Hanson & Ors v Carlino & Anor

The court has an inherent power, supplemental to its other powers, to issue a bench warrant to secure compliance with its orders. The power is not confined to cases involving contempt or an existing breach. It may be exercised where necessary to secure attendance at a future hearing or to obtain information which the respondent can provide. Because a bench warrant temporarily deprives a person of liberty, it is an extreme remedy and must be used only where necessary. The court may issue the warrant but postpone its execution where immediate arrest would be disproportionate, allowing a final opportunity for credible voluntary compliance.

The claimants sought a bench warrant against the first defendant in proceedings concerning alleged misappropriation of investment funds through property-development companies. Earlier orders required the defendant to provide information and attend court on 3 May 2019 for cross-examination. The claimants relied on repeated non-compliance, non-engagement and statements which were found to be untrue. The issue was whether the court should issue a bench warrant despite there having been no finding of contempt, and, if so, when it should be executed.

1. Power to issue a warrant. The court accepted the principles drawn from Zakharov v White, Re B, Westwood v Knight, DS Rendite Funds v Mehrotra, Lexi Holdings v Luqman and Law Society v McPhail. The court has an inherent power, supplemental to its other powers, to issue a bench warrant and arrest an individual to secure compliance with a court order. A finding of contempt or an existing breach is not required.
2. The power may be used to secure attendance at a later hearing where voluntary attendance is unlikely, or to secure provision of information which the respondent can provide. The purpose of the warrant is exhausted when the respondent is brought before the court, although detention may then be ordered for the stated purposes.
3. The power involves temporary deprivation of liberty and is therefore exercisable only where necessary. The defendant’s conduct gave the court no confidence that he would attend the cross-examination voluntarily. A warrant was consequently justified.
4. Immediate execution, however, risked causing unnecessary detention before the hearing. The court ordered that the warrant be issued but not executed until the following day, giving the defendant a final opportunity to demonstrate credibly that he would attend. The order was made to secure attendance at the hearing on 3 May 2019.