PROCEDURAL ISSUES ON COMMITTAL APPLICATIONS: GETTING THE PROCEDURE RIGHT

The judgment of Mr Justice Warby in Quantum Tuning Ltd v White [2019] EWHC 1376 (QB) highlights some errors made in a committal application. Fortunately for the claimant in that case the procedural errors were overlooked and contempt established. Nevertheless there are points to watch.  A party applying for committal is best advised to follow the requirements to the letter.

“It proved less than ideal for the Particulars of Claim to stand in place of the Schedule required by CPR 81.10(3)(a), and I would not recommend such a practice in future.”

THE CASE

The claimants brought contempt proceedings alleging a failure to comply with an order for delivery up.

THE JUDGMENT ON THE TECHNICAL OBJECTIONS

The judge outlined the technical objections taken by the claimant and his response to those.

1. 1. The application is made under Section II of CPR Part 81 (Committal for breach of a judgment, order or undertaking to do or abstain from doing an act). This is the Section that applies where the defendant is alleged to have interfered with the due administration of justice by failing to do something he is required by an order of the Court to do: see rr 81.4(1)(b) and 81.12(1).

   2. CPR 81.10 prescribes “How to make the committal application”. It includes the following provisions:-

“(3) The application notice must

(a) set out in full the grounds on which the committal application is made and must identify, separately and numerically, each alleged act of contempt including, if known, the date of each of the alleged acts; and

(b) be supported by an affidavit containing all the evidence relied upon

(4) Subject to paragraph (5), the application notice and the evidence in support must be served personally on the respondent

(5) The court may –

(a) dispense with service under paragraph (4) if it considers it just to do so; or

(b) make an order in respect of service by an alternative method or at an alternative place.”

1. 1. CPR 81.28(1) provides that, at the hearing of any committal application, the applicant may not rely on any grounds other than those set out in the claim form or application notice unless the court otherwise permits. PD 81 para 15.5 requires the Court dealing with a committal application to “have regard to the need for the respondent to have details of the alleged acts of contempt and the opportunity to respond…”

   2. Mr White’s representatives have at various times raised procedural objections to the way in which this application has been made.

(1) In correspondence, there has been criticism of a lack of clarity in the grounds on which reliance is placed. As I have explained, these are not set out in the Committal Application itself, in numbered counts. It is fair to say that Quantum’s correspondence and evidence have at various times advanced criticisms which are not made in the Application Notice or in the Particulars of Claim.

(2) In his skeleton argument for this hearing, Mr Carpenter-Leitch raised two further issues. First, he pointed out that the application notice had not been served personally. He did not present this as a fundamental objection, but as something which ought to be attended to. Mr Carpenter-Leitch’s second point was pressed rather harder. He pointed out that the Committal Application sought to rely on a number of witness statements. He submitted that under the rules the claimant was only entitled to rely on evidence given by affidavit. Witness statements are not a legitimate way to adduce evidence for this purpose. To the extent that Quantum sought a departure from the regime prescribed by CPR 81 that needed to be justified and, he submitted, no justification had been offered. The main target of this submission was the witness statement and exhibit of Axel Schroer.

1. 1. Herr Schroer is the Managing Director of EVC electronic GmbH (“EVC”), a company based in Dinslaken near Dusseldorf which provides hardware and software products to the vehicle tuning industry. His evidence relates to a proprietary software product of EVC called WinOLS. The product is written specially to modify the memory contents of Engine Control Units (“ECUs”). WinOLS provides an interface between the data held on a vehicle’s ECU and EVC’s customers. Herr Schroer says that “WinOLS is the preferred choice of professional tuners and… the industry standard”. Quantum is one of EVC’s customers. The essence of Schroer is to give an account of how WinOLS works, and to provide, at the request of Quantum, details of the WinOLS account activity of a UK Company, Intune Performance (which Mr White admits is his), and of another account in the name of Added Automotive. Mr Schroer exhibits logs showing activity on WinOLS in relation to both accounts.

