Islamic Investment Company of the Gulf (Bahamas) Ltd v Symphony Gems NV & Ors

A suspended committal order against a judgment debtor who fails to attend an examination is not a matter of form. The court must be satisfied to the criminal standard that the debtor’s contempt was contumacious and sufficiently serious to justify committal.

The discretion under rule 71.8 of the Civil Procedure Rules 1998 must be exercised cautiously. Evidence suggesting that attendance was prevented by illness, detention or foreign travel restrictions may make immediate committal inappropriate. The court may instead warn the debtor of the likely consequences of failing to attend a further appointment.

A judgment creditor had obtained summary judgment for more than US$10 million and secured an order requiring the judgment debtor to attend court for examination about his means. Several examination appointments were adjourned for service difficulties, detention abroad, injury and restrictions imposed by an Indian court.

The debtor failed to attend the examination fixed for 31 January 2008 because he was then required to be in India. Bean J made a suspended order committing him to prison for 28 days unless he attended a further examination and complied with associated requirements. By the appeal hearing, the debtor had complied and the suspended order was due to be discharged automatically.

The central issue was whether Bean J could properly be satisfied to the criminal standard that the debtor’s admitted contempt was contumacious and justified a committal order.

1. Appeal allowed unanimously. Bean J was not entitled to make the suspended committal order on the material before him. The order was set aside, although compliance with its conditions meant that it would in any event have been discharged.

2. Under rule 71.8 of the Civil Procedure Rules 1998, a judge has a discretion whether to make a committal order after a person fails to attend an examination ordered under Part 71. The court had to be satisfied to the criminal standard not merely that the debtor was in contempt, which was admitted, but that his contempt was contumacious and sufficiently serious to make committal just.

3. The evidence before Bean J indicated that the Indian court had permitted the debtor to remain outside India only until 31 January. That information required careful consideration before any committal order was made. The earlier adjournments had also been granted for reasons accepted by the English court, including service difficulties, imprisonment in Belgium, injury and restrictions on departure from India. Those circumstances did not establish contumacious conduct to the required standard.

4. The apparently summary procedure under rule 71.8, and the availability of a standard form, did not make suspended committal routine. A suspended order still commits a person to imprisonment. A judge must therefore act cautiously where medical evidence, legal evidence or foreign travel restrictions may explain non-attendance. In an appropriate case, the court may warn that failure to attend the next appointment is likely to result in committal instead of making an immediate suspended order.

5. Even on the fuller evidence available on appeal, shortcomings in the debtor’s candour and delay did not prove contumacious contempt beyond the criminal standard. Rix LJ gave the judgment. Tuckey LJ and Sir Robin Auld agreed.

• Court of Appeal (Civil Division): The appeal was allowed unanimously and Bean J’s suspended committal order was set aside: [2008] EWCA Civ 389.

• High Court, Queen’s Bench Division, Commercial Court: Bean J made a suspended order committing the judgment debtor to imprisonment for 28 days unless he attended a re-fixed examination and complied with the associated requirements. No citation is stated.