James v James

An order requiring a person to provide information must be obeyed unless and until it is set aside. A committal order under Contempt of Court Act 1981 must specify a fixed term. Before committing an unrepresented contemnor, the court must give a proper and practical opportunity to obtain legal advice and representation. That obligation rests on the court, including taking reasonable steps to explain how legal aid may be obtained. A short period in custody will not necessarily provide a realistic opportunity to secure representation.

The parties were sisters and beneficiaries of their intestate father's estate. The appellant became administrator and received an NHS pension lump sum of £64,864, but failed to provide the account and information required by an order of the County Court. She did not attend the committal hearing on 6 July 2018 and was committed indefinitely until compliance. After her arrest, the sentencing hearing was adjourned to 13 July to allow her to obtain representation, but she remained unrepresented and was sentenced to six months' imprisonment.

She appealed against the committal and sentence, alleging procedural defects, lack of legal advice and excessive imprisonment. The Court of Appeal considered whether the contempt finding was open to challenge and whether the committal orders could properly be made and maintained in the absence of legal representation.

The Court of Appeal, in a judgment delivered by Bean LJ with which David Richards LJ agreed, allowed the appeal in part. The committal orders of 6 and 13 July 2018, and any separate renewal on 11 July, were set aside. The matter was remitted to another circuit judge to determine the committal application. The findings of contempt recorded in the order of 6 July remained binding.

1. The order of 1 June required the appellant to attend court and provide a verified account of the pension funds. It was binding unless and until set aside. The appellant's belief that the consequences might be limited to a money judgment was irrelevant. The order's allegedly short notice and the fact that it had been made without notice did not invalidate it.
2. The challenge to the contempt finding was not permitted. The application complied with Rule 81.10(3) of the Civil Procedure Rules because it was accompanied by the claimant solicitor's affidavit particularising the alleged contempt. There was no separate requirement for the process server's evidence of service to be sworn. The absence of an express recital that the standard of proof had been satisfied was immaterial where the non-compliance was beyond argument. The objections based on silence, the Convention and alleged vulnerability did not undermine the finding.
3. The order of 6 July was defective because section 14(1) of the Contempt of Court Act 1981 made a fixed term mandatory. The judge could have issued a bench warrant, but could not commit the appellant for an indefinite period.
4. Paragraph 15.6 of Practice Direction 81 imposed an obligation on the court to have regard to informing an unrepresented contemnor about criminal legal aid and to giving a proper opportunity to obtain legal advice. The obligation did not fall on the contemnor's partner. One and a half days in custody was not a realistic period in which to secure representation. The court should not impose committal, rather than merely issue a warrant for attendance, until the contemnor has had a proper opportunity to obtain representation or has expressly been given that opportunity, with an adjournment, and then deliberately failed to take reasonable steps.

If the appellant fully complied with the order, the renewed committal application might result in no further custody. If she remained defiant, the sentence would be at large. Being the primary carer of young children did not confer absolute immunity from imprisonment.

• Court of Appeal (Civil Division): The appeal from the committal and sentencing orders was allowed in part. The orders were set aside and the committal application was remitted. The contempt findings were preserved.
• Central London County Court: HHJ Gerald found the appellant in contempt on 6 July 2018 and ordered indefinite committal until compliance. On 13 July 2018 he sentenced her to six months' imprisonment after refusing a further adjournment for representation.