Bench warrant for defendant's arrest issued on apparent failure to comply with court's order - court exercising Chancery jurisdiction having power to issue without prior finding of contempt of court - procedure for issuing bench warrant not infringing defendant's convention right to liberty

Zakharov and others v White and others: ChD (Mr Justice Roderick Evans): 28 October 2003

The claimants brought a claim against the defendants alleging breaches of fiduciary duty.

The court granted a freezing injunction against the first defendant.

Subsequently, the first claimant applied without notice for the issue of a bench warrant for the arrest of the first defendant on the ground that he had failed to surrender his passport in accordance with a term of the injunction.

The court issued the warrant and the first defendant was arrested.

It was common ground that in issuing the warrant the court had made no finding that the defendant was in contempt.

The first defendant applied to have the warrant set aside on the ground that a court exercising Chancery jurisdiction could not issue a bench warrant absent a prior finding of contempt, and that his arrest had infringed his right to liberty under article 5 of the European Convention on Human Rights because the procedure for issuing the warrant was not 'prescribed by law'.

Clive Freedman QC, Sa'ad Hossain and Jeremy Lewis (instructed by Barker Gillette) for the first defendant; Philip Marshall QC and Justin Higgo (instructed by Peters & Peters) for the first claimant.

Held, refusing the application, that a court exercising Chancery jurisdiction had power to issue a bench warrant for the arrest of an individual to whom an earlier order had been addressed and with which there appeared to have been no compliance; and that, since it could not be said that the jurisdiction was a general discretion lacking properly formulated principles as to when it could be exercised, the procedure was one which was prescribed by law within the meaning of article 5.