BL-2021-002235 - [2025] EWHC 1966 (Ch)

Procedure in contempt cases is governed by CPR Part 81. CPR rule 81.4(2) relevantly provides that:

“(2)

A contempt application must include statements of all the following, unless (in the case of (b) to (g)) wholly inapplicable—

[ … ]

(c)

confirmation that any such order was personally served, and the date it was served, unless the court or the parties dispensed with personal service;

(d)

if the court dispensed with personal service, the terms and date of the court’s order dispensing with personal service … ”

In Business Mortgage Finance 4 Plc v Hussain [2023] 1 WLR 396, Nugee LJ (with whom Arnold and Stuart-Smith LJJ agreed) said:

“78.

… In general an application for committal for breach of an injunction can only be brought where there has been personal service of the injunction which is sought to be enforced. That is not expressly provided for by Part 81, or anywhere else in the rules, but it is recognised by CPR r 81.4(2)(c) which presupposes that this is the general rule …

[ … ]

80.

There is nothing in the language of CPR r 81.4(c) and (d) which suggests that such service can only be dispensed with prospectively and not retrospectively. In my judgment therefore the power to dispense with personal service of the injunction which is recognised by those rules can indeed be exercised retrospectively … ” 

In Madison Pacific Trust Ltd v Groza [2024] EWHC 2307 (Comm), another contempt application, Bryan J said:

“99.

In such circumstances, the Claimant applies for an order retrospectively dispense with the requirement for personal service, and has done so as part of the Contempt Application itself, as envisaged by the Court of Appeal in Business Mortgage CA. As Nugee LJ noted in that case (at [81]), applying separately for retrospectively dispensing with personal service would ‘…lead to unnecessary duplication and extra cost with no apparent benefit to anyone.’

100.

The relevant test is the same under the revised CPR Part 81 as it was under the previous iteration of Part 81: whether any injustice has been caused to the Defendants by reason of the Claimant's failure to effect personal service on them (Business Mortgage at [57]). The "key question" is whether the Court is satisfied to the criminal standard that the material terms of the order were effectively communicated to the Defendants and the Defendants had actual knowledge of its terms (see MBR Acres Limited v Maher and another [2023] (QB) 186 (‘MBR Acres’) at [117]; and Business Mortgage CA, supra at [79]).

101.

Although it is suggested in MBR Acres that the Court may only dispense with service ‘exceptionally’, there is no requirement of ‘exceptional circumstances’ (see Khawaja v Popat [2016] (Civ) 362 at [40]).

102.

As is also said in the White Book commentary to CPR6.2(8) (‘Power to dispense with service of a document other than the Claim Form’), at paragraph 6.28.1:

‘there are good reasons why dispensing with service of originating process, such as a claim form, should require exceptional circumstances to be established and a lesser standard should apply to documents served in the course of proceedings’.

103.

I also agree with what is said in Gee on Commercial Injunctions (7th ed) at paragraph 19-041 that the Court:

‘should be willing to dispense with service, and to do so to enable an order of committal to be made, if the respondent was aware of the terms of the injunction [and…] the lack of formal service has not caused him prejudice or unfairness […]’.

104.

In this regard, and as was said in Group Seven Ltd v Allied Investment Corpn Ltd [2014] 1 WLR 735 at [37], the overriding objective would not be served by requiring personal service of the Disclosure Order ‘purely as a matter of form’.”