Court refuses permission to serve out for committal application

The applicant contends that that the respondent failed to disclose documents and lied under oath (after he was served with an order to attend court under CPR r71.2). It therefore applied for permission to serve out of the jurisdiction an application for a suspended committal order (the respondent resides in Monaco). The respondent argued that the court only has power to make a suspended committal order under CPR r71.8 and that CPR r71 does not have extra-territorial effect.

Teare J held that:

(1) The power to commit to prison for contempt is a common law power. That power applies as much to the enforcement of a judgment as it does to enforcement of a procedural order (and a White Book note relating to CPR r71 on this point was incorrect).

(2) A party who alleges breach of an order made under CPR r71.2 does not have to proceed under CPR r71.8: he/she can elect to proceed with a committal application under CPR r81.

(3) There is no dispute that CPR r81 has extra-territorial effect. Although it did not therefore matter for this application, the judge agreed with the argument that a party cannot evade compliance with an order by leaving the jurisdiction and so an order for committal pursuant to CPR r71.8 can be sought notwithstanding that the respondent has left the jurisdiction.

(4) However, the applicant could not bring itself within one of the jurisdictional gateways of PD 6B. PD 6B para 3.1(10) provides that the court may grant permission to serve out where "a claim is made to enforce any judgment or arbitral award". A court's order under CPR r71.2 is not a "judgment" for these purposes.

Accordingly, the application failed. The judge did however leave open the issue (which was not pleaded before him) that the court may have an inherent jurisdiction to permit service out of the jurisdiction.