Court of appeal decision on committal applications, appeal against sentence and retrospective dispensation of service of Injunctions

5 October, 2022

The Court of Appeal has given judgment in Business Mortgage Finance 4 Plc & Ors v Rizwan Hussain [2022] EWCA Civ 1264, upholding the committal order granted against the Appellant by Mr Justice Miles including the Appellant’s sentencing to an immediate term of 24 months in prison for numerous breaches of an injunction in the course of 2021.

The Court of Appeal’s decision sheds welcome light on a number of significant issues relating to the Court’s committal jurisdiction under the new CPR Part 81, which has been in force since October 2020. Of particular significance is the Court’s conclusion that the Court retains the power to dispense with service of an injunction retrospectively (including at the hearing of a committal application). The Court concluded that, despite the sparse drafting of the new CPR Part 81 (which, by contrast to the relevant provisions of the old CPR Part 81, do not contain express provisions on this point), the new rules should not be interpreted as requiring an order dispensing with service of an injunction to have been granted before either the alleged breach or the issuing of the committal application. Whilst not reaching a concluded view as to where the requisite power is to be found (Nugee LJ noting that the obvious contenders are CPR 1.2(b), 3.1(2)(m), 3.10, 6.28 or the Court’s inherent jurisdiction to control its own procedure), the Court did not doubt that the power existed.

The decision, dismissing all of the Appellant’s appeals and applications for permission to appeal, also clarified a number of other significant points relevant to the Court’s committal jurisdiction under the new CPR Part 81. In particular, the Court of Appeal held that a contemnor does not require permission to appeal against either sentence or the underlying finding of contempt; that there is nothing improper in an Applicant positively seeking the imposition of the maximum sentence (contra Nicklin J’s dictum in Oliver v Shaikh [2020] EWHC 2658 (QB)); and that, in a case built on circumstantial evidence, the sum is often greater than the parts (but with Arnold LJ deprecating the image of a ‘geometric progression’ excluding all other possibilities, which has become a commonplace but unhelpful shorthand since Lord Simon’s speech in R v Kilbourne [1973] AC 729).

In dismissing the Appellant’s appeal against Miles J’s imposition of an immediate custodial term of 24 months (the maximum sentence available), the Court of Appeal also reaffirmed the important proposition that, in the context of committal applications, the maximum sentence is not reserved for the very worst contempts.

The judgment is available here.

 Anna Dilnot KC and Alex Riddiford appeared for the Respondents, instructed by Simmons & Simmons LLP.