In a recent judicial decision, the Court of Appeal delivered a significant ruling in the case of Westrop v Harrath [2023] EWCA Civ 1566. Justices Lewison, Moylan, and Coulson presided over the case, which cantered on the nullification of a suspended committal order (SCO) issued under CPR 71.8 due to procedural breaches by the judgment creditor (H).
The crux of the matter lay in the failure of the appellant, judgment debtor (W), to attend court for questioning on two occasions. W attributed his absence to unawareness of the orders mandating his presence (CPR 71.2 orders) as a result of his residency in the US. However, the Court found that H had not complied with key aspects of CPR 71, specifically CPR 71.3 and CPR 71.5, leading to material non-compliance.
Justice Coulson emphasised the significance of adhering to critical elements of CPR 71, noting that while CPR 71.3 permits alternative service, judicial discretion must be exercised when issuing CPR 71.2 orders. Personal service was deemed essential due to its implications for the judgment debtor’s obligation to appear in court. The absence of an affidavit from the serving party, coupled with reliance solely on certificates of service signed by a paralegal, failed to meet CPR 71.5 requirements.
Consequently, the Court concluded that the SCO was invalid. Without proper personal service and an accompanying affidavit, the conditions stipulated in CPR 71.8(2) were not met, warranting the setting aside of the SCO. The available evidence did not substantiate W’s intentional non-attendance to the requisite standard.
The judgment also addressed several noteworthy points. Contrary to White Book commentary, the Court clarified that SCO hearings were not intended to be public. Additionally, SCO documentation should list the materials considered by the judge, and essential features such as a CPR 3.3(5) notice and a statement of the right to representation and legal aid should be included. The absence of these features rendered the SCO defective.
The ruling in Westrop v Harrath underscores the importance of procedural compliance in legal proceedings, particularly in matters of committal orders. It serves as a reminder of the judiciary’s commitment to upholding due process and ensuring fair treatment for all parties involved.
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