In Gill and others v Darrock and others [2010] EWHC 2347 (Ch) the High Court was faced with a situation where a freezing order had been served without the penal notice being endorsed on the front page, as required. As a result the court considered whether it had a discretion to dispense with service and, therefore, with the endorsement requirement.

The Claimant had alleged that payments due to it under a trust had been, or might be, diverted to the Defendant and so had applied for and been granted a without notice freezing order, which incorporated the usual form of penal notice. Under this order the Defendant was also required to provide certain information regarding its assets. When the Claimant’s solicitors were unable to serve the order on the Defendant, they sent an email enclosing various documents including the freezing order, the penal notice on which was on the second page, rather than the first as required. The Defendant was notified in this communication that if it failed to comply with the requirements of the order, it would be at risk of an application for committal for contempt of court. The Defendant did not provide any of the information requested by the time specified in the order, and so the Claimant issued a committal application. The Defendant subsequently provided some of the information, and the Claimant offered to discontinue the committal application on payment of a contribution to its costs. The Defendant refused this offer. The Claimant accepted that committing the Defendant to prison would not be appropriate in the circumstances, but it continued with the application on the basis that there had been a contempt and a suitable penalty should be imposed.

One of the main issues for the court to consider was whether the failure to put the penal notice on the front page of the order meant that there should be no finding of contempt and, if so, whether the court could and should exercise its discretion to dispense with service.

The judge waived and dispensed with the requirement for service of the penal notice, leaving it open to the Claimant to commence committal proceedings. It was, the judge said, within the court’s discretion to dispense with service of an order on a defendant, which would have the effect of dispensing with the requirement for the endorsement of the penal notice. In this case, it was appropriate to dispense with service because the breach by the Claimant was a technical one which caused no prejudice, and indeed the Defendant did not suggest that he had suffered any prejudice as a result of the penal notice being on the second page of the order.

It should be noted that this case is at odds with the notes to the White Book, which state that the court has no discretion to dispense with the requirement to display a penal notice on the front page of an order.