Kristian Siem & Ors v Lars Windhorst [2026] EWHC 1323 (Comm)

[2026] EWHC 1323 (Comm)Case No CL-2021-000307
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMMERCIAL COURT (KBD)
Venue The Rolls Building, Fetter LaneDate Friday, 1 May 2026
London EC4A 1NL
Before
THE HON. MR JUSTICE BRYAN
Between
KRISTIAN SIEM & ORSClaimantsLARS WINDHORSTDefendant
CHRIS SMITH KC (instructed by Stephenson Harwood LLP) for ClaimantsTHOMAS WEST (instructed by Richard Slade & Partners LLP) for DefendantHearing Hearing Date: 1 May 2026
APPROVED JUDGMENT

INTRODUCTION

[1]The parties appear before the Court today in relation to the hearing of the Claimants’ application made by letter dated 10 November 2025 for an order committing the Defendant for contempt of Court pursuant to CPR 71.8 on account of his failure to comply with orders of the Court requiring him to produce certain documents for the purpose of a CPR 71 hearing.[2]Pursuant to directions issued by Henshaw J on 23 February 2026, the following issues arise for determination by the Court:(1) Whether CPR 71.8 has been engaged in circumstances where the orders breached by the Defendant required him to provide the relevant documents in advance of, rather than at, the CPR 71 hearing?(2) If CPR 71.8 has been engaged, whether the Court should exercise its discretion to make a suspended committal order and, if so, on what terms?(3) If CPR 71.8 has not been engaged, whether the matter should proceed by way of: i) The making of a further CPR 71 order requiring the Defendant to provide the documents in question at a hearing in Court or ii) An application for committal pursuant to CPR 81.[3]Issue 1 was identified as arising by Henshaw J when he gave directions as to the hearing of the application. On this point he stated as follows:
“I note that the defendant accepts that he failed to disclose the bulk of the documents ordered, and does not seek to re-open the Bard Order or the Thornett Order. Nonetheless, the court will need to consider:- (a) whether CPR 71.8 is strictly engaged, bearing in mind that the stage was in fact never reached of the defendant being required to produce documents to the court at a hearing (see CPR 71.2(6)(a) and (b)), providing for an order requiring that the judgment debtor must attend court at the time specified and ‘where he does so produce at court’ documents in his control specified in the order); or whether the matter will instead have to proceed by way of (i) a further Part 71 order requiring production of specified documents at a hearing in court, alternatively (ii) a committal application under Part 81.”
[4]In relation to Issue 1, Chris Smith KC, on behalf of the Claimants, submits that CPR 71.8 is engaged. He submits that it applies to breaches of orders made under CPR 71.2. CPR 71.2 provides that a judgment debtor can be ordered to attend Court to provide information about his means and can be required to produce certain documents for these purposes. While CPR 71.2 envisages that those documents will ordinarily be produced at the hearing where the questioning is to take place, it is submitted that there is nothing in CPR 71.2 itself (or the CPR generally) preventing the Court from making an order under CPR 71.2 requiring the documents to be produced in advance of a hearing. Accordingly, where, as here, the Court has made such an order, it should be regarded as an order made under CPR 71.2.[5]In contrast, Thomas West, on behalf of the Defendant, submits that the effect of an order under CPR 71.2 is that the debtor is required to attend Court on a particular date and when he does so to produce the documents in his control described in the order. Here, the Defendant has been ordered to produce documents in advance of the hearing, he is not a person against whom an order was made under CPR 71.2 and does not fall within the scope of CPR 71.8(c) for any failure to comply with that order.[6]Given that Issue 1 is a threshold issue, the answer to which will determine whether the Court will proceed to Issue 2 or to Issue 3 respectively, I indicated at the outset of the hearing that I wished to hear both parties in relation to Issue 1, and would give my judgment in relation to that, before proceeding to Issue 2 or 3 as applicable.

