Summary

Although an appellant had repeatedly failed to attend court when ordered there was no evidence justifying a judge's conclusion that his behaviour was contumacious and the judge had erred in imposing a suspended committal order.

Facts

The appellant diamond merchant (R) appealed against a judge's decision to make a suspended committal order against him. R had been required by a court order to pay significant and outstanding debts owed to the respondent bank. For the purposes of assessing R's means the court ordered R to attend court for questioning under CPR Pt 71 on a fixed date. R was unable to attend court on the specified date and subsequently the court tried and failed to obtain R's attendance for questioning on five separate occasions. On each of those occasions R persuaded the courts to grant the necessary adjournments. In the intervening period R was forced to travel to India to defend a legal action brought against him in another matter. The Indian courts made an order restricting the length of time he could leave the Indian jurisdiction. R was therefore unable to attend court in the United Kingdom on the date that had been fixed by the courts after the sixth adjournment. R was advised, by his representatives in the Indian matter, not to trouble the Indian courts with an application to allow him to return to the UK for the purposes of participating in the hearing. Instead R sent the UK judge copies of a letter from his Indian representatives explaining why he would be unable to attend the hearing on the date set. The judge was mindful that R was a contumacious person having failed to pay debts owed and to attend court on numerous occasions and made a suspended committal order against R. R submitted that there had been evidence before the judge explaining his reasons for failing to attend and that it had been unfair to count his earlier failures to attend court as constituting contumacious behaviour sufficient to justify a satisfaction of the criminal burden of proof.

Held

The judge should have been cautious about making a suspended committal order in light of evidence before the court that might have rendered the order inappropriate. It was true that R was a judgment debtor and that he had created his own contempt by failing to apply to the Indian courts for the necessary extensions that would have allowed him to attend court on the fixed hearing date. However there was insufficient evidence to suggest that, in relation to that contempt, the necessary criminal burden of proof had been satisfied. In such cases the courts should prefer a warning to the effect that if the debtor did not attend court on a specified date a suspended committal order might then be made against him, rather than making the order by default. The order was set aside.

Appeal allowed.