JONATHAN DAVID ROWLAND & Anor v KEVIN GERALD STANFORD

Under Civil Procedure Rules 1998, r 71.8(2), the court may make a suspended committal order where a judgment debtor has deliberately failed to attend an examination concerning means. The court must be satisfied to the criminal standard that the debtor was properly served with the order and that non-attendance was intentional. A debtor’s reliance on an ineffective purported discharge of the judgment debt or on conditions imposed through an alternative system of justice does not provide a reasonable excuse for non-attendance. The court should select the appropriate enforcement option having regard to all the circumstances.

The claimants sought enforcement of earlier costs orders against the defendant. Master Bowles ordered the defendant to attend court to provide information about his means and supplied documents. The defendant was personally served but did not attend the examination. The matter was referred under Civil Procedure Rules 1998, r 71.8, and directions were subsequently given for evidence. The defendant served no evidence, did not resist the committal order sought, and apologised to the court. The central issues were whether he had been properly served, whether his failure to attend was intentional, and whether a suspended committal order should be made.

1. The court was satisfied beyond reasonable doubt that the defendant had been personally served with the order requiring attendance. His statements and correspondence also demonstrated that he knew of the order and understood that non-compliance might result in contempt proceedings.
2. The failure to attend was intentional. The defendant chose not to attend and relied on a purported promissory note and a notice of conditional acceptance. The promissory note did not discharge the debt. Reliance on an alternative system of justice could not defeat the effect of orders made by the court. Neither matter supplied a reasonable excuse, and no alternative explanation was advanced.
3. Following the approach explained in Broomleigh Housing Association Limited v Okonkwo [2010] EWCA Civ 1113, the court considered the available enforcement options and concluded that a suspended committal order was appropriate under Civil Procedure Rules 1998, r 71.8(2).
4. The requirements of Civil Procedure Rules 1998, rr 71.4 and 71.5 had been complied with. In line with Ticketus LLP v Whyte [2014] EWHC 3232 (Ch), a committal period of 28 days was appropriate. The order was therefore made for committal for 28 days, suspended on the usual basis.