Tankaria & Ors v Morgan & Ors

In committal proceedings, contempt must be proved beyond reasonable doubt and the respondent is answerable only for the breaches charged in the application notice. Later conduct may assist in assessing mitigation, purging contempt, or the reliability of evidence, but it cannot itself enlarge the charges. A failure to comply with a mandatory injunction does not establish contempt without proof of an intentional breach. Strict requirements governing endorsement and personal service of the order must also be satisfied. Where those requirements are not met, the court will not ordinarily dispense with personal service merely because the applicant sought to proceed urgently.

The claimants sought accounts, money, securities, conveyancing files and related documents from solicitors who had acted in property transactions. An order required the defendants to deliver specified documents forthwith and to serve finalised cash statements by a specified date. The claimants then issued an application to commit the first defendant for contempt, alleging non-compliance.

At the committal hearing, the court considered whether the alleged breaches had been proved as at the date of the application notice, whether the first defendant had intentionally failed to comply, and whether the order, endorsed with a penal notice, had been personally served.

1. The application was dismissed. The claimants had not proved contempt beyond reasonable doubt.
2. Committal proceedings are quasi-criminal. The applicant must prove the breach and comply with strict formal requirements concerning the order, the penal notice, service and the application notice. The charges are those specified in the application notice. Conduct after that notice may be relevant to penalty, mitigation, purging contempt or the accuracy of evidence, but cannot itself constitute additional charges. A continuing default may be addressed by amendment or by a further application notice.
3. Mere failure to comply with a mandatory injunction does not prove contempt. The applicant must establish an intentional breach. The first defendant’s evidence that illness, limited resources, extensive photocopying requirements and the organisation of the files caused delay was not materially challenged. Although her conduct attracted strong criticism, the court could not conclude beyond reasonable doubt that she intended not to comply with the order by the relevant date.
4. The application also failed because the order had not been personally served. It had been left at the defendant’s home after unsuccessful attempts to serve her personally. No further attempt was made to locate her, and no application for substituted or alternative service was sought. Even assuming a discretion existed under RSC Order 45 Rule 7 to dispense with personal service in relation to a mandatory injunction, the circumstances did not justify its exercise. The applicant’s haste had caused it to overlook the procedural requirements.
5. The allegations of contempt were therefore not made out, although the court criticised the defendant’s cavalier approach to compliance and the proceedings.