The judgment creditor (acting as a litigant in person) applied for an order that the judgment debtor attend court for questioning as to his financial position pursuant to CPR r 71.2. The order was made and purportedly served on the debtor by post at four different addresses. The debtor did not attend and in consequence, pursuant to rule 71.8(1), the matter was transferred to the High Court and a suspended committal order was made against the debtor. The debtor appealed against the suspended committal order on the grounds, inter alia, that the order was unlawful for want of jurisdiction since the mandatory requirements that the rule 71.2 order be served personally on him and that service be confirmed by way of affidavit (rules 71.3 and 71.5 respectively) had not been complied with.
On the appeal—
Held, appeal allowed. There had been non-compliance with the mandatory requirements of rules 71.3 and 71.5 as to personal service of an order made under 71.2 and the mandatory filing of an affidavit by the person who served the order. Rule 71(3) provided expressly that the court order requiring the judgment debtor to attend for examination had to be served personally on the person ordered to attend court. Personal service meant what it said: the order had to be left with the individual. It was common ground that neither of the applicable documents were personally served on the debtor in the present case. Furthermore, rule 71.3(2) required the judgment creditor to tell the court if he had been unable to serve the two documents. On the face of it, therefore, there had been a failure to comply with rule 71.3. Furthermore, the provision of certificates of service did not comply with the requirement for affidavits in rule 71.5. Accordingly, the judge had lacked jurisdiction to make the suspended committal order, where the judge could not be satisfied to the required standard that the defendant had intentionally failed to attend court (paras 27–37, 58, 62, 63).
Per curiam. Where the court makes a suspended committal order under CPR r 71.8, the following matters are to be included: (1) a penal notice; (2) the reasons for the decision; (3) a list of the documents considered by the judge when making the order; (4) a clear statement as to the right to set aside, vary or stay the order under rule 3.3(5); and (5) a clear statement of the right of the judgment debtor to be legally represented (and to apply for legal aid for that representation) at the return date, in respect of any issue concerning the suspended committal order (paras 45–56, 58, 62, 63).
Jeremy Scott-Joynt (instructed by Janes Solicitors) for the judgment debtor.
Sajid Suleman (instructed directly) for the judgment creditor.