Michael Ashley & Anor v Tony Michael Jimenez

Court orders carrying penal consequences must be clear, unequivocal and strictly construed. An order requiring a judgment debtor to submit to medical examination may require the debtor to perform the tests and answer questions so far as medically able. Deliberate non-participation without medical justification constitutes non-compliance.

Document-production obligations under Civil Procedure Rules 1998 Part 71 should be construed restrictively, but a clear order imposing a specified production deadline may require compliance before the examination takes place. A suspended committal order may make compliance with subsequently varied document-production requirements a condition of suspension. The court retains discretion whether to issue a bench warrant after breach.

The claimants sought enforcement of an earlier judgment for approximately £3 million, together with costs and interest, against the defendant. A Part 71 examination had not taken place after repeated adjournments and orders concerning the defendant’s litigation capacity, alleged neurological illness and alleged mental impairment.

Rajah J ordered an issues trial concerning whether the defendant had failed to submit to ordered medical examinations, whether he was medically unable to attend a Part 71 examination, and whether he had failed to comply with a document-production order, thereby breaching a suspended committal order. The court also considered whether a bench warrant should issue.

1. Medical ability and medical examination. The defendant was not medically unable to attend a Part 71 examination because of a physical impairment arising from a neurological condition. The court was not satisfied that any mental impairment rendered him medically unable to attend. The claimants’ experts were accepted; the defendant’s treating general practitioner’s evidence was given no weight because it fell outside his expertise, lacked proper foundation and was advocacy rather than objective expert assistance (paras [92]-[116]).
2. Construction of the medical order. Applying the strict approach required for penal orders, Master Brightwell’s order required the defendant to perform the tests set by the claimants’ experts and answer their questions so far as medically able. The defendant had hardly participated in one examination and had not participated in the other, without medical reason. He had therefore failed to submit to examination and was barred from relying on medical evidence on the issue of his ability to attend court (paras [117]-[126]).
3. Document production. The Part 71 order was construed restrictively. The defendant would not breach it merely by failing to produce documents outside his possession which he had tried, unsuccessfully, to obtain. However, Master Marsh’s order clearly required production by 14 December 2022, independently of the date of any later examination. The defendant had made no adequate effort to obtain the required bank statements, tax records or accounts and had failed to comply (paras [128]-[147]).
4. Suspended committal and warrant. The suspended committal order was construed as making compliance with the Part 71 document-production requirements, as varied from time to time, a condition of suspension. The defendant had therefore breached it. The court retained a discretion whether to issue a bench warrant. Weighing concerns about the order’s wording and the absence of an examination against the prolonged non-compliance, the importance of obeying penal orders and the unsatisfied judgment, the court issued a bench warrant (paras [148]-[176]). Costs and consequential matters were reserved.