FACTUAL AND PROCEDURAL BACKGROUND

[7]Before addressing Issue 1, it is necessary to place that issue in context, having regard to the factual and procedural background, and the Orders that have been made to date.[8]The Claimants’ claim against the Defendant was issued on 20 May 2021 and was for sums due from the Defendant under certain guarantees and other agreements.[9]The Defendant did not respond to the Claim Form, and judgment in default of acknowledgment of service was entered in the Claimants’ favour on 27 July 2021 for approximately EUR 64 million (the “Judgment”).[10]To date, the Judgment remains unsatisfied. As at 10 November 2025, the total amount outstanding (including interest) was approximately EUR 75 million.

B.1 The First CPR 71 Application

[11]The Claimants made an application under CPR 71 on 13 August 2021 (the “First CPR 71 Application”). Attached to this application was a list of documents that the Claimants wanted the Defendant to produce for the purpose of the First CPR 71 Application.[12]As will become relevant in due course, it is to be noted that that letter from a company within the Claimant group provided in a footnote:
“As the court will be aware, there is a standard form both for applications pursuant to CPR 71 and any order of the Court made thereon. Those standard forms do not allow for the possibility of seeking ancillary provisions and that is why the Claimants are requesting such provisions via the present letter.”
I will need to return to this in due course. The standard form that was referred to is Form N316.[13]On 17 August 2021, the Court ordered that the Defendant(a) attend Court on 27 October 2021 for questioning and(b) produce certain documents at that hearing. The documents the Defendant was required to produce were particularised in a list attached to the order. This was the same list as that which had been attached to the Claimants’ application.[14]On 1 September 2021, the Claimants applied to the Court for an order that the Defendant provide the document specified in the 17 August 2021 order in advance of the CPR 71 hearing. This was on the basis that the Defendant was/is a man of considerable means and his financial affairs were of some complexity with his assets in all likelihood being held by various nominees and/or tied up in various trusts.[15]The Court acceded to this application and, on 8 September 2021, ordered that the Defendant provide the relevant documents by 29 September 2021.[16]The subsequent history of the First CPR 71 Application is summarised in a Chronology, which has been served by the Claimants. In this regard:(1) The Claimants say that despite being granted various time extensions, the Defendant has never provided the documents he was ordered to provide and the breaches in this regard have been recorded in various orders of the Court (referring to the Court’s orders of 17 October 2021 and 2 June 2022). It is to be noted that some of the relevant orders made by the Court afforded the Defendant the opportunity to file a statement explaining either that some of the documents were not available or that he objected to providing them (see the orders of 12 October 2021 and 2 June 2022). The Defendant did not avail himself of these opportunities (as has been recorded by the Court in recitals to other orders).(2) On 13 September 2022, the parties agreed that the First CPR 71 Application would be withdrawn on terms that the Defendant would pay the Claimants certain sums. This agreement provided that, in the event of the Defendant defaulting on his obligations thereunder, the Claimants were at liberty to make a further application under CPR 71. The First CPR 71 Application was accordingly withdrawn.

