Edward Avery-Gee v Lesley Ann Coppen & Anor

The Trustee in Bankruptcy brought an application to commit for non-compliance with a court order made in proceedings under section 125 of the Companies Act 2006 to rectify the register of members of a company. The discrete point decided was procedural: whether a party may, of its own motion, add a penal notice to a copy of a court order where the court itself did not direct that a penal notice be attached. The court analysed the redrafted Civil Procedure Rules, in particular CPR Part 81 and CPR 81.4, and concluded that the current wording contemplates the penal notice as part of the order and therefore a party is not at liberty to append a penal notice without the court's direction. The judge observed that earlier authorities (notably Park J in Kermanshahchi and Horner J in Deery) and some practitioner texts took a contrary view under earlier rules, but that those authorities derive from the previous form of the rules and are not consistent with the present CPR. The judge expressly left open the separate question whether omission of a penal notice is fatal to a committal application, noting existing authority and the White Book guidance that the defect may be waived where no injustice is caused.

Background and parties: The claimant, Edward Avery-Gee, as Trustee in Bankruptcy of Lawrence Coppen, issued a Part 8 claim seeking rectification of the register of members of Taray Brokering Limited under section 125 of the Companies Act 2006. A deputy district judge made an order on 22 September 2022 requiring rectification; that order did not contain a penal notice. The first defendant, Lesley Ann Coppen, failed to comply.

Procedural history: The claimant re-served a copy of the order with a prominent penal notice attached to the front and, when there was still no compliance, applied for the defendant's committal for contempt. The committal application was listed before His Honour Judge Pearce on 14 November 2022 but was withdrawn by agreement of the parties. The judgment addresses the legal issue which the court raised and on which counsel made submissions: whether a party may add a penal notice to a copy of an order without the court's direction.

Issues framed: (i) The proper construction of the Civil Procedure Rules (in particular CPR Part 81 and CPR 81.4) following the 2020 amendments and whether they permit a party to add a penal notice to a copy of an order; (ii) the relevance of earlier authorities which suggested that a penal notice could be added to a served copy; and (iii) whether family jurisdiction authority undermines the claimant's position.

Decision and reasoning: The court noted the change in CPR Part 81 brought in by the Civil Procedure Amendment (No. 3) Rules 2020. The new CPR 81.4 requires a committal application to confirm that the order 'included a penal notice' and defines a penal notice as a prominent notice on the front of an order warning of contempt and possible penalties. The judge concluded that this wording contemplates the penal notice as part of the order itself and that the content of a court order is for the court to authorise. Accordingly, a party may not of its own motion add a penal notice to an order; an application to the court is required to vary the order to include one. The judgment considered earlier authorities (Anglo Eastern Trust v Kermanshahchi and Deery v Deery) that had allowed a penal notice to be appended to a copy under earlier rules but found that those decisions are inconsistent with the current CPR and may be wrongly decided in the present context. The judge further considered and rejected the applicability of CH v CT (a family jurisdiction case) to the CPR context. The court did not decide whether omission of a penal notice is fatal to a committal application, reiterating the existing approach that the defect can be waived where no injustice is caused, consistent with the White Book guidance.

The committal application was withdrawn by the parties. The court held that, under the current Civil Procedure Rules (CPR Part 81 as amended in 2020), a penal notice is properly part of the court's order and a party is not entitled to add a penal notice to a copy of an order of its own motion; an application to the court is required to vary the order to include a penal notice. The court left open the separate issue whether the absence of a penal notice is fatal to a committal application, noting established guidance that the defect may be waived where no injustice results.