Accepting office as lord chancellor, Liz Truss declared: ‘We know that all successful societies have the rule of law at their core.’
Amen to that. But one important aspect of the rule of law is the enforceability of court judgments. And I am going to suggest that one component of the machinery of enforcement – the order to obtain information from judgment debtors, what we used to call the oral examination – is simply not fit for purpose.
Part 71 of the Civil Procedure Rules sets out the procedure and CPR 71.2(6) and (7) tell us that:
(6) A person served with an order issued under this rule must –
(a) attend court at the time and place specified in the order;
(b) when he does so, produce at court documents in his control which are described in the order; and
(c) answer on oath such questions as the court may require.
(7) An order under this rule will contain a notice in the following terms, or in terms to substantially the same effect –
‘If you the within-named [ ] do not comply with this order you may be held to be in contempt of court and imprisoned or fined, or your assets may be seized.’
In practice, there are unfortunately two weaknesses. What happens if the debtor does not attend? And what happens if, when he attends, he cocks a snook at the procedure?
The prescribed procedure if the debtor does not attend is that the court officer or district judge before whom the debtor should have attended certifies the facts and the file is then passed to a circuit judge or High Court judge, quite possibly sitting at another court. That judge may then make an order for committal which must (note, must – CPR 71.8(4)) be suspended on terms that the debtor graciously condescends to turn up on another occasion.
But, says the Court of Appeal in Broomleigh Housing Association v Okonkwo  EWCA Civ 1113, a committal order must not be automatic. The judge must consider whether other alternatives are available. I refer readers to District Judge Adam Taylor’s excellent summary of the Okonkwo decision in the Gazette. It is sufficient to observe that Okonkwo, having had judgment entered against him in April 2004, sauntered along to court in November 2007 and languidly informed the court officer that he ‘needed more time before he could fill in the form’.
Much later still, Okonkwo appealed to the Court of Appeal, complaining that his prospects as a law student might be prejudiced by him having had a suspended committal order made against him. Setting aside the suspended committal order, a strong (but some would suggest over-indulgent) appeal court observed that: ‘It is undesirable for the court to approach the making of severe orders with any degree of promiscuity just because it has an expectation, however well justified, that they are unlikely to need to be enforced’. That, of course, understates the position. Provided the debtor does as he should, a committal order under CPR 71 cannot be enforced because it must be suspended.
Why do we not dispense with this nonsense, which plainly derives from the fact that before 1990 county court registrars could not make committal orders (although, curiously, they could impose sentences of imprisonment for offences under the Attachment of Earnings Act 1971). We should stop making committal orders we have no intention of enforcing, and say simply that if the debtor does not turn up, having been properly served and given conduct money if he asked for it, a warrant should be issued for his arrest?
Because most of CPR 71 is not incorporated into rule 33.3(2) of the Family Procedure Rules, the issue of a warrant of arrest appears the most appropriate means of securing the debtor’s attendance on the hearing of an ‘application for enforcement by such means as the court considers appropriate’, although I appreciate that my former colleague Peter Glover would disagree (see tinyurl.com/hmjxnws). I can say that I have personally had two family maintenance debtors dealt with in that way, and it seems to achieve the objective admirably.
But, of course, the problems do not stop when you get the debtor to court. The same Byzantine procedure applies (CPR 71.8(1)) if the debtor:
(b) refuses at the hearing to take the oath or to answer any question; or
(c) otherwise fails to comply with the order.
And the extent to which a determined debtor can render the procedure a complete nonsense is underlined by the lamentable history of Watson v Sadiq & Sadiq. Watson, acting in person, had brought a county court action against Messrs Sadiq. At the end of what had been intended to be a four-day trial, it was settled by a consent order under which he received some £67,000 and interest of nearly £7,000.
Watson then sought to appeal that consent order and was represented by leading counsel before the Court of Appeal in 2013 –  EWCA Civ 822. His appeal was dismissed with costs, which were assessed at £47,448.90. The Sadiqs sought to enforce payment of those costs, and an order for questioning brought Watson before a deputy district judge in May 2015. Watson was accompanied by his son Lawrence.
