COMMITTAL APPLICATIONS, PENAL NOTICES AND GOING TO PRISON

January 29, 2017 · by · in Applications, Committal proceedings

There are two lessons in the judgment of Mr Justice Cranston in Bunge S.A -v- Huaya Maritime Corporation [2017] EWHC 90 (Comm): (i) if you are applying for committal you should include a penal notice in the application; (ii) if you don’t comply with an order of the court you can go to prison.

THE CASE

The claimant had obtained a freezing injunction and ancillary disclosure order against a limited company. Mr Hua was a director of that company.  The defendant company did not comply with the order. The claimant made an application that Mr Hua be committed to prison for failure to comply.

ABSENCE OF PENAL NOTICE

The application for contempt did not contain a penal notice. The judge considered the consequences of this. The initial application was adjourned to ensure that the respondent was fully aware of the potential consequences of failing to comply.

“Omission of penal notice in application notice
    1. The application notice for the committal served on Mr Hua did not contain a penal notice. That notice is in the form of Annex 3 to the Practice Direction to Part 81.
    2. At the hearing Bunge submitted that I should waive the requirement that the application contain the penal notice. The omission to include it had not caused any injustice to Mr Hua, Bunge contended, because he had been given every opportunity to respond to the application. He had also been informed of its potential consequences and the date of the committal hearing. Bunge’s solicitors in their emails of 15 June 2016 and 15 September 2016 had quoted the penal notices in the disclosure orders, pointed out the seriousness of his failure to comply, informed him of the consequences of a committal order and of the need to produce evidence. Mr Hua’s response was to ignore the situation. If the application notice had contained the required wording, Bunge concluded, it would almost certainly have made no difference.
    3. Paragraph 13.2(4) of the Practice Direction to Part 81 of the Civil Procedure Rules (“the CPR”) provides that
“the application notice must contain a prominent notice stating the possible consequences of the court making a committal order and of the respondent not attending the hearing. A form of notice which may be used is annexed to this Practice Direction at Annex 3”.
Paragraph 16.2 of the PD provides that:
“The court may 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”.
This is the same wording as paragraph 10 of the previous Practice Direction to RSC, Order 52.
    1. In Nicolls v. Nicholls [1997] 1 WLR 314 Lord Woolf MR gave guidance on the approach to be taken by the court where there were procedural defects in a committal application under the RSC provision. At p.326-327 he said:
“1. As committal orders involve the liberty of the subject it is particularly important that the relevant rules are duly complied with…
2. As long as the contemnor had a fair trial and the order has been made on valid grounds the existence of a defect either in the application to commit or in the committal order served will not result in the order being set aside except insofar as the interests of justice require this to be done.
3. Interests of justice will not require an order to be set aside where there is no prejudice caused as a result of errors in the application to commit or in the order to commit. When necessary the order can be amended…”
  1. At the hearing I formed the view that, notwithstanding that Mr Hua was aware of the general nature of the disclosure orders and of the committal application, it would not be right to waive immediately the failure of the application notice to contain the penal notice. At that hearing I was not persuaded that there was no prejudice when there was no evidence as to Mr Hua’s facility in the English language and his access to advice on English law.
  2. Moreover, I wanted to give Mr Hua a final opportunity to take steps to meet the requirements of the orders with the knowledge that the court was actively considering his case. Consequently, I ordered that he be warned expressly along the lines of the penal notice. As I have said that was done over the weekend before the resumed hearing. At that point I was prepared to order that the requirement be waived. All that could be done had been done to warn Mr Hua of the serious consequences of non-compliance

DISPENSATION WITH ORDER FOR PERSONAL SERVICE

The judge also considered the problems arising from the fact that the respondent had not been personally served.

