PENAL NOTICES ON ORDERS – CHANGES COMING INTO FORCE ON THE 6th APRIL 2024: A SIGNIFICANT CHANGE BY THE USE OF THE WORD “BY”
Yesterday we looked at a case where the judge held it was inappropriate for the court to add a penal notice to an existing order. The rules relating to penal notices are changing on the 6th April as a result of The Civil Procedure (Amendment) Rules 2024.
What the changes appear to do is to change the effect of the decision in Taray Brokering Ltd, Re [2022] EWHC 2958 (Ch) to allow a party to add a penal notice to an order without the need for the court confirming this.
THE CURRENT WORDING
81.2
In this Part—
…
“penal notice” means a prominent notice on the front of an order warning that if the person against whom the order is made (and, in the case of a corporate body, a director or officer of that body) disobeys the court’s order, the person (or director or officer) may be held in contempt of court and punished by a fine, imprisonment, confiscation of assets or other punishment under the law.
The current 81.4 (e).
(e) confirmation that any order allegedly breached or disobeyed included a penal notice;
THE AMENDMENTS
Amendment of Part 81
11.—(1) In rule 81.2, in the definition of “penal notice”, for ““penal notice” to “warning” substitute “A “penal notice” is a prominent notice added to the front of an order by or at the request of a party warning”.
(2) In rule 81.4(e)—
(a)for “confirmation that” substitute “whether a penal notice had been added to the front of”; and
(b)omit “included a penal notice”.
WHAT DOES THIS MEAN?
It appears to mean that the party drafting the order can add a penal notice to the front of an order without an order from the court.
THE GUIDANCE NOTES
The Guidance Notes are of little assistance, they simply state that the rules have been changed by:-
“amending Part 81 (applications and proceedings in relation to contempt of court) to clarify the nature of a penal notice in the light of Taray Brokering [2022] EWHC 2958 (Ch).”
WHAT HAPPENED IN TARAY BROKERING
In Taray Brokering Ltd, Re [2022] EWHC 2958 (Ch) HH Pearce held it was not open to a party to place a penal notice on a court order when the court itself had not placed such a notice on the original order.
THE JUDGMENT ON THE PENAL NOTICE BEING ADDED BY A PARTY
18. It follows that, on the wording of the current version of CPR 81, I am satisfied that a party is not at liberty to add a penal notice to an order of its own volition.
19. I should add that I have some doubt as to whether the practice of adding a penal notice after the order was drawn up could have amounted to proper compliance with the pre-requisite of enforcement under CPR 81.9 in its previous form as set out above. Such a notice would itself arguably form part of the judgment or order. So, for example, the practice adopted here of adding an extra sheet of paper to the order (albeit at the front of a series of pages containing a copy of the order), is arguably not a display “on the front of the copy of the judgment or order” (the wording of the former CPR 81.9) or “on the front of the copy of an order served under this rule” (the wording of RSC 45.7(4)).
20. Thus I consider it arguable that Kermanshahchi was wrongly decided. However, it is unnecessary for the determination of this issue to consider that further, in light of the changes that appear in the new version of CPR Part 81.
CONCLUSION
21. For these reasons, I am satisfied that the passage in Blackstone’s Civil Practice cited above it no longer good law (if it ever was). A party to litigation is not at liberty to add a penal notice to an order of the court of its own motion; rather, that party must apply to the court to vary the order if it wishes a penal notice to be added.
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I should make clear that nothing in this judgment deals with the position where a party seeks to enforce by way of committal a court order that does not contain a penal notice. A court order is binding on the party to whom it is addressed regardless of whether it contains a penal notice. The court has in other cases considered whether the failure to attach a penal notice is fatal to a committal application or whether it is a defect that can be waived. In my judgment, the statement in paragraph 81.4.4 of the White Book 2022 on this issue remains good law. It must also follow that that, even where the order does not contain a penal notice, it is open to the party seeking to enforce it to point out to the party who is disobeying it that their breach of the order may have penal consequences.