Court of Appeal in England sets aside suspended committal order

The English Court of Appeal in Westrop v Harrath [2023] recently set aside a suspended committal order, which was made following a judgment debtor's failure to attend a debtor questioning hearing, on the basis that it was not served personally (as required by the Civil Procedure Rules (CPR) rule 71.3) and that no affidavit of service was filed (as required by CPR rule 71.5).

The court held that these failures by the judgment creditor amounted to material non-compliance with critical elements of CPR Part 71 and, accordingly, the judge had no power to make the suspended committal order.

Content guidance

The court also provided helpful guidance on the content of suspended committal orders, including that: the judge should list, in the order, the documents he had regard to when making the order; the order should contain a statement of the judgment debtor's rights to apply to set aside, stay or vary the order, and the order should refer to the judgment debtor's right to representation and/or the right to legal aid.

Part 71 orders are an important and often effective tool in a judgment creditor's armoury of enforcement measures. The order can require a judgment debtor to attend court to answer questions as to their assets and means (and/or to provide other information). Failure to comply can constitute a contempt of court and result in the delinquent judgment debtor being sent to prison, which can be a very effective way of ensuring that a recalcitrant debtor attends court to provide the information.

Osborne Clarke comment

This case illustrates the importance of a judgment creditor complying with the rules set out in CPR 71 if it wishes to be able to invoke the court's powerful sanction of committal to prison for contempt in order to compel the judgment debtor's compliance.