Scriven, Re

On an appeal concerning contempt, the appellate court has a broad statutory discretion to do justice. A breach of a procedural requirement governing service of a committal order does not require a valid committal order to be set aside where the contemnor suffered no prejudice or injustice.

A judge’s signature is not a condition of validity for a county court warrant of committal. The requirement to serve the committal order protects the contemnor’s ability to challenge the order or purge the contempt, but its breach is material only if it impairs those purposes. A bankrupt required to attend a public examination has no entitlement to conduct money unless the court directs otherwise.

Following his bankruptcy, Mr Scriven was ordered to attend a public examination. He did not attend and, after his arrest and release, the examination was adjourned. At its resumed hearing he refused to enter the witness box or answer questions about his financial affairs. The Official Receiver then obtained an order committing him to six months’ imprisonment for contempt.

The warrant was executed some time later. Mr Scriven appealed out of time under section 13 of the Administration of Justice Act 1960. He contended that the resumed hearing was not a public examination, that the warrant required a judge’s signature, that the committal order had not been served, and that conduct money should have been tendered. The central issue was whether any procedural irregularity rendered his imprisonment unjust.

1. Appeal dismissed. The court treated the matter as a full appeal and held that no due-process failure created injustice sufficient to justify interference with the committal order.

2. The transcripts established that the hearing on 29 August 2001 was the adjourned public examination in bankruptcy. The earlier order and hearing had adjourned that examination, not a continuing issue of bail or punishment for the earlier non-attendance. Mr Scriven knowingly refused to be examined and was therefore in contempt.

3. Order 29, rule 1(5) of the County Court Rules required, unless otherwise ordered, service of the committal order before or at execution of the warrant. It did not make a judge’s signature a condition of the warrant’s validity. The High Court practice direction and Purchas LJ’s description of usual practice in B v B [1991] 2 FLR 588 did not establish such a legal requirement.

4. The committal order had not been served in accordance with the rule. The court accepted that service protects a contemnor’s ability to appeal, seek to set aside the order, or purge the contempt. However, section 13 of the Administration of Justice Act 1960 gave the court discretion to do justice. Applying the approach in M v P [1993] Fam. 167 and Nicholls v Nicholls [1997] 1WLR 314, a valid order should not be set aside for a technical procedural breach which caused no prejudice or injustice.

5. Mr Scriven knew a warrant existed, knew why he was arrested, had deliberately not attended the committal hearing, and identified no step he would have taken had the order been formally served. There was consequently no material infringement of the purpose served by rule 1(5). Beeston Shipping Ltd v Babanaft International SA [1985] 1 All ER 923, concerning notice of the time and place of an examination, did not govern this different defect.

6. Rule 7.41(1) of the Insolvency Rules 1986 excluded any entitlement to conduct money for the bankrupt absent a direction of the court. The six-month sentence was also not excessive, given the two-year maximum for this contempt.

• Court of Appeal (Civil Division) — dismissed the full appeal against the committal order under section 13 of the Administration of Justice Act 1960: [2004] EWCA Civ 683.
• Stockport County Court — His Honour Judge Howarth committed Mr Scriven to six months’ imprisonment for contempt on 5 July 2002.
• Earlier related proceedings — the Divisional Court refused habeas corpus. On an earlier occasion, the Court of Appeal dismissed the appeal concerning habeas corpus but adjourned the appeal against committal for an expedited hearing.