COMMITTAL APPLICATION REFUSED BECAUSE OF LONGSTANDING DEFECTS IN COURT FORM

In Re: Dad Application to commit Muhammad Nawaz Chaudry to prison [2015] EWHC 2655 (Fam) Mr Justice Holman refused an application to commit a respondent to prison on the grounds that the standard form of collection order did not comply with the rules and did not have a penal notice attached. It shows that there has been a longstanding and routine practice of failing to comply with the rules. This is a family law case, however there are important lessons for anyone likely to be involved in committal proceedings.

“if there is a failure to comply with an express requirement of rules of court, it is of course no justification to say that the failure to comply has been longstanding and routine.”

THE CASE

The applicant was attempting to get the respondent committed to prison on the grounds that he had failed to comply with a collection order and disclose the address of a father and child, the child have been abducted.

KEY POINTS

• The rules expressly require that a penal notice be placed prominently on any order of the court where there is a potential for contempt.
• The form habitually used in these cases did not comply with the rules.
• The fact that the form had been used for a considerable period and routinely did not stop it being invalid.
• Given this fundamental defect the application to commit was struck out.

THE RULES AND THE DEFECT IN THE COLLECTION ORDER

The judge considered an argument that the collection order did not comply with the rules.

1. However, before that stage is reached Mr Dermot Main-Thompson, who appears today on behalf of Mr Chaudhry, has in effect taken certain preliminary points with regard to procedural deficiencies in this case. I should mention that appropriately, but generously, Mr Main-Thompson made very clear today that all or most of these points – which are made in his most excellent position statement and skeleton argument, dated 15^th September 2015 – are points which have been generated by the input and researches of his instructing solicitor, Ms Maria Wright. She is a solicitor who is employed by Freemans, who act on behalf of Mr Chaudhry, and who herself has conduct of this matter. There are within that position statement and skeleton argument a number of important points with regard to the lawfulness of the Collection Order in the form in which it was made in this case. There is, in my view, however, one knockout point with which I will deal in a moment. Since I regard that point, even standing on its own, as completely decisive in this case, anything I were to say in relation to the other points would be what lawyers called obiter. It happens that there is very currently a thorough – going review of the form and language of collection orders. In my view, it is undesirable that I should express in judgment any view or comment which would be obiter about these other points. Rather, I have already arranged, with the permission of Mr Main-Thompson, that a copy of his position statement and skeleton argument be provided to those who are undertaking that review so that those points can be considered.

2. I turn, therefore, to what, in my view, is the decisive point for the purposes of the present application and the one upon which I base my decision and judgment today. The Family Procedure Rules 2010 (as amended) make provision in relation to applications for committal. So far as is material to the present case, the first rule in point is rule 37.4, which provides as follows:

“37.4 Enforcement of Judgment, order or undertaking to do or abstain from doing an act

(1) If a person –

(a) required by a judgment or order to do an act does not do it within the time fixed by the judgment or order; or

(b) disobeys a judgment or order not to do an act,

then, subject to…the provisions of these rules, the judgment or order may be enforced under the court’s powers by an order for committal”

Pausing there, it is clear from the language of that rule that the power to commit is itself subject to the provisions of those rules. The next relevant rule is rule 37.9. That provides as follows:

“37.9 Requirement for a penal notice on judgments and orders

(1) Subject to paragraph (2) [which is not in point in the present case], a judgment or order to do or not to do an act may not be enforced under rule 37.4 unless there is prominently displayed, on the front of the copy of the judgment or order served in accordance with this Chapter, a warning to the person required to do or not do the act in question that disobedience to the order would be a contempt of court punishable by imprisonment, a fine or sequestration of assets.”

1. Pausing there, I emphasise from that rule the words “prominently displayed” and “on the front of the copy of the judgment or order served”. I stress at once that the collection order made in this case was, and is, in the absolutely standard form that has been in regular use by judges of the High Court for many years. The actual order made in the present case shows in the top right hand corner that it is in a form that was revised in May 2011. I say at once that I personally have made a considerable number of collection or similar orders, such as location and passport orders, in these standard forms without appreciating until today that they all suffer the defect that there is no penal notice prominently displayed on the front of them. But if there is a failure to comply with an express requirement of rules of court, it is of course no justification to say that the failure to comply has been longstanding and routine.

2. The standard form of collection order and the one used in this case extends altogether to six sheets of paper, although the third page is largely blank. There is nothing remotely in the nature of a penal notice at all on the first four sheets of the order. The fifth sheet is headed with the following words in capital letters: “Important notice to the respondent and to any other person served with this order”. There are then a series of number paragraphs 1 to 5. These are headed respectively:

(1) Liability to be arrested;

(2) Liability to be committed to prison;

(3) Your rights;

(4) The Tipstaff;

(5) Interpretation.

The font or print size used on pages 5 and 6 is exactly the same as that used throughout the whole of the order and there is no particular use of bold type face on pages 5 and 6. Paragraph 2 on page 5 under the heading “Liability to be committed to prison” does contain the following words:

“Breach of any part of this order would be a contempt of court punishable by imprisonment or fine. Accordingly, whether or not the Tipstaff arrests you, you may be summoned to attend court and, if you are found to be in breach of the order, you are liable to be committed to prison or fined.”

1. In my view the use of those words in that paragraph on the fifth page of the order simply does not comply with, or satisfy at all, the requirements of rule 37.9(1). In the first place, the warning cannot be said to be “prominently displayed”. It is merely a part of several pages of somewhat indigestible text. In the second place, it most certainly does not appear, as the rule requires, “on the front of the copy of the…order”. It will be recalled that rule 37.9 is emphatic and prohibitive in its terms. Unless the penal notice is prominently displayed on the front of the copy of the order, “a judgment or order…may not be enforced…” In my view, the words “may not be enforced” where they appear in that rule do not import a discretion in the court. Rather, they are a mandatory direction to the court that it cannot and must not enforce the order by committal.”

THE DISCRETION TO IGNORE THE RULE

The rules allowed to “waive any procedural defect in the commencement or conduct of a committal application if satisfied that no injustice has been caused to the respondent by the defect.”. However he rejected the argument that no injustice had been done to the respondent.

1. Far from being satisfied that no injustice has been caused to him, I am personally quite clear that a great deal of injustice was caused to him. Rule 37.9 exists for a purpose. The purpose clearly is so that somebody in the position of Mr Chaudhry can see prominently and at once, the moment a lengthy order of this kind is given to him, what the gravity of the situation is and that he is at risk not merely of being arrested at the time, but of being committed to prison as a punishment for contempt of court.

2. In my view, therefore, this is not a situation where I can waive the procedural defect. All applications to commit require proper adherence to the requirements of any enactment and rule of court. In the present case there is a serious defect in the order upon which the application to commit is based. I simply cannot commit Mr Chaudhry to prison for any breach of the order, however egregious. In my view that has the consequence that I must indeed strike out the application as a threshold decision, and Mr Chaudhry must not be required to give any evidence or to defend himself on the substance of this application. For those reasons, the application issued on 7^th July 2015 to commit Muhammad Nawaz Chaudhry to prison for contempt of court is struck out.