Kazakhstan Kagazy Plc & Ors v Zhunus & Ors

On an application for committal under CPR 71.8, the court must establish that the judgment debtor was served with the order, intentionally failed to attend, and that the breach had an additional obstinate or obstructive dimension. The criminal standard of proof applies.

The court may assess the debtor’s explanation against his credibility, contemporaneous medical evidence, expert evidence, failure to provide updates, refusal or failure to engage with an independent medical examination, and the surrounding circumstances. Where the test is met, a suspended committal order may be made.

The claimants applied for a suspended committal order under CPR 71.8(2) against the second defendant, a judgment debtor who had failed to attend court for oral examination under CPR 71.2.

The defendant was outside the jurisdiction and did not attend the application hearing. The court considered service, jurisdiction, the criminal standard of proof, and whether his medical explanation established that the failure to attend was not sufficiently culpable to justify committal.

1. The application proceeded in the defendant’s absence. Service through his Cypriot lawyers, direct email notification and notification to solicitors acting for his wife established that he knew of the hearing. Because the committal was suspended, he would have an opportunity to challenge the order before enforcement, so his Article 6 rights were not infringed.
2. The court had jurisdiction over a personal judgment debtor who was outside the jurisdiction. A committal application incidental to an order under CPR 71 did not require permission to serve the application out of the jurisdiction.
3. The criminal standard of proof applied. The court had to determine whether the order had been served, whether the failure to attend was intentional, and whether the circumstances disclosed the additional obstinate or obstructive dimension required for a suspended committal order.
4. The failure to attend was intentional. The defendant had deliberately decided not to attend. His medical explanation could not be accepted at face value because of adverse credibility findings in the underlying proceedings. The medical documents did not support the full extent of the assertions made in his witness statement, while the expert evidence did not establish that attendance or travel was medically impossible once his blood pressure was controlled.
5. The court was entitled to consider the defendant’s failure to provide updated medical evidence, his non-engagement with a proposed independent examination, the timing and circumstances of his hospitalisation and the surrounding conduct. Taken together, those factors proved to the criminal standard both intentional non-attendance and an obstructive dimension.
6. A committal order for 14 days was therefore made for failure to attend court, suspended on the condition that the defendant attend for cross-examination on a date fixed in consultation with the claimants. Costs of £27,507.55 were awarded on the indemnity basis under CPR 44.3.