Factual and Procedural Background
Company A obtained a judgment against Company B (the judgment debtor) for a substantial sum. Company A secured a Part 71 order dated 20 July 2015 (the "2015 Order") requiring an officer of Company B, who was then a director, to produce documents and attend for examination. That officer was personally served with the 2015 Order within the jurisdiction. By the date set for examination he had ceased to be an officer and was outside the jurisdiction but attended and, according to subsequent findings, answered questions untruthfully and withheld documents. Company A pursued committal proceedings for contempt, which culminated in a suspended sentence in 2022 and an order that the officer attend for further examination. Various interlocutory challenges and appeals ensued. The High Court (the Judge) refused Company A's application for an order for further examination within the Part 71 process; Company A appealed. This Court heard the appeal and allowed it.
Legal Issues Presented
- Whether, where an officer of a corporate judgment debtor was validly served within the jurisdiction with a CPR r.71.2(1)(b) order but thereafter failed to comply (including by leaving office or the jurisdiction), the court has an inherent power within the process thereby initiated to make an order requiring further attendance for examination to obtain the information the original order sought.
- If such inherent power exists, whether the court should exercise its discretion to make the order for further examination in the circumstances of this case.
- Whether Company A's application was validly served on the officer's solicitors (Law Firm B) and related service/appeal service points.
Arguments of the Parties
Appellant's Arguments (Company A)
- The process begun by personal service of the 2015 Order had not ended because the officer never provided the information the order was designed to elicit; thus the court retained personal jurisdiction and an inherent power to make orders just and convenient to give effect to that order.
- The court's inherent jurisdiction (as recognised in authority such as Bekhor v Bilton and Vik 2) includes power to make orders necessary to enforce or make effective earlier orders, including further examination orders even if the officer has since left office or is abroad.
- Service on Law Firm B was valid because the officer had been joined in the underlying claim (for costs) and had provided a UK address for service; alternatively the Part 71 process forms part of the underlying proceedings so document service pursuant to CPR r.6.23 was available.
- The Judge erred in exercising her discretion by treating a further order as futile and by giving insufficient weight to the public interest in maintaining the integrity of the court's processes and to prior judicial assessments that the officer could be incentivised to comply if exposed to a real prospect of committal.
Respondent's Arguments (Respondent)
- Once the fixed date for compliance passed (or the examination concluded without adjournment), the Part 71 process was spent and the court could not make a fresh Part 71 order; the only remedy was committal for contempt.
- The court could not, by inherent jurisdiction, do indirectly what the CPR does not permit (Raja v Van Hoogstraten): it could not use inherent power to replicate a fresh Part 71 order when the rules forbid fresh service outside the jurisdiction or an order against a non-existing officer.
- Any further order would be futile because the officer is outside the jurisdiction and has shown a low incentive to comply; Company A had elected to pursue committal and its conduct and delay undermined the application.
- The application was not validly served on Law Firm B for the Part 71 application because the officer was "for costs purposes only" and Part 71 does not create proceedings to which CPR r.6.23 applies; Masri (No 4) supports that distinction.
