Farrer & Co LLP v Julie Marie Meyer

The Court of Appeal dismissed the appellant's challenge to findings of contempt and to a suspended committal order imposed by Kerr J following persistent non‑compliance with an order for disclosure made under CPR Part 71 and PD 71. The principal legal issues were whether the judge had jurisdiction to make a committal order under CPR 71.8 and whether defects in the procedural steps under CPR Part 71 and PD 71 (service, form of orders, certificates and affidavits) invalidated the committal. The court held that (i) the procedures of Part 71 had been followed in substance, (ii) any technical non‑compliance was waived because no timely objection had been taken below and the points were in large part new, and (iii) the judge was entitled to exercise his jurisdiction to make a suspended custodial order because the contemnor had deliberately and persistently breached a mandatory order. The judge’s assessment of sentence was within the range reasonably open to him.

Background and nature of the claim:

• The claimant, a firm of solicitors, sued the defendant for unpaid fees of 187,227 and obtained default judgment on 10 December 2019. The claim form had been served pursuant to section 1140 of the Companies Act 2006 at two registered addresses.
• The claimant sought enforcement and an examination of the defendants means under CPR Part 71; an order for attendance was made requiring production of documents and answers on oath. The defendant repeatedly failed to comply with disclosure directions subsequently made by Heather Williams J.

Procedural history and issues:

• The defendant applied (and later sought to revive) to set aside the default judgment; that application was dismissed. After delays and repeated non‑compliance with disclosure orders, the matter was referred to a High Court judge under CPR 71.8 and Kerr J found the defendant in contempt and sentenced her to a suspended custodial term of six months, with a direction to attend in person.
• On appeal the defendant argued principally that Kerr J had no jurisdiction to find contempt or make a suspended committal because various requirements of CPR Part 71 and PD 71 had not been complied with (alleged defects in service, form of orders, certificates, and affidavits), and that the sentence was excessive.

Issues framed by the court:

1. Whether the judge had jurisdiction under CPR 71.8 to find contempt and make a suspended committal order given the procedural history of adjournments and subsequent orders;
2. Whether alleged procedural non‑compliance with CPR Part 71 and PD 71 (personal service, certificates under PD71, forms and affidavits) invalidated the contempt finding;
3. Whether the custodial sentence was excessive or wrong in principle.

Courts reasoning and conclusion:

• The court held that most of the procedural complaints were raised for the first time on appeal and were therefore waived because no objection had been taken below. The single point actually raised below (that the January 2022 hearing was not a Part 71 hearing) was without merit: the proceedings derived from the original CPR 71 order and the steps taken were within that procedure.
• On the merits the court found no substance in the procedural complaints: personal service of the original CPR 71 order had been effected, subsequent directions following adjournments did not always require personal service, the affidavit of service filed satisfied CPR 71.5, paragraph 6 of PD71 had been satisfied in substance by the Knowles J order, and the order of Heather Williams J (the order with which the defendant failed to comply) plainly carried a penal notice.
• As to sentence, the judge had considered mitigation and alternatives and was entitled to conclude that only a custodial sentence suspended on terms would coerce compliance. The suspended six‑month sentence fell within the range reasonably open to the judge.

Appeal dismissed. The Court of Appeal held that Kerr J had jurisdiction under CPR 71.8 to find the defendant in contempt for persistent non‑compliance with the order of Heather Williams J and to make a suspended committal order. Most procedural complaints were raised for the first time on appeal and were waived; the remaining points were without merit. The sentence was within the permissible range because the contempt was deliberate and continuing and less onerous measures were unlikely to secure compliance.

Appeal from Mr Justice Kerr, High Court of Justice, Queen's Bench Division [2022] EWHC 362 (QB). Permission to appeal on multiple grounds was refused by Coulson LJ ([2022] EWCA Civ 585); the defendant was entitled to appeal as of right on the contempt and sentence under section 13 of the Administration of Justice Act 1960. This appeal dismissed the remaining challenge to the contempt finding and the suspended committal.