Broomleigh Housing Association Ltd v Okonkwo

A suspended committal order under Part 71 is an order for imprisonment and must not be made routinely to secure a judgment debtor’s future attendance for questioning. The judge must exercise the discretion under Rule 71.8 by considering the circumstances of the breach.

The order may be made only where the evidence establishes to the criminal standard that the debtor intentionally failed to attend or refused to answer questions, and where committal is appropriate. Brief written reasons must be given. If those conditions are not established, the judge may investigate further or make another order for attendance instead.

A housing association obtained costs orders against its tenant and sought information about his means for enforcement purposes. Following a prolonged series of orders and difficulties concerning service and attendance, a circuit judge made two suspended orders committing the tenant to prison for seven days under Rule 71.8.

The tenant ultimately attended court and answered the questions, after which the committal orders were discharged. The Court of Appeal nevertheless heard his appeals because the orders might affect his intended legal career and the case raised an important question about the routine use of suspended committal orders. The central issue was when a judge may make such an order following non-compliance with an order to attend for questioning.

Appeals allowed unanimously. Moore-Bick and Wilson LJJ delivered the joint judgment. Carnwath LJ agreed with their reasons and guidance.

1. Rule 71.8 confers a discretion to make a committal order; it does not require committal whenever a judgment debtor has failed to comply with an order for attendance. A suspended committal order remains an order for imprisonment and is comparable to a suspended sentence. Its severity is not reduced by the likelihood that it will never be activated. It must not be used merely as a convenient mechanism for fixing an effective adjourned hearing.

2. Following Islamic Investment Company of the Gulf (Bahamas) Ltd v Symphony Gems NV [2008] EWCA Civ 389, a judge may make a suspended committal order only after considering the nature and circumstances of the contempt. The judge must be satisfied to the criminal standard that the debtor’s failure to attend, or refusal to take the oath or answer questions, was intentional. The judge must also decide that committal is appropriate in all the circumstances. Evidence of an obstinate or obstructive dimension is relevant, although the language of “contumacy” or “contumely” is unnecessary.

3. The judge has several available courses. If the required findings can be made, a suspended committal order may be imposed. If they cannot yet be made, the issue may be adjourned with directions, supported by a penal notice, for attendance or affidavit evidence. Alternatively, the judge may decline committal and make a further order under Rule 71.2, possibly with a recital emphasising the consequences of future non-attendance.

4. A debtor’s rights under Article 6 are not infringed by making a suspended order without first hearing the debtor, provided the necessary findings are properly made, because the debtor can challenge the order before enforcement. The judge must nevertheless give brief written reasons for inclusion in the order served upon the debtor.

5. The first order disclosed no finding that the tenant had intentionally refused to answer questions and no sufficient indication that the discretion had been exercised. The second rested on the incorrect premise that he had failed to attend on an earlier date and appeared merely to carry forward an existing suspended order. Both orders were therefore set aside.

1. Court of Appeal (Civil Division): Allowed both appeals and set aside the two suspended committal orders: [2010] EWCA Civ 1113.
2. Croydon County Court: His Honour Judge Ellis made suspended seven-day committal orders on 30 November 2007 and 12 February 2009. The orders were later discharged after the debtor attended and answered questions.