Farrer & Co LLP v Julie Marie Meyer

Technical objections to contempt proceedings under Part 71 of the Civil Procedure Rules should ordinarily be raised before the first-instance court. An appellant cannot generally advance them for the first time on appeal, particularly where any non-compliance caused no prejudice.

Personal service under rule 71.3 applies to the order initiating the Part 71 procedure. It does not necessarily apply to later orders within the same procedure. Following an adjournment, rule 71.7 requires effective notice in accordance with the court’s directions, rather than invariably requiring personal service.

An appellate court will interfere with a sentence for contempt only for an error of principle, reliance on immaterial matters, failure to consider material matters, or a decision outside the range reasonably open to the sentencing judge.

The claimant solicitors obtained default judgment for unpaid fees and subsequently secured an order under Part 71 of the Civil Procedure Rules requiring the defendant judgment debtor to attend court and provide information and documents concerning her means. After repeated non-compliance, Heather Williams J ordered production of specified documents. Kerr J found the defendant in contempt and imposed a suspended sentence of six months’ imprisonment: [2022] EWHC 362 (QB).

Permission to challenge the default judgment and related matters was refused. In a separate ruling, Coulson LJ held that permission was unnecessary for an appeal against the finding of contempt and sentence because section 13 of the Administration of Justice Act 1960 conferred an appeal as of right: [2022] EWCA Civ 585.

The issues were whether alleged failures to comply with Part 71 and Practice Direction 71 deprived Kerr J of jurisdiction to find contempt, and whether the suspended custodial sentence was excessive.

1. Appeal dismissed. The Court of Appeal held unanimously that Kerr J had jurisdiction to find contempt and that the suspended sentence of six months’ imprisonment was within the range reasonably open to him.

2. Technical procedural objections which were not properly raised below could not be advanced for the first time on appeal. This principle applied notwithstanding the defendant’s right of appeal under section 13 of the Administration of Justice Act 1960. Any technical non-compliance had also been waived when no objection was taken before Kerr J. The contention that Kerr J’s hearing was outside Part 71 was in any event wrong. The proceedings formed a continuous Part 71 process originating in the validly served examination order.

3. Rule 71.3 required personal service, unless otherwise ordered, of the order initiating the Part 71 procedure. It did not impose that requirement upon every subsequent order. After an adjournment, rule 71.7 permitted directions concerning notice of the new hearing. Its purpose was to ensure actual notice, and it did not invariably require personal service. The defendant had actual notice of the relevant orders and deadlines.

4. The written certificate required by paragraph 6 of Practice Direction 71 functions as a charge sheet by identifying precisely the non-compliance alleged. The order of Robin Knowles J made the breach abundantly clear, so no further certificate was required. The prescribed forms were not mandatory. The affidavit already filed satisfied rule 71.5. Robin Knowles J’s order needed no penal notice because it imposed no obligation; the operative disclosure order contained the necessary notice.

5. If procedural defects had existed, the court was prepared to proceed on the basis that they could be remedied through its case-management powers, rule 3.10 or its inherent jurisdiction. Such a power cannot override a specific rule, but nothing in Part 71 prevented its use where any deficiency was technical and caused no prejudice.

6. Applying Financial Conduct Authority v Mc Kendrick [2019] EWCA Civ 524, appellate interference with a contempt sentence is confined to an error of principle, consideration of immaterial matters, failure to consider material matters, or a decision outside the range reasonably available. Kerr J considered the asserted Swiss-law obstacle and the alternatives to imprisonment. He was entitled to find the breach deliberate, cynical and continuing, and to conclude that coercion was necessary. The six-month term was not excessive and might properly have been longer.

• Court of Appeal (Civil Division): In [2022] EWCA Civ 706, unanimously dismissed the appeal against the finding of contempt and the suspended sentence of six months’ imprisonment.
• Court of Appeal (Civil Division): In [2022] EWCA Civ 585, Coulson LJ maintained the refusal of permission on four proposed grounds but held that section 13 of the Administration of Justice Act 1960 permitted an appeal as of right against the contempt finding and sentence.
• High Court, Queen’s Bench Division: In [2022] EWHC 362 (QB), Kerr J found the defendant in contempt for non-compliance with a disclosure order and imposed a suspended sentence of six months’ imprisonment.