- Company A's application was said to be motivated by improper purpose (to secure further committal), an allegation the Judge entertained.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Masri v Consolidated Contractors Int (UK) Ltd (No 4) [2009] UKHL 43; [2010] 1 AC 90 ("Masri (No 4)") |
Limits on extra‑territorial exercise of Part 71 and that a Part 71 order cannot be served outside the jurisdiction; distinction between an officer and third‑party witness for extraterritorial purposes. |
The Court treated Masri (No 4) as establishing that documents initiating Part 71 cannot be served outside the jurisdiction, but held it did not address the situation where the officer was validly served within the jurisdiction and later left; Masri did not bar the inherent power relied on by Company A in those circumstances. |
| Vitol SA v Capri Marine Ltd [2008] EWHC 378 (Comm) ("Vitol") |
Analysis of CPR provisions relevant to service and jurisdiction; Tomlinson J's analysis of predecessor to CPR r.6.38. |
The Court relied on Vitol to show prior reasoning that Part 71 process cannot be served out of the jurisdiction, but distinguished Vitol on the facts where valid in‑jurisdiction service had occurred. |
| In Re Seagull Manufacturing Co Ltd [1993] Ch 345 |
Statutory powers in insolvency context permitting extra‑territorial exercise in specific circumstances. |
Referenced to distinguish statutory insolvency powers from general Part 71 context; not applied to expand Part 71 extraterritorially. |
| Raja v Van Hoogstraten (No 9) [2008] EWCA Civ 1444 |
Limitation: inherent jurisdiction cannot be used to achieve by another route what the rules do not permit. |
Court held Raja did not apply because the inherent jurisdiction invoked here is ancillary to a power already recognised under Part 71 and does not circumvent the CPR; Raja therefore not an obstacle. |
| [2018] EWCA Civ 2011 ("Vik 2") |
Recognition that means to enforce a Part 71 order (including committal) are incidental to the order and may be exercised notwithstanding change in location of the officer after valid service. |
Court treated Vik 2 as directly supporting the proposition that enforcement measures are incidents of the original Part 71 order and that personal jurisdiction can survive the officer's departure from the jurisdiction. |
| JSC BTA Bank v Ablyazov (No 8) [2012] EWCA Civ 1411; [2013] 1 WLR 1331 ("Ablyazov (No 8)") |
Court's inherent jurisdiction to make orders necessary to protect its orders and to give effect to them (including repeated or draconian measures where necessary to secure compliance). |
Court relied on Ablyazov (No 8) to support the conclusion that the court may make further orders repeating requirements of earlier disclosure orders to secure compliance, even where the contemnor is abroad. |
| AJ Bekhor & Co Ltd v Bilton [1981] 1 QB 923 (Bekhor v Bilton) |
Foundational recognition of inherent jurisdiction to make ancillary orders necessary to the effectiveness of an existing remedy (e.g. freezing orders). |
Court treated Bekhor v Bilton as grounding the broad principle that inherent jurisdiction includes power to make orders just and convenient to make an order effective; used to justify further examination orders as implementing Part 71. |
| Maclaine Watson & Co Ltd v International Tin Council (No 2) [1989] Ch 286 |
Use of disclosure orders to make effective remedies where Part 71 process is not available. |
Court noted the case but held it did not add materially beyond Bekhor; distinguished factual route used there from the present reliance on Part 71. |
| Masri v Consolidated Contractors International (UK) Ltd (No 3) [2008] EWCA Civ 625; [2009] QB 503 |
Ancillary orders in protection of the court's jurisdiction and processes (anti‑suit relief context). |
Used to show the court's power to make ancillary orders to protect its processes when the person is subject to in personam jurisdiction; supported the existence of inherent jurisdiction here. |
| Wilkinson v Anjum [2011] EWCA Civ 1196; [2012] 1 WLR 1036 |
Power to make successive mandatory injunctions requiring positive action (e.g. disclosure) and that fresh contempt proceedings for breach of fresh orders do not infringe double jeopardy. |
Court cited Wilkinson v Anjum to reject double jeopardy objection to making a further order repeating previous requirements. |
| El Zubaidy v Borg [2023] EWCA Civ 148 |
Example of repeated committal sentences and public interest in effective enforcement of orders relating to return of children; supports repeat enforcement measures. |
Court invoked El Zubaidy v Borg as an example where repeated enforcement was justified and thus relevant to assessing futility of further measures here. |
| GFN SA v Bancredit Cayman [2009] UKPC 39; [2010] Bus LR 587 |
Interpretation of "proceedings" (context‑sensitive) and distinction between interlocutory regulatory actions and proceedings raising parties' rights. |
Court relied on Bancredit Cayman in analysing whether the Part 71 process constitutes "proceedings" for service and CPR r.6.23 purposes, treating the matter as context sensitive. |
| Gotti v Perrett [2025] EWCA Civ 1168 |
Illustration of context‑sensitive approach to whether an application initiates "proceedings". |
Cited in support of flexible construction of "proceedings" when assessing whether Part 71 process can be treated as proceedings for service rules. |
Court's Reasoning and Analysis
The Court began by identifying the central question: whether the court retains jurisdiction and an inherent power to make further orders to secure compliance with a Part 71 order that was personally served within the jurisdiction but not complied with, even if the officer has since ceased to be an officer or left the jurisdiction. The Court rejected the Judge's narrow approach which focused on whether the further order was "ancillary" or "incidental" to the 2015 Order as the determinative test.