  1. In this case the disclosure orders were not served on Mr Hua personally because he was not a party to the arbitration claim and because Bunge did not envisage that Huaya would ignore the court’s orders. Bunge applied for dispensation with personal service on Mr Hua of the disclosure orders in relation to its contempt applications.
  2. Part 81 of the CPR deals with applications and proceedings in relation to contempt of court. If a court order is to be enforced by the contempt power, CPR 81.5 requires that it be served personally on the respondent before the end of the time fixed for compliance unless the court dispenses with service under CPR 81.8. CPR 81.8(1)(b) and 81.8(2) allow the court to dispense with service if satisfied respectively that the person has had notice of the order or if the court thinks it just to do so. The courts have taken the view that where a party knows, and persistently fails to respond, it is just to dispense with personal service. Otherwise there would be an encouragement to persistent offenders to use a technicality to defeat the purpose of the order: see White Book, paragraph 81.8.2; Alridge on Contempt, paragraphs 12-37 to 12-44.
  3. In this case I am satisfied that Mr Hua, as the person in charge of Huaya Shipping, was notified of the terms of the disclosure orders by email and courier, thereby satisfying CPR81.8(1)(b). He seemed to have acknowledged that in his conversation with the brokers, Clarksons, when he said that he was told by lawyers that so long as he kept away from the UK there was nothing that could touch him. Of course Mr Hua has made no attempt to comply with the disclosure orders. In light of this my conclusion is also that CPR81.8(2) is satisfied because it is just that personal service of the disclosure orders on Mr Hua be dispensed with.

THE ABSENCE OF THE RESPONDENTS

Absence of the respondents
    1. The respondents did not attend either hearing before me and it was necessary to consider whether to proceed in their absence. Applying the checklist of factors set out by Cobb J in Sanchez v. Oboz [2015] EWHC 235 (Admin), and by Flaux J in Navig8 Chemical Pools Inc v. Nu Tek (HK) Pvt Ltd, Sharma, Karthikeyan [2016] EWHC 1790 (Comm), I had no difficulty in concluding that the case could be heard in the respondents’ absence. As I have said both had been served with the relevant documents, including the notice of the hearing, and they had sufficient notice to enable them to prepare for the hearing. By reference to the nature and circumstances of their behaviour it was clear that they had waived their rights to be present, taking the view that the court’s orders could have no effect in Qingdao.
    2. Just as Flaux J observed in the Navig8 Chemical Pools case, it was reasonable for me to conclude that these respondents knew of and were indifferent to the consequences of the case proceeding in their absence, and had clearly taken a deliberate decision to absent themselves from the hearing. I gave a short adjournment but that did not secure any response. It seemed clear to me that a longer adjournment would not have resulted in their attendance or facilitated their representation. There was the disadvantage to them in not being able to present their accounts of events, but they had had ample opportunity and time in which to put in evidence challenging Bunge’s evidence. They have not sought to do so. Moreover, there would have been undue prejudice to Bunge in further delay. As Flaux J noted in Navig8 Chemical Pools:
“34 In circumstances where what is at issue is the efficacy of a worldwide freezing order and, in particular, its efficacy as a means of enforcing the arbitration award, the disclosure of assets by the respondent in such a case is a critical element in ensuring the efficacy of the court’s order. Any delay in the order for committal of the respondents for contempt, and therefore any delay in bringing home to the respondents the importance of complying with a court order, is obviously a matter which could cause considerable prejudice to the claimant in its attempts to enforce the award generally.”
  1. There was in my view no damage caused to the forensic process by proceeding to hear the application. Finally, to proceed with the hearing complied with the Overriding Objective in the CPR when I had reached the conclusion I did, explained in the next section of the judgment. The Overriding Objective of speedy justice and rationing judicial resources clearly pointed towards dealing with the matter in the absence of the respondents.”

 

THE RESULT

The judge found Mr Hua in contempt of court and sentenced him to 18 months imprisonment.

ANNEX 3 AND THE FORM OF PENAL NOTICE

Annex 3 can be found here . The wording is:-

IMPORTANT NOTICE

The Court has power to send you to prison, to fine you or seize your assets if it finds that any of the allegations made against you are true and amount to a contempt of court. You must attend court on the date shown on the front of this form. It is in your own interest to do so. You should bring with you any witnesses and documents which you think will help you put your side of the case. If you consider the allegations are not true you must tell the court why. If it is established that they are true, you must tell the court of any good reason why they do not amount to a contempt of court, or, if they do, why you should not be punished. If you need advice, you should show this document at once to your solicitor or go to a Citizens’ Advice Bureau or similar organisation.

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