Davy International Ltd v Tazzyman (Davy International Ltd v Durnig)

The court may use the discretion in Order 45, rule 7(7) of the Rules of the Supreme Court to dispense retrospectively with service of a mandatory or prohibitory order. The power is not confined to the time when the order is made or to the period before compliance falls due. Its exercise depends on whether dispensation is just.

Where conflicting Court of Appeal decisions cannot be reconciled, the court must choose which line to follow. The earlier decisions ordinarily prevail where they bound the later courts and were not cited to them.

An Anton Piller order imposed mandatory and prohibitory obligations on a company. The copy served at its premises lacked the prescribed penal notice, and the individual officers and employees alleged to have frustrated its execution were not personally served. A director resident in Austria later supplied an affidavit which was alleged to be defective and materially false.

The plaintiffs sought sequestration of the company's assets and committal of identified individuals. May J permitted amendment of the contempt motion and refused to strike it out. The company and director appealed.

The central question was whether Order 45, rule 7(7) of the Rules of the Supreme Court permitted the court to dispense with service retrospectively after the conduct alleged to constitute breach of a mandatory order.

1. Appeal dismissed unanimously. Morritt LJ delivered the principal judgment. Phillips and Leggatt LJJ agreed. Order 45, rule 7(7) of the Rules of the Supreme Court confers a general discretion to dispense with service where the court considers that course just. Its wording and statutory context do not confine the power to prospective dispensation or exclude mandatory orders.

2. The specific requirements governing personal service, timely service of mandatory orders and penal notices are expressly subject to rule 7(7). The limited provision in rule 7(6) for enforcing prohibitory orders on notice does not restrict the general dispensing power. A prospective-only construction would leave the court unable to respond where a person present when a mandatory order was made deliberately evaded service and refused to comply.

3. Turner v Turner (1978) Sol J 696 decided, rather than merely assumed, that the altered rules permitted retrospective dispensation. Hill Samuel v Littaur (unreported, 3 April 1985) followed that approach and established that rule 7(7) could operate retrospectively.

4. Lewis v Lewis [1991] 1 WLR 235 and Denman v Temple (unreported, 9 May 1991) reached the contrary conclusion without being referred to the two earlier decisions. Applying Young v Bristol Aeroplane Co Ltd [1944] KB 718 and Davis v Johnson [1979] AC 264, the court was entitled and bound to choose between the conflicting lines. It followed the earlier authorities, which accorded with the correct construction of rule 7(7).

5. The court decided only that retrospective dispensation was legally available. Whether that discretion should be exercised remained for the judge hearing the contempt motion. The appeal's dismissal did not determine whether recklessness was a sufficient state of mind for interference with the administration of justice or whether the alternative contempt jurisdiction was available against a party.

The appeal was dismissed with costs, including the costs of the respondent's notice. Leave to appeal to the House of Lords was refused.

1. Court of Appeal: Unanimously dismissed the appeal from May J's refusal to strike out the contempt motion. The court held that retrospective dispensation from service was available under Order 45, rule 7(7) of the Rules of the Supreme Court.

2. High Court, Queen's Bench Division: May J permitted amendment of the contempt motion and refused to strike it out. He preferred the earlier Court of Appeal authorities and held that rule 7(7) could be exercised retrospectively in relation to mandatory orders.

3. High Court, Queen's Bench Division: Sir John Wood, sitting as an additional judge, granted the plaintiffs an Anton Piller order on 24 May 1996.