Samuel Westrop v Mohamed Ali Harrath

A suspended committal order under CPR Part 71 cannot lawfully be made unless the mandatory procedural safeguards have been satisfied. The judgment debtor must ordinarily receive personal service of the attendance order, and the judgment creditor must file an affidavit proving how and when service occurred. These requirements ensure that an intentional failure to attend can properly be found to the criminal standard.

The power to commit is discretionary and must not be exercised routinely. A suspended committal order made without a hearing should identify the material considered, state the right to apply to set it aside, vary or stay it, and notify the debtor of the right to legal representation and potentially available legal aid.

The respondent had obtained a substantial libel judgment against the appellant in 2017. Seeking information to enforce that judgment, he obtained two orders under Civil Procedure Rules Part 71 requiring the appellant to attend for examination.

The orders were sent by post to addresses associated with the appellant, but neither was personally served and no affidavit of service was filed. After the appellant failed to attend, Lane J made a suspended committal order under CPR r.71.8. The appellant appealed after the order was activated and an arrest warrant issued.

The central issue was whether non-compliance with the service and proof requirements deprived the judge of power to make the suspended committal order, and whether that order also contained material procedural defects.

1. Appeal allowed unanimously. Coulson LJ, with whom Moylan and Lewison LJJ agreed, held that the suspended committal order of 11 August 2023 was unlawful and had to be set aside.

2. CPR r.71.3 ordinarily requires personal service of an order requiring a judgment debtor to attend for examination. Service by another method requires an order made when the attendance order is issued; it cannot be retrospectively inferred from the court having later proceeded on the papers. Personal service was a substantive safeguard because non-attendance could lead to imprisonment.

3. CPR r.71.5 required the judgment creditor to file an affidavit from the person who served the order. Certificates showing that documents had been posted to several possible addresses could not replace that mandatory proof. Since there had been neither personal service nor the required affidavit, the condition in CPR r.71.8(2) for a committal order was unmet.

4. Those defects also meant that the judge could not properly find beyond reasonable doubt that the appellant had intentionally failed to attend. The court therefore had no power to make the suspended committal order. The court reiterated the caution expressed in Islamic Investment Company of the Gulf (Bahamas) Ltd v Symphony Gems NV [2008] EWCA Civ 389 and Broomleigh Housing Association Ltd v Emeka Okonkwo [2010] EWCA Civ 1113: committal must not be a routine response to non-attendance.

5. The remaining points were addressed for completeness. A r.71.8 order may be made administratively and without a public hearing, but an order made without hearing the parties must contain the CPR r.3.3(5) notice of the right to apply to set it aside, vary or stay it. It should also list the documents considered and notify the debtor of the right to legal representation and to apply for available legal aid at the return hearing.

6. The court did not determine whether Part 71 has extra-territorial effect. The appellant was ordered to give formal notice of any change of address under CPR r.6.24.

• Court of Appeal (Civil Division): The appeal was allowed in [2023] EWCA Civ 1566. The suspended committal order was set aside.
• High Court of Justice, King’s Bench Division (Lane J): On 11 August 2023, a suspended committal order was made under Civil Procedure Rules r.71.8 after the appellant did not attend examination hearings.