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Home > Judgments

Ahmed v Khan [2022] EWHC 1748 (Fam)

An application to commit a solicitor for breach of a location order is struck out, with important observations on the procedural requirements for enforcing an order directed to a LLP and is served (with permission) by email.

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The applicant father sought to commit a solicitor to prison for his failure to disclose the whereabouts of a child and the mother in accordance with an order of the High Court.

Mostyn J noted that at the time the High Court was being asked to make passport and location orders on the basis that the children's whereabouts were unknown, they were in fact known to the Family Court which was dealing with the applications for child arrangements orders. This was not drawn to the attention of the High Court by the father's solicitors and counsel.

The order approved by MacDonald J referred to the children's whereabouts being "unknown" and the order permitted service on the mother's solicitors by email or facsimile. An unsealed version was sent to the solicitors on 23 December 2021. [14-15].

On 4 January 2022 the solicitors applied to set aside the order, but did not comply with it before the time for compliance on 6 January 2022. On 10 January 2022 the father applied to commit the junior solicitor. Following a hearing before Peel J preliminary issues were  identified to be set down before the substantive hearing. In fact they were listed to be heard on the same day.

The father applied to introduce further evidence. Mostyn J rejected the application on the basis that while evidence subsequent to a contempt can be admitted if it is admissible and relevant to the pleaded allegations of contempt [45], the judgement in the fact-finding in the Family Court, while admissible was not relevant (as the solicitors had admitted not complying). [46-47]. Evidence that the father "strongly believed" that the mother's solicitors had tipped off the mother in breach of the order was incapable of proving the allegation.

The father sought to add a 3rd allegation that the solicitor had made a false statement in support of an application. Mostyn J noted that such an application requires the court's permission: FPR 17.6, 37.3(5) and 37.3(6) and the test for permission is set out in Tinkler & Anor v Elliott [2014] EWCA Civ 564.  [49-51].

In refusing permission the judge draws a distinction between a false statement and a grammatical impurity (the father had been described as a perpetrator of domestic abuse, without the word "allegedly" being inserted) [57-58]. He also drew attention the effect of FPR 29.1 which allows a litigant to keep their address confidential without the permission of the court if they file a Form C8 which had been done. [60-61]. The application therefore failed and was certified as being without merit.

The judge then went onto consider the application to strike out the committal application under FPR 4.4(1)(c).

In striking out the application the judge considered the importance of the procedural safeguards -referring to the case law now codified in FPR 37.4 [80-81]. He regarded the failure to include a penal notice on the face of the order as a fundamental failure, noting that in the absence of inclusion by the court it could have been endorsed by the father's solicitor in handwriting before service [83.1]. He also held that the permission to serve by email or fax did not dispense with the requirement for personal service as a condition of contempt of court as it was not expressly done by reference to 37.4. [92].

However, Mostyn J having said such failures could not be waived, gave as an example of the type of error which could be waived, the fact that the father's statement in support was not in affidavit or affirmation form. [94].

The judge also struck out the application on the basis that it was an abuse of process as it was done to ensure that the solicitor ceased to act for the mother. [95-98]

Finally he concluded that the order for disclosure was made against the solicitors employers (an LLP) and therefore in the absence of naming or identifying Mr Khan he could not be the subject of the contempt application as an individual. [104-112]

The judge refused to allow the concession by the solicitor that the order had been breached (set out in a position statement at a directions hearing) to be treated as inadmissible (on the basis that it had been made within a position statement filed in accordance with the rules. He then went onto refuse the solicitor's application for costs against the father. [114-116].

Case summary by Nicholas O'Brien, Barrister, Coram Chambers

For full case, please see BAILII