   2. I myself had wondered about the legitimacy of reliance on Schroer, noting that it was not in affidavit form. I also asked myself whether it was on analysis expert evidence, and hence admissible only with the Court’s permission, and/or hearsay in respect of which a notice should have been served if reliance was to be placed upon it. It seemed clear that the evidence of Schroer was central to the case against Mr White. Mr Ramsden’s opening address reinforced that impression.

   3. As a general rule, the Court has demanded strict compliance with the procedural requirements for committal applications, which exist to ensure that the alleged contemnor benefits from due process, and to guard against unfairness in proceedings which can lead to deprivation of liberty. As noted in the commentary to r 81.10:

“Where an application is made to commit a defendant for contempt of court, it is obviously important that great care is taken by the applicant to ensure that all of the procedural requirements in this Section of Pt 81 are met.”

1. 1. It has, however, long been recognised that this does not require slavish adherence to the technicalities, regardless of the justice of the case. It must not be forgotten that an order for committal serves the vital purposes of upholding the Court’s authority, and vindicating the rule of law. Dealing with a case justly includes “enforcing compliance with … orders”: CPR 1.1(2)(f). A rigidly technical approach would be inimical to these imperatives. In Nicholls v Nicholls [1997] 1 WLR 314, 326, where the Court was dealing with an appeal against committal, Lord Woolf MR put it this way:

“While the procedural requirements in relation to applications to commit and committal orders are there to be obeyed and to protect the contemnor, if there is non-compliance with the requirements which does not prejudice the contemnor, to set aside the order purely on the grounds of technicality is contrary to the interests of justice. As long as the order made by the judge was a valid order, the approach of this court will be to uphold the order in the absence of any prejudice or injustice to the contemnor as a consequence of doing so.”

1. 1. Naturally, the same approach applies when the judge at first instance is considering whether to insist on strict compliance with the procedural requirements laid down in the rules. This principle is now embodied in paragraph 16.2 of the Part 81 Practice Direction, which 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.”

1. The issue of service was not addressed in the oral arguments of the parties. It is a pure technicality. To the extent necessary, I authorise pursuant to CPR 81.10(5)(b) service of the Committal Application and supporting evidence by the alternative method of service on the defendant’s solicitors, and waive previous non-compliance.

2. The defendant’s complaints or criticisms of a lack of clarity in the claimant’s case on this application had some merit but they were not, in the event, material. It proved less than ideal for the Particulars of Claim to stand in place of the Schedule required by CPR 81.10(3)(a), and I would not recommend such a practice in future. A more convenient course would have been the conventional one: the provision of a numbered list of alleged breaches, with short particulars. But this was not a “procedural defect” or, if it was, it was something approved by the Saggerson Order. In any event, by the end of the hearing Quantum’s case had been whittled down, as I shall explain. All the matters that are now relied on have been sufficiently clear at all material times, and there has been no question of a lack of clarity leading to unfairness.

3. As for the evidential points, Mr Ramsden made clear that his client would not seek to rely on any witness statement other than Schroer, and he would not rely on the expert report of Coyne. I concluded after argument that no injustice had been caused to Mr White by the failure to adduce Schroer in the form of an affidavit, and that I should apply PD81 16.2 in favour of Quantum. I accepted its offer to procure the verification of Schroer by way of affidavit, and waived any prior breach of CPR 81.10(3)(b) in that respect. The affidavit has since been provided. I also concluded that Schroer was not expert opinion evidence, and probably not expert evidence of fact either, but that if it was I would grant permission. Prominent among the reasons I gave in so ruling were the facts that Schroer had been served as long ago as June 2018, Mr White was sufficiently expert to deal with the evidence, and he had done so extensively in his own written evidence without raising objection.

4. Mr White himself applied for permission to adduce affidavit evidence that was not provided for by the Saggerson Order, in the form of White 5 and White 6. I granted that application, which was not opposed, on the basis that White 5 contained clarifications or corrections which it would have been proper to deal with in oral evidence in chief, and neither the late service of that nor White 6 was a serious or significant breach which ought to result in exclusion of the evidence.