B.2 The Second CPR 71 Application

[17]The Defendant did not comply with the terms of the 13 September 2022 agreement, and accordingly the Claimants issued a further CPR 71 application on 19 June (the “Second CPR 71 Application”). The present application arises out of the Second CPR 71 Application.[18]It is relevant to know, for reasons which will become apparent in due course, that the application was accompanied by an email timed at 16.48 on 19 June 2023. That provided, amongst other matters, that the Claimants wished to apply for orders pursuant to CPR Part 71 against the Defendant (the judgment debtor), and it then provided as follows:
“Please find attached: (1) Application Notice: N244(CC); (2) Application Notice to attend court: N316; …”
[19]In the Second CPR 71 Application itself, the Claimants sought an order that the Defendant be required to attend Court for questioning (that is the subject matter of the application notice N316 which is contemplated by CPR 71.2(3)); and also that the Defendant be required to adduce certain specified documents 28 days before the hearing listed for the application notice. It is of some relevance to note that that was pursuant to a separate application notice under form N244(CC) which was the second of the matters attached to the email of 19 June.[20]The Court granted this application and on 10 July 2023 ordered that:(1) The Defendant attend Court for questioning on 23 October 2023;(2) The Defendant disclose the documents identified by the Claimants within 28 days.[21]On 1 August 2023, the Defendant’s then legal representatives, Quinn Emanuel Urquhart & Sullivan UK LLP (“QE”) wrote to the Claimants stating that all the documents the Defendant was required to produce under the 4 July 2023 order had in fact already been provided to the Claimants. This was on the basis that:(1) Pursuant to a Worldwide Freezing Order (WFO) granted to the Claimants against the Defendant on 17 July 2023, the Defendant had provided an affidavit detailing his assets;(2) Pursuant to a CPR 71 application made in a separate set of proceedings brought by the Claimants against the Defendant (as one of two defendants), the Defendant had been ordered to provide, and had provided the Claimants with, certain specified documents (under what has been referred to as the “Davidson Order”, being an order of Master Davidson dated 6 June 2023).[22]Thereafter, the parties (via their legal representatives) debated whether the Defendant had in fact complied with his obligations under the 4 July 2023 order. As part of these discussions, Stephenson Harwood LLP (“SH”) sent emails on 16 October, 17 October and 18 October 2023 (“the October 2023 emails”) which identified certain specific documents that the Claimants contended the Defendant was required to disclose (“the October Documents”).[23]On 23 October 2023, the parties agreed to vacate the CPR 71 questioning hearing listed for that day. A consent order to that effect was drawn up and sealed by Deputy Master Bard on 23 October 2023 itself (“the Bard Order”).[24]The Bard Order is one of the orders that the Claimants say the Defendant has not complied with, and in respect of which the Claimants are seeking the Court to exercise its powers under CPR 71.8. The Bard Order provided, amongst other matters, as follows:
“AND UPON the Order of Master Sullivan dated 4 July 2023 requiring the Defendant to attend at Court on 23rd and 24th October 2023 for questioning pursuant to CPR Part 71 and to produce certain specified documents for the purposes of that questioning ... IT IS HEREBY ORDERED BY CONSENT THAT: (1) The CPR Part 71 hearing on 23rd and 24th October 2023 be adjourned and relisted for the first available date after 1 December 2023, with a time estimate of 2 days (including half a day of reading time). (2) The parties are to apply to the Court for the relisting of the adjourned CPR Part 71 hearing by 4pm on 26th October 2023. (3) The Defendant is to provide disclosure to the Claimants of all the documents identified in Stephenson Harwood LLP’s emails to Quinn Emanuel Urquhart & Sullivan UK LLP on 16th October 2023 (timed at 17.37 and 19.20 hours); 17th October 2023 (timed at 20.19 hours); and 18th October 2023 (timed at 16.57 hours) by 4pm on 6th November 2023.”

IT IS HEREBY ORDERED BY CONSENT THAT:

