Kristian Siem & Ors v Lars Windhorst

Civil Procedure Rules 1998, Part 71 provides a summary contempt route only for non-compliance with the specific obligations imposed by rule 71.2(6): attending court, producing documents at court when attending, and answering questions on oath. An order requiring advance disclosure before a Part 71 hearing is a separate order and does not engage rule 71.8. Its breach may instead be enforced under Part 81. The court should not impose committal consequences through an implicit variation of the express Part 71 procedure.

The claimants obtained a substantial default judgment against the defendant, which remained unsatisfied. In connection with Part 71 hearings concerning enforcement, the court ordered the defendant to provide specified documents in advance of the hearings. The defendant failed to comply. The claimants applied under rule 71.8 for committal for contempt.

The issue was whether orders requiring documents to be produced before, rather than at, the Part 71 hearing were orders made under rule 71.2, so that rule 71.8 was engaged. The court also considered the appropriate procedural route if rule 71.8 did not apply.

1. Rule 71.8 not engaged. The application for committal under rule 71.8 was not available in respect of the defendant’s failure to comply with the Bard and Thornett Orders.
2. Construction of Part 71. Part 71 is concerned with requiring a judgment debtor to attend court to provide information. Rule 71.2(6) requires the debtor to attend court, to produce documents in his control at court when he attends, and to answer questions on oath. Rule 71.8 tracks those three obligations: failure to attend, refusal to take the oath or answer questions, and other failure to comply with the rule 71.2 order.
3. Advance disclosure. An order requiring documents to be disclosed before the hearing is not an order within rule 71.2(6). The mandatory Form N316 procedure does not contemplate advance disclosure. Where a separate application, such as Form N244(CC), is used for that relief, the resulting disclosure order is distinct from the Part 71.2 order.
4. The court rejected the submission that advance disclosure could be treated as an abridgment of time under rule 3.1(2)(a). That would contradict the wording and structure of rule 71.2 and expose a debtor to summary committal through an implicit variation of the prescribed obligations.
5. Other enforcement route. The court distinguished Farrer & Co LLP v Meyer because the documents there were ordered after attendance at a Part 71 hearing and were consequential upon that hearing. The present orders required production before attendance. Their breach remained serious and could be enforced under Part 81.
6. The appropriate way forward was to make a further Part 71 order requiring the defendant to attend a hearing. Issue 2 did not arise.