Court of Appeal considers committal order issues where defendant is out of the jurisdiction
The defendant, a judgment debtor who is domiciled in Monaco, breached an order pursuant to CPR r71 to provide information. The claimant applied for a committal order and Teare J held that a party who alleges breach of an order made under CPR r.71 does not have to proceed under CPR r71.8, but can instead elect to proceed with a committal application under CPR r81 (which has extra-territorial effect). When Teare J found that the applicant could not bring itself within one of the jurisdictional gateways of PD 6B, it sought to argue that permission to serve out was not required and Teare J accepted that argument. The defendant then appealed to the Court of Appeal which has now held as follows:
(1) Teare J was correct to find that the CPR r71 procedure does not supplant that available under CPR r81.
(2) Teare J was also correct to find that permission to serve out was not required because the English court already had substantive jurisdiction over the defendant because he had been personally served with the CPR r71 order and the order for committal was incidental to that CPR r71 order.
Those conclusions were sufficient to dispose of the appeal. Nevertheless, the Court of Appeal also considered the judge's view that the claimant also did not need permission to serve out because of Art. 24(5) of the Recast Regulation, which provides that, regardless of the domicile of the parties, "in proceedings concerned with the enforcement of judgments, the courts of the Member State in which the judgment has been or is to be enforced" shall have exclusive jurisdiction. The Court of Appeal said that its provisional view was that the judge had been correct on this point too.
The Court of Appeal also felt that the Rules Committee should consider introducing a new gateway allowing service on an officer of a company "where the fact he is out of the jurisdiction is no bar to the making of a committal application".