Edward Avery-Gee v Lesley Ann Coppen & Anor

A party cannot add a penal notice to a court order without the court’s authority. Under the current Civil Procedure Rules 1998, a contempt application must confirm that the allegedly breached order included a penal notice. That wording treats the notice as part of the order, whose content is determined by the court rather than by the parties. A party wishing to add a notice must apply to vary the order. The judgment leaves open whether absence of a penal notice defeats committal proceedings or is a waivable procedural defect. An order remains binding without such a notice.

The claimant, trustee in bankruptcy of Lawrence Coppen, obtained an order requiring Lesley Ann Coppen or another director of Taray Brokering Ltd to rectify the company’s register. The order contained no penal notice. After non-compliance, the claimant served a further copy with a penal notice added and applied to commit Ms Coppen for contempt. The committal application was compromised and withdrawn. The court nevertheless heard submissions on whether a party could add a penal notice without a direction from the court, particularly in light of earlier authorities under the former procedural rules.

1. Current procedural rules. CPR Part 81 was substantially revised with effect from 1 October 2020. CPR 81.4(2)(e) requires a contempt application to confirm that the allegedly breached order included a penal notice. The current rule therefore contemplates that the notice forms part of the order itself.
2. Authority over the order. A court order is the document authorised by the court, not the parties’ interpretation of what the court ordered. The structure of CPR 40, including the slip rule, confirms that the parties cannot unilaterally alter its content. The court, rather than a litigant, determines whether a penal notice is included.
3. Earlier authorities. The reasoning in Anglo-Eastern Trust v Kermanshahchi and Deery v Deery depended on a penal notice being appended to a copy served under the former rules. That reasoning does not govern the current CPR Part 81 regime. The judge considered it arguable that Kermanshahchi was wrongly decided, but found it unnecessary to decide that point. CH v CT was confined to the Family Procedure Rules and the Children Act 1989 context.
4. Conclusion and limits. A party is not entitled to add a penal notice of its own motion and must apply to the court to vary the order. The judgment did not decide whether an order without a penal notice cannot be enforced by committal or whether that defect may be waived. The order remains binding, and the enforcing party may warn that breach may have penal consequences.