Threat of committal to prison for contempt of court should never be used simply to speed up a debt collection process, however long it has gone on. This was the ruling of the Court of Appeal in a case concerning Emeka Okonkwo, a tenant of Broomleigh Housing Association in Croydon, Surrey.
From 1999, the Housing Association made three separate claims for possession against Mr Okonkwo, all of them eventually withdrawn on terms that he must pay costs amounting to £441.68 in total. Orders to pay these amounts, dated up to 30 April 2004, were ignored and so the Association applied to Croydon County Court for an order for Mr Okonkwo to attend court to answer questions about his ability to pay.
In instances like this, a judgment creditor, such as the Housing Association, is entitled to obtain a court order for a debtor to attend court to be questioned about their means. In order to compel attendance, however, evidence must be supplied by the creditor to show that the order has been served. It is not unusual for the creditor to find it difficult to serve notice on the debtor.
In this case, the Association’s officers made repeated attempts to serve the court orders but were unable to do so, resulting in four separate scheduled court hearings being adjourned. At the fifth attempted hearing, on 22 November 2006, one of the Association’s officers gave evidence that he had served the papers, although this was later denied by Mr Okonkwo, who in any case did not appear at the hearing. As a result, the judge made an order in December committing Mr Okonkwo to prison for seven days, suspended provided he attended court on 13 March 2007. Further problems were encountered, resulting in a further three such orders being made. The fourth and final committal order was issued in February 2009, requiring Mr Okonkwo to attend court and answer questions on 5 May 2009. This he did, resulting in the committal orders being discharged. The appeal against the orders was allowed, however, because Mr Okonkwo was considering a career in law, and he felt that the committal orders could damage his prospects. There were also points of law that the Court of Appeal wished to consider.
At appeal, it was submitted that, before a judge can properly make a committal order, he must not only consider all the evidence but also allow the judgment debtor to be heard in his own defence. Failure to do so, it was said, would involve a breach of Article 6 of the European Convention on Human Rights.
Although a court has the power to make a committal order, to do so requires the exercise of discretion, which in turn requires consideration of the circumstances of the contempt. In the judgment of the Court, committing a person to prison for contempt of court is too serious a step to be undertaken simply as a matter of routine.
“However frustrating it may be for creditors in situations such as this, a threat of prison cannot be used simply to compel attendance at a court hearing,” says <<CONTACT DETAILS>>.
Partner Note
[2010] EWCA Civ 1113: Broomleigh Housing Association Ltd. v Okonkwo. See