AN INJUNCTION MUST BE SERVED PERSONALLY: COMMITTAL PROCEEDINGS DO NOT GET OFF THE STARTING LINE

In MBR Acres td & Ors v Maher & Anor [2022] EWHC 1123 (QB) Mr Justice Nicklin held that the obligation to serve an injunction personally had not been altered by the new CPR Part 81.  Sending copies of the injunction to solicitors acting for the defendants to the injunction was not good service.

THE CASE

The claimants had obtained certain injunctions preventing the defendants, and other parties, from entering a site.  The claimants did not serve the injunctions personally on two of the defendants, nor did they seek an order for alternative service.  They served on the defendants’ solicitors.   The claimants issued proceedings for contempt. The judge had to decide whether service of the injunction on the solicitors was effective service of that injunction. He held it was not.  (The judge’s decision, where he refused the claimants’ application to dispense with service will be considered in a later post).

THE ISSUE

 

  1. The principal issue of contention between the parties is, after the introduction of the new CPR Part 81 in October 2020, whether (unless the Court permits alternative service or dispenses with service) an injunction order is required to be served personally on a defendant who is represented by solicitors before s/he can be found to be in contempt of court for alleged breach of the order or whether the effect of the CPR is to require that the injunction order be served on his/her solicitors.

THE JUDGE’S CONCLUSION

The judgment contains a detailed consideration of the procedural history of the requirement that injunction proceedings be served personally. The judge held that the new Part 81 did not override that procedural requirement. If anything the rules emphasised the need for personal service.
(3) Has the general requirement of personal service of an injunction order been removed by the changes made to Part 81?
    1. In my judgment it has not.
    1. The clearest indication that the CPRC had not intended to remove the ordinary requirement that an injunction order should be personally served on the defendant is contained in CPR 81.4(2)(c), which contains an express requirement that the applicant in a contempt application must provide “confirmation that [the order] was personally served, unless the court or the parties dispensed with personal service“. As recognised in the CPRC consultation, CPR 81.4 was regarded as the “cornerstone” of the new contempt provisions (see [58] above) which, together with the new form N600, sought to ensure procedural fairness, an essential element of which is the requirement to give notice of the injunction to the respondent. Inherent in the requirement to confirm that an injunction order has been personally served is the recognition that there is a requirement that it be served personally.
    1. Further, form N600, which was intended to ensure that the relevant information was obtained and presented to the defendant to a contempt application, contains a direct question asking for confirmation of the date on which the injunction order was personally served on the defendant or provision of details of the order dispensing with personal service (see [59] above). Ms Bolton submitted that procedural forms are not part of the CPR. Whilst I broadly accept that submission, here the form was devised by the CPRC as a package of the reforms to Part 81 expressly to ensure procedural fairness (see [58] above). The N600 Form was clearly drafted on the premise that personal service of the injunction order was required unless the Court dispensed with the requirement.
    1. I reject Ms Bolton’s argument that, by instructing solicitors, Ms Laidlaw has “dispensed” with personal service. This is a strained interpretation of CPR 81.4(2)(c). It also cannot sensibly be maintained that the requirements of 81.4(2)(c) are “wholly inapplicable” once solicitors have been instructed for a defendant. Whilst it has always been open to parties to agree a method of service of an injunction that avoids the need for personal service, Ms Laidlaw was not asked to agree to dispense with personal service of the Injunction and she did not do so. Instruction of solicitors cannot amount to a prospective dispensation of the requirement that an injunction order be personally served on a defendant, unless the Court otherwise orders.
    1. In my judgment, and from my analysis of the historic position, the general requirement of personal service of an injunction order is a substantive requirement of the law of contempt, that existed well before it was codified in procedural rules. My conclusion is that the express requirement of personal service – contained in the former CPR 81.6 (see [64] above) – was removed because Part 81 provides the procedural rules for contempt applications (and service of an injunction order is an anterior stage), and the general requirement of personal service was recognised to be part of the substantive law. Replication of the substantive law was one of the problems with the former Part 81 that had been identified by the CPRC in its consultation (see [53] above).
    1. Support for the conclusion that personal service of the injunction order is generally required is also provided by a comparison of the service requirements for the contempt application, under CPR 81.5, and a summons issued by the Court, under CPR 81.6. In respect of the former, the default position is that personal service is required, but a modified form of alternative service, by service on a legal representative, is permitted where one is on the record for the defendant. Service on the legal representative is subject to strict safeguards, including placing an express obligation upon the legal representative, even where no objection is taken to the method of service, to “provide to the defendant a copy of the contempt application and the evidence supporting it and take all reasonable steps to ensure that the defendant understands them“. If objection is taken to service on the legal representative, then it appears that valid service has not been effected, and the matter must then be referred to a Judge for decision. Similarly, CPR 81.6 also requires personal service of the summons on the defendant, unless the court otherwise directs. Again, if the defendant has a legal representative on the record, the modified alternative service procedure under CPR 81.5(2) can be used.
    1. If Ms Bolton’s argument were correct, the requirements, both for service of the contempt application, under CPR 81.5, and service any summons, issued under CPR 81.6, would be more onerous than for service of the original injunction order. Further, the regime for service on a party’s legal representative of the injunction order would be subject to none of the safeguards that the CPRC considered should be imposed in relation to service of any contempt application and service of any summons. If the CPRC had intended to remove the long-standing rule that, subject to the Court making a different order, an injunction order was required to be served personally on the defendant, and instead to permit (or more accurately, to require) service instead on a solicitor, where one was instructed by the defendant, then it would be most strange not to opt for the form of modified alternative service permitted on an instructed legal representative under CPR 81.5(2). I am also satisfied that, had it really been the intention of the CPRC to prohibit personal service of an injunction order on a defendant, who had solicitors on the record, and instead to require service on those solicitors, then the CPRC would (a) have said so expressly; and (b) have consulted fully on the proposal, all the more so when they did consult on the more modest proposals for service of the contempt application upon solicitors for a defendant and that such a change would have represented a very significant departure to what the authorities show was a principle firmly embedded in the common law.
  1. The effect of my conclusions is that personal service of an injunction order is still required by CPR 81.4(2)(c), unless the Court has permitted a different mode of service or has exceptionally dispensed with the need to serve the injunction order. As such, CPR 6.22(1) must be read as requiring personal service of an injunction order. Unless permitted by an alternative service order under CPR 6.15 and 6.27, service of an injunction order upon a legal representative who is on the record for a defendant is not good service. As a result, in this case, service of the Injunction on Cohen Cramer was not good service on Ms Laidlaw.