Hammoud v Al Zawawi

In committal proceedings, the court may waive procedural defects where justice permits, but relief is not automatic. The central question is whether waiver would cause injustice to the respondent, particularly where liberty is at stake. The court must consider the explanation for the default, whether it was intentional, promptness, compliance with other rules, the interests of justice, responsibility for the failure, the effect on the hearing timetable, and the consequences for each party. Failure to serve evidence proving an alleged breach is fundamental. Where the omission is unexplained and admitting evidence would require an adjournment or expose the respondent to imprisonment without proper notice, the defect should not be waived.

The applicant sought the committal of the respondent for alleged breaches of three High Court orders requiring financial disclosure. At the hearing, it became apparent that the evidence served did not establish the alleged breaches of two later orders.

The applicant applied under the court’s general power to waive the failure to comply with FPR 37.10 and to permit reliance on further evidence under FPR 37.27(1). The respondent was absent and unrepresented. The issue was whether it was just to waive the procedural defects and admit evidence midway through the committal hearing.

1. Discretion to waive defects. The court retained a power to waive non-compliance with the committal procedure where it was just to do so. The decisive question was whether waiver would cause injustice to the respondent. The court considered the factors identified in FPR 4.6, together with the overriding objective.
2. Liberty and fair process. Committal proceedings require particularly careful compliance with procedural rules because imprisonment may result. The failure to serve evidence proving a breach was a fundamental failure, not a minor technical defect. The respondent was entitled to a fair hearing and should not face committal on evidence served only during the hearing.
3. Application of the factors. The failure was an omission rather than an intentional breach, but there was no good explanation for it. The evidence plainly failed to address two of the alleged breaches. Admission of further evidence would have required an adjournment, which was not practicable because of the imminent final hearing. It would also have increased the respondent’s potential exposure from one count to three.
4. Disposition. The court refused to waive the failures under FPR 37.10 and FPR 37.27(1). It refused to admit the further evidence. The applicant could not pursue the alleged breaches of the orders dated 24 July and 19 December.