In a hearing in the Business and Property Court this week, Daniel Penman successfully argued that an application to commit a bankrupt individual to prison for various alleged breaches of a court order and of statutory duty should be struck out due to failings in the drafting of the application.
The application did not comply with the new CPR 81.4 in several important respects, including failing to advise the alleged contemnor of his right to legal advice and legal aid, wrongly stating that he was obliged to give evidence about the alleged contempts when in fact he had an absolute right to silence, and failing to set out a sufficiently clear case as to what the alleged contempts were said to be.
The the new CPR 81.4 was described by the Civil Procedure Rule Committee as “the cornerstone of the new draft Part 81… the guarantor of procedural fairness to the defendant”. After hearing submissions, the court agreed that in light of the Applicant’s “wholesale disregard” for these provisions, which went to the root of procedural fairness, the Applicant should not be given the opportunity to remedy those defects and the Application should be struck out in its entirety.