The claimants applied for the defendant’s committal for contempt of court, alleging that he had breached the terms of an injunction. The defendant was not personally served with the injunction but the claimants alleged that he had known of the injunction by a certain date, that he had taken a series of steps which constituted breaches of the injunction and that he had known of the facts which made his conduct a breach of the injunction. The defendant did not communicate with the claimants or the court about the committal proceedings until a couple of months before the hearing. He was informed of the fixed trial window dates and was made aware of an order which required his personal attendance at the trial. The defendant did not attend the trial in person and the judge ruled that it should continue in his absence. The committal application was governed by the terms of the new CPR Pt 81. The claimants applied for relief retrospectively dispensing with the requirement under CPR r 81.4(2)(c) for personal service of the injunction on the defendant. The judge granted the application, holding that the court had power to dispense with personal service retrospectively and that, on the facts, it was appropriate to dispense with personal service of the injunction on the defendant.
On the defendant’s appeal—
Held, appeal dismissed. In general an application for committal for breach of an injunction could only be brought where there had been personal service of the injunction which was sought to be enforced. Although that was not expressly provided for by CPR Pt 81, or anywhere else in the Civil Procedure Rules, it was recognised by CPR r 81.4(2)(c), which presupposed that that was the general rule. The clear presupposition in CPR r 81.4(2)(c) that the court had power to dispense with personal service was a reflection of the long-standing practice of the court under which the court would not insist on personal service where it could be shown that the respondent had actual knowledge of the injunction. There was nothing in the language of CPR r 81.4(2)(c) and (d) which suggested that such service could only be dispensed with prospectively and not retrospectively. Therefore the power to dispense with personal service of the injunction which was recognised by those rules could be exercised retrospectively. Accordingly the judge was right to hold that the court had power on the hearing of the committal application to dispense retrospectively with personal service of the injunction if satisfied (as he had been) that the defendant had actual knowledge of its terms before the dates of the alleged breaches (paras 78–80, 82, 84, 114, 115).
Per Arnold LJ. The mathematical concept of a geometric progression is not merely inapposite as a description of the cumulative effect of a number of different strands of circumstantial evidence, but positively distracting and unhelpful (para 116).
Quaere. Whether the court’s power to dispense with service retrospectively derives from CPR rr 1.2(b), 3.1(2)(m), 3.10, 6.28 or the court’s inherent jurisdiction to control its own procedure (paras 74–77).
James Counsell KC and Alex Haines (instructed by Janes Solicitors) for the defendant.
Anna Dilnot KC and Alexander Riddiford (instructed by Simmons & Simmons LLP) for the claimants.