Deutsche Bank AG v Vik & Anor

An application to commit a person for contempt of a valid order may be an ordinary and necessary incident of that order. Where the court had jurisdiction to make the order while the person was within the jurisdiction, permission to serve the committal application out of the jurisdiction is not required merely because the person later leaves.

Under Article 24(5) of the (Recast) Brussels Regulation, exclusive jurisdiction in proceedings concerned with enforcement of judgments applies regardless of the parties’ domicile. Alternative service of a committal application is exceptional, but may be ordered where special circumstances provide a sufficient basis for believing that personal service will be avoided.

Deutsche Bank AG sought to serve an application for the committal of Mr Alexander Vik for alleged contempt of a CPR Part 71 order requiring him to provide documents and attend court for examination concerning a judgment debtor’s means.

Teare J had previously held that the application could proceed under CPR Part 81, but that permission to serve out was unavailable because there was no applicable jurisdictional gateway. This judgment considered whether permission was nevertheless unnecessary because the committal application was incidental to the Part 71 order, because Mr Vik had submitted to the jurisdiction, or because of Article 24(5) of the Recast Brussels Regulation. The court also considered alternative service.

1. Permission to serve out. Jurisdiction established over a person in respect of a claim or order includes jurisdiction over matters incidental to it. A court order must carry the means necessary for its enforcement. Committal is one such means. Accordingly, a committal application alleging contempt of a valid Part 71 order was incidental to that order, even though it constituted “new” proceedings for the purposes of Dar Al Arkan Real Estate Development Co v Refai [2015] 1 WLR 135.
2. The territorial limits of jurisdiction were not exceeded. Mr Vik had been within the jurisdiction when the Part 71 order was made. The later fact that he was outside the jurisdiction did not require DB to establish jurisdiction again. Marketmaker Technology Ltd v CMC Group plc [2008] EWHC 1556 (QB) was materially different on its facts, but did not preclude that conclusion.
3. Mr Vik had not submitted to the jurisdiction by complying with the order and attending examination. His conduct was better understood as bowing to the inevitable after his jurisdictional challenge failed. The test was whether his conduct was inconsistent with maintaining the challenge.
4. Alternatively, Article 24(5) of the (Recast) Brussels Regulation applied regardless of domicile. A Part 71 order was not merely an interlocutory order for disclosure or evidence; it was made after judgment to obtain information necessary for enforcement. The reasoning in Dar Al Arkan concerning Choudhary v Bhattar [2010] 2 All ER 1031 was compelling, and the amended wording of Article 24(5) meant that Mr Vik’s domicile in Monaco was irrelevant.
5. Alternative service was exceptional under Cecil v Bayat [2011] 1 WLR 3086, but special circumstances existed. Mr Vik had failed to provide a date and place for personal service, against a background of conduct making avoidance likely. Service by email and post on his solicitors was therefore ordered.

Permission to serve out was unnecessary. The committal application could be served by alternative means on Mr Vik’s solicitors.