changes the principles that apply to the making of committal orders in civil courts.

 

In their joint leading judgment Lord Justice Moore-Bick and Lord Justice Wilson stated “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…..This appeal raised 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”.   

 

The rule on the application of committal orders is set out within the Civil Procedural Rules (CPR) Part 71.  The application of CPR 71 is often read in context of Court applications made by a judgment creditor to order a judgement debtor to attend court for their means to be assessed.  Rule 71.2(7) provides that the order will contain a penal notice.  However, as seen in the present case, the court has discretion whether to make a committal order and even on doing so, the judge will suspend the order on terms that the person shall comply with the order to attend court.   

 

Lord Justice Moore-Bick and Lord Justice Wilson stated when setting aside the two suspended committal orders made against the Appellant, Mr Emeka Okonkwo that “It appears from the documents in the present case that judges routinely make committal orders when the judgment debtor has failed – even for the first time – to comply with an order under Rule 71.2 to attend court..…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 figures for the period of imprisonment”.  

 

The solicitor for the Appellant, Mr Jayesh Kunwardia a Partner of Hodge Jones & Allen LLP states “suspended committal orders appear to have operated by the courts rather automatically in the past. It is hoped that the Court of Appeal’s judgment will offer clear guidance to judges when exercising discretion whether or not to make a suspended committal order.   This was certainly necessary to avoid any violation of Article 6 – the right to a fair trial”.   

 

Lord Carnwath the presiding judge in this case recognised that had the Court of Appeal not been bound by the authority of Islamic Investment Company of the Gulf (Bahamas) Ltd v Symphony Gems N.V. [20080 EWCA Civ 389 he would have welcomed fuller argument on the development of the present wording within the rules relating to committal orders, and on whether the simple, modern language should be allowed to stand on its own, without the need to import historic common law principles.      

 

Counsel for the Appellant, Mr Christopher Jacobs of Landmark Chambers states “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”.