The Court analysed CPR r.71.1 and r.71.2(1)(b) to emphasise that the Part 71 process exists to extract information to assist enforcement of a judgment. It observed that the obligations under a Part 71 order are to attend, produce documents and answer questions on oath, and that non‑compliance in any form (absence, refusal, or untruthful answers) thwarts the process.
Key legal foundations relied upon were (a) the inherent jurisdiction recognised in Bekhor v Bilton and subsequent authorities to make orders just and convenient to make earlier orders effective; (b) Vik 2 which held that enforcement measures (including committal) are incidents of the Part 71 order and do not necessarily require fresh jurisdictional steps when the officer has left the jurisdiction; and (c) Ablyazov (No 8) for the proposition that the court may make further orders repeating earlier disclosure requirements to secure compliance. The Court held these authorities support an inherent power to make a further examination order within the Part 71 process where the original order was validly served and its obligations remain unsatisfied.
The Court rejected the argument that the inherent jurisdiction may not be used to achieve by indirect means what the CPR forbids (Raja) because here the further order is a legitimate exercise of an inherent power implicit in the original Part 71 jurisdiction and does not conflict with any CPR rule. The Court also rejected Masri (No 4) as a bar to relief where the officer was validly served within the jurisdiction and later left; Masri addressed service and extra‑territorial limits, not this factual scenario.
The Court analysed the nature of completion of the Part 71 process and concluded the process is not complete merely because the hearing of the examination concluded without adjournment if the information the order sought was not provided. The officer's obligation continued and the court retained personal jurisdiction to make orders designed to secure substantive compliance.
On service, the Court analysed CPR r.6.23 and related provisions, acknowledged uncertainty whether an officer examined under Part 71 counts as a "party" for that rule, but concluded that on the facts Law Firm B was on the record for the officer in the underlying claim (the officer having been joined for costs) and that service on Law Firm B of the application notice was valid pursuant to CPR r.6.23.
On discretionary relief, the Court held the Judge erred by discounting the public interest in maintaining the integrity of court processes and by overemphasising perceived futility. The Court found previous judicial assessments (notably by Judge Moulder) that the officer could be incentivised to comply if exposed to a real prospect of committal carried significant weight and had not been displaced by subsequent evidence; thus the Judge's view that a further order would be "almost inevitably" futile was unsound.
Holding and Implications
APPEAL ALLOWED
Holding:
- The court has an inherent power, within the Part 71 process begun by valid in‑jurisdiction personal service of a CPR r.71.2(1)(b) order, to make an order requiring further attendance for examination to obtain information which the original order was designed to elicit where that information was not provided.
- The Judge's refusal to make the further order was wrong in law and in the exercise of discretion; the appeal is allowed on all grounds raised by Company A.
- The Court held that service of Company A's application notice on the officer's solicitors (Law Firm B), who were on the record in the underlying claim, was valid on the facts of this case.
Implications:
The direct consequence is that the appeal succeeds and the Court will make an order for the further examination sought (the parties are to make written submissions on the precise form of that order). The Court clarified that the inherent jurisdiction to secure compliance supports the effectiveness of Part 71 and that the existence of the officer's later departure from office or the jurisdiction does not, by itself, preclude repeat enforcement orders where the original order remains unsatisfied. The Court did not purport to create a novel rule beyond the principle that the inherent jurisdiction may be used to make orders just and convenient to enforce an extant Part 71 order; the form and terms of the further order were remitted for submissions.