An ill-advised application was made to join Lawrence as a party – as was subsequently held by Hickinbottom J, there was no power to join him – and in the course of the judge considering that application the following exchanges took place, as recounted by Hickinbottom J ( EWHC 3403 (QB)): ‘[The judge] asked the defendant for details of his son, such as his address and his age. The claimant refused to tell him, saying that, if the judge wished to ask Lawrence Watson about his address and age, he (the judge) should simply ask him.
‘The judge did so; but Lawrence Watson did not give the information sought, simply saying that he was “not a part of this” and he was just there to “sit in and view this”. The judge then asked him (Lawrence Watson) to step outside the court, which he apparently agreed to do.
‘However, the claimant objected, saying that his son was there as his carer, and he did not think that the judge had any authority to send him from the court. He said that, if the judge did exclude Lawrence Watson, then the claimant himself would leave because, he said, he was not prepared to be there without his carer. Lawrence Watson then left the court, and the claimant immediately followed. The judge indicated at once that he considered that this was a contempt of court…’
It was also said that Watson (senior) had given a false address to the court.
When the matter reached the High Court, however, Hickinbottom J had, of course, to set aside the order purporting to join Lawrence Watson. He was assured by Watson senior that he would cooperate fully and engage with the oral examination procedure, and he went on: ‘I do not think it would be fruitful or helpful to investigate further whether an act of contempt was committed by the claimant.’
So back to the county court the matter went. Hickinbottom J helpfully added: ‘Although it is a matter for those who assign judges in Watford County Court, given the historical difficulties in this case, it may well be that they will consider it appropriate to assign an experienced district judge to deal with [the renewed oral examination].’
I was the ‘experienced district judge’ who drew that particular short straw. As the matter remains sub judice I shall not go into details – suffice it to say that little was achieved, and I was reminded of Holman J’s comments in D (Children), Re  EWFC 85 where an intractable contact dispute had been listed before him as a visiting High Court judge: ‘The fact of the matter is that I do not have any power in relation to this case which is not possessed also by a local circuit judge. I have no “magic wand”…’
Neither had I. For over a century, the notes to this procedure in the White Book have sententiously insisted that this procedure ‘not only intended to be an examination, but a cross-examination and that of the severest kind’ (Republic of Costa Rica v Stronsberg (1880) 16 ChD 8) but if the debtor simply refuses to engage meaningfully with the procedure, what is the creditor, or the judge, meant to do? Granted the debtor’s conduct ‘may conceptually amount to a contempt in the face of the court’, to quote a remarkable phrase from Hickinbottom J’s judgment.
But the absurd rigmarole of CPR 71 provides, as Hickinbottom J points out, a self-contained code. The only sanction available for such contempt is for the district judge conducting the examination to pass the file to – I am tempted to write ‘a proper judge’ – who may make a committal order. But the suspension of that order provided that the debtor says that he will comply next time appears to be mandatory.
What is particularly crazy is that when the court makes a freezing injunction against a defendant at a time when there is no judgment in place, the court can attach a requirement that the defendant make full disclosure of his resources, and enforce that obligation by immediate committal.
See JSC BTA Bank v Solodchenko & Ors  EWCA Civ 1241, where Jackson LJ (pictured) says: ‘Where there is a continuing failure to disclose relevant information, the court should consider imposing a long sentence, possibly even the maximum of two years, in order to encourage future cooperation by the contemnor.’
So a defendant against whom there is no judgment, and who may in truth owe the claimant nothing, can be sent to prison for two years for not telling the truth about his situation; a defendant who has actually been adjudged to owe the claimant money faces no comparable sanction. How does this serve the rule of law?
Why do we not replace the labyrinthine and unworkable CPR 71.8 with short, sharp and uncompromising provisions that:
i. if the debtor does not attend having been properly served and given his expenses if he asks for them, he gets arrested;
ii. if the debtor refuses to be sworn or fails to answer truthfully any proper question, he will be in contempt of court and liable to imprisonment for up to two years?
Neil Hickman sat at Milton Keynes County Court for many years and now sits as a deputy district judge. He is a contributor to Family Court Practice and a former general editor of Civil Court Service (Jordans)