Pelling v Bow County Court

A committal order for failing to attend court cannot be made unless the judgment creditor has complied with rules 71.4 and 71.5 of the Civil Procedure Rules 1998. The requirements include arrangements for travelling expenses and affidavit evidence addressing service and the expenses requirement. Rule 71.83 makes non-compliance fatal to the validity of the committal order. A further defect may arise where the affidavit omits information required by the relevant Practice Direction, including the outstanding judgment debt. Claims concerning judicial acts are subject to the forum restrictions identified under the Human Rights Act 1998 and CPR Part 7.11.

Dr Pelling had been ordered to pay costs arising from earlier judicial review proceedings concerning Bow County Court rules. After he failed to attend an examination about his means, Beatson J made a suspended committal order on 28 July 2004. Following a further failure to attend, a bench warrant was issued. Royce J discharged the warrant because the first order had not been served, but then made a second suspended committal order when Dr Pelling failed to attend a later hearing.

Dr Pelling appealed to the Court of Appeal against both orders. The central issue was whether the committal orders could stand despite the judgment creditor’s failure to comply with the procedural requirements governing attendance and committal.

Appeal allowed. The court granted the necessary extension of time for the appeal. Lord Justice Scott Baker gave the judgment, and Lord Justice Thomas agreed.

1. The respondent conceded that both suspended committal orders should not have been made and could not stand. Rules 71.4 and 71.5 of the Civil Procedure Rules 1998 required compliance with the travelling-expenses provisions and with the requirements for affidavit evidence concerning service and expenses.
2. The affidavit proved service, but it did not state that Dr Pelling had not requested travelling expenses or that the judgment creditor had paid them if requested. The omission meant that the requirements of rule 71.5 had not been met.
3. Rule 71.83 made the failure fatal. A committal order for failure to attend court could not be made unless the judgment creditor had complied with rules 71.4 and 71.5. Both orders were therefore invalid. The affidavit also failed to comply with the relevant Practice Direction because it did not set out the outstanding amount of the judgment debt.
4. The court did not finally determine Dr Pelling’s other claims, including claims under the Human Rights Act 1998 concerning judicial acts. It noted the route identified by section 9 and the restriction in CPR Part 7.11 that a claim under section 71 was to be brought in the High Court. The practical course was to adjourn those claims generally.

The committal orders were set aside. The defendant was ordered to pay Dr Pelling’s costs, summarily assessed at £250, to be set against the judgment debt.

• Court of Appeal (Civil Division) In [2005] EWCA Civ 384, the appeal was allowed and both suspended committal orders were set aside.
• High Court, Queen’s Bench Division, Administrative Court Beatson J made the first suspended committal order on 28 July 2004. Royce J made the second order on 10 November 2004 after discharging the bench warrant arising from the first order.