[25]The Bard Order therefore contemplated disclosure of the October Documents but in advance of a CPR 71 hearing.[26]The Defendant did not provide the October Documents by 6 November 2023 as required by the Bard Order (something formally recorded in the Court’s order of 9 November 2023). The Court granted the Defendant a final extension of time for the provision of these documents until 15 November 2023, on terms that if the Defendant failed to provide the October Documents by that date, the Claimants would have the right to seek an order referring the matter to the High Court under CPR 71.8.[27]No documents of any sort were disclosed by the Defendant on or prior to this deadline (as formally recorded in the Court’s order of 22 February 2024).[28]On 22 February 2024, Cockerill J made an order granting the Defendant a final extension of time for provision of the October Documents until 18 March 2024. Again, this was on terms that if the Defendant failed to provide the documents, the matter could be referred to the High Court pursuant to CPR 71.8.[29]On 31 March 2024, Deputy Master Alleyne ordered by consent that the Defendant was to have another “final” extension of time for the provision of the October Documents until 10 June 2024. This order was also made expressly on terms that if the Defendant failed to provide the October Documents, the matter could be referred to the High Court pursuant to CPR 71.8.[30]The Defendant failed to comply with the 31 May 2024 order, and did not provide any documents on or prior to 10 June 2024 (as recorded in the Court’s order of 13 June 2025).[31]The matter laid dormant for about 12 months until 30 May 2025 when SH applied to the Court to have the hearing for the Defendant’s questioning relisted and sought an order that the Defendant:(1) Provide the October dates by 20 June 2025; and(2) Immediately provide the Claimants with any documents provided to a third party, ADS Securities LLC (“ADS”) in a separate set of proceedings (the “ADS Documents”).[32]On 13 June 2025, Master Thornett made an order (“the Thornett Order”) which provided that:(1) The hearing for the Defendant’s questioning be relisted for first available date after 1 July 2025.(2) The Defendant was to have a final extension of time to provide the October Documents until 20 June 2025. To the extent that the Defendant failed to provide the October Documents by 20 June 2025, the Claimants were to have the right to seek a referral of the Defendant’s non-compliance to a High Court Judge pursuant to CPR 71.8;(3) The Defendant was to immediately provide the Claimants with the ADS Documents. Again, it will be seen that the order was for provision of documents in advance of the hearing for questioning.[33]On 19 June 2025, Richard Slade & Partners LLP (“RS”) came on the record as solicitors for the Defendant and sought an extension of time for provision of the October Documents and the ADS Documents. An extension of time until 28 June 2025 was agreed on 23 June 2025. On 27 June 2025, a limited number of documents were disclosed by the Defendant, specifically certain documents relating to:(a) the proceedings with ADS;(b) proceedings involving the Defendant with Heritage Travel and Tourism Ltd; and(c) proceedings involving the Defendant and Andreas Heeschen.[34]The Claimants wrote to the Defendant contending that he had failed to comply with his disclosure obligations under the Bard and Thornett Orders on 14 October 2025. No response was received to this message. On 25 October 2025, SH wrote to the Court asking it to refer the Defendant’s non-compliance to a High Court Judge under CPR 71.8.[35]On 28 October 2025, Jacobs J ordered that the Defendant’s failure to comply with the Bard and Thornett Orders was to be referred to a High Court Judge under CPR 71.8.[36]As required by CPR 71.8 (2), on 10 November 2025 the Claimants filed the first affidavit of Sean Gibbons which addressed the CPR 71.4 and CPR 71.5 requirements, with the affidavit setting out in some detail the steps the Claimants had taken to serve the various orders on the Defendant (at paragraphs 11 to 27 thereof).[37]On 23 December 2025, Henshaw J issued directions which noted that the Defendant had provided the Claimants with certain documents on 27 June 2025. In the light of the fact that some disclosure had been provided by the Defendant, the Court stated that it would need evidence which established that the Defendant had breached the Bard and Thornett Orders (and that the Defendant knew of the facts which made his conduct a breach).[38]The Claimants sought to address this point via the Second Affidavit of Sean Gibbons which was served on 23 January 2026.[39]Thereafter, Henshaw J directed on 6 February 2026 that the parties exchange submissions on the question of whether there should be a hearing to determine if a suspended committal order should be made against the Defendant pursuant to CPR 71.8.[40]Those submissions were duly exchanged and then on 23 February 2026, Henshaw J made the directions which led to the present hearing that I have already identified and quoted from at the outset of this judgment. THE PRESENT HEARING

C.1 Legal Principles in Relation to Contempt

[41]Each party addressed the legal principles in relation to contempt and applications both generally and in the context of CPR 71. Whilst these are most relevant to Issue 2, they also place CPR 71 (and a summary regime under CPR 71.8) in context, as compared to the committal procedure for contempt of court under CPR 81.[42]For present purposes, it suffices to note that the following legal principles are relevant when considering whether to find an individual in contempt of Court:(1) There is a strong public interest in the enforcement of court orders: Vik v Deutsche Bank AG [2019] 1 WLR 1737 (CA) Gross LJ at [57];(2) A committal application must be proportionate and pursuant for legitimate ends (see Navigator Equities Ltd v Deripaska [2022] 1 WLR 3656 (CA) (“Navigator”) per Carr LJ (as she then was) at [82(i) and (ii)];(3) A respondent has a right to silence, and a high standard of procedural fairness is required (see Navigator at [79] – [80];(4) For contempt and alleged breach of a Court order, the applicant must prove to the criminal standard that: (i) the respondent had proper notice of the order (see Navigator at [82(ix)]; (ii) there was a clear breach of the terms of the order (see Navigator at [82(ix)]; and (iii) the respondent deliberately intended to commit the act which amounted to a breach of the order (see Navigator at [82(vii)];(5) An applicant also needs to show that the order breached was clear and unambiguous in its terms with the order being strictly construed (see Navigator at [82(iv) and (ix)]; and(6) Each element of a charge of contempt, and any intermediate fact which is an essential or necessary element of that charge, must be proved to the criminal standard (beyond reasonable doubt): see Masri v Consolidated Contractors International Co SAL [2011] EWHC 1024 (Comm), Christopher Clarke J at [146].[43]In relation to orders for contempt under CPR 71 specifically:(1) CPR 71 is intended to constitute a summary or streamlined process which can be adopted where establishing the alleged contempt is straightforward (Deutsch Bank v Vik [2018] EWCA Civ 2011 (“Vik”) at [30]-[32]). It can be used not just where the judgment debtor fails to attend Court, but equally where the non-compliance consists of a failure to provide documents (Punjab National Bank (International) Ltd v Dr Rahul Nanda [2023] EWHC 3201 (Ch) at [30] and [34]. However, it has been said that CPR 71.8 is “... geared to simple straightforward cases” (see Vik at [46]).(2) The more detailed procedure under Part 81 will be required for more complex cases where the Court is required to make a detailed evaluation of the debtor’s compliance (see Westrop v Harrath [2024] 1 WLR 2645 at [20]-[21] (“Westrop”). The use of CPR 71.8 certification procedure for such cases where there is alleged and disputed nondisclosure or lying under oath has been said to be “singularly inappropriate” (see Vik at [45]).(3) A reference under CPR 71.8 is too serious a step to be undertaken as a matter of routine. The Court has three options namely: (i) If satisfied to the criminal standard the debtor’s failure to attend or to answer questions was intentional, the judge may make a suspended committal order; (ii) If not satisfied, the judge can adjourn consideration and give directions for a hearing or adjourn for further evidence; (iii) Alternatively, the judge can decide not to make a committal order, and instead make a further order for the debtor’s attendance at Court, which may also include “...recital which, in the light of the background, stresses the possible consequences of further non-attendance even more clearly to the debtor” (see Westrop at [24] citing Broomleigh Housing Association Ltd v Okonkwo [2011] HLR 5).

C.2 Issue 1 - Is CPR 71.8 engaged?

[44]The relevant part of CPR 71.8 provides as follows:
“(1) If a person against whom an order has been has been made under rule 71.2‒ (a) fails to attend court; (b) refuses at the hearing to take the oath or to answer any question; or (c) otherwise fails to comply with the order, the court will refer the matter to a High Court Judge or Circuit Judge.” (a) fails to attend court; (b) refuses at the hearing to take the oath or to answer any question; or (c) otherwise fails to comply with the order, the court will refer the matter to a High Court Judge or Circuit Judge.”
[45]It is said that the Defendant failed to comply with the Bard and Thornett Orders. Accordingly, the critical question for present purposes is whether those orders were made “under rule 71.2”. If they were, then the Claimants submit that CPR 71.8(1)(c) is engaged. If they were not, then clearly CPR 71.8(1)(c) is not engaged.[46]CPR 71 provides at CPR 71.1 as follows:
“Scope of this Part 71.1 This Part contains rules which provide for a judgment debtor to be required to attend court to provide information, for the purpose of enabling a judgment creditor to enforce a judgment or order against him.”
(emphasis added)[47]It is clear, therefore, that CPR 71 is concerned with requiring the judgment debtor to attend court to provide information (as addressed in CPR 71.2(6)).[48]CPR 71.2 provides as follows: “(1) a judgment creditor may apply for an order requiring ‒(a) a judgment debtor; or(b) if a