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RE MALIK (2013)

 

QBD (Admin) (Stuart-Smith J) 18/07/2013

CIVIL PROCEDURE – ADMINISTRATION OF JUSTICE – CRIMINAL PROCEDURE – CPR

CONFISCATION ORDERS : CONTEMPT OF COURT : CPR : DIRECTIONS : EXTENSIONS OF TIME : NON-COMPLIANCE : FAILURE TO COMPLY WITH DIRECTIONS ORDER : FAILURE TO RECOGNISE THE SERIOUSNESS OF APPLICATION AND IMPORTANCE OF COMPLIANCE WITH COURT RULES : CIVIL PROCEDURE RULES 1998 r.81.10, Pt 81, Pt 23, r.1.1(2)

 

An extension of time to comply with a directions order that required the correct application notice and supporting documents for a contempt of court application was refused as the applicant CPS had completely failed to comply with the order without a satisfactory explanation, had applied for an extension by letter after the time for compliance had expired, and had failed to recognise the seriousness of an application for contempt of court and the importance of compliance with court rules.

 

The applicant CPS applied to commit the respondent (M) for contempt of court.

The CPS believed that M had been frustrating the purpose of a confiscation order against him by diverting rental income to bank accounts not previously disclosed. M’s case had previously been dealt with by the Department for Work and Pensions Prosecution Division, which had merged with the CPS shortly before the contempt of court application was made. The application did not comply with the requirements of CPR r.81.10 and CPR PD 81 as it was not on the form prescribed by CPR Pt 23 and was not supported by the required evidence by affidavit. Directions were made for service of the correct form and supporting documents. A month after the date for service had expired, the CPS wrote to the court asking for the timetable to be varied, explaining that civil applications were outside the general expertise of the CPS staff who drafted the application and that the error had not been discovered until the writer had returned from leave. The court ordered that the hearing of the substantive application be treated as an application for an extension of time to comply with the directions.

HELD: There had been a number of errors by the CPS at every stage. It had failed to issue the proper form of application, provide evidence by affidavit, comply with the directions order, apply for an extension of time and attempt to agree a timetable with M. It had also failed to appreciate the seriousness for M of the consequences of the truncated timetable proposed and had not given a proper explanation for its failure to comply with the directions order. The starting point was the amended overriding objective in CPR r.1.1(2), which directed that dealing with cases justly included allocating an appropriate share of the court’s resources and enforcing compliance with rules, practice directions and orders. In favour of an extension of time was that the draft notice and an affidavit were available and the court could give directions for the substantive hearing to take place in the autumn. The factors against were that there had been a clear breach of a court order without a satisfactory explanation, the letter had been sent after the time for compliance had expired and an application to commit for contempt could have serious consequences. Balancing the competing considerations, an extension of time would not be granted. There had been a lamentable lack of competence by the CPS which had continued in the face of the clearest possible directions order. There had been a complete failure to recognise the seriousness of an application for contempt of court and the importance of compliance with court rules. A day of court time had also been wasted. It was no answer for a lawyer to say that he was not competent to deal with an application. There had been an unforgivable display of incompetence and the CPS would be ordered to pay M’s costs on the indemnity basis to show the court’s disapproval.

Application refused

Counsel:
For the applicant: G Ganesan
For the respondent: Muthupandi Mostafa

Solicitors:
For the applicant: In-house solicitors
For the respondent: Saunders

 LTL 22/7/2013 EXTEMPORE

 

 

Document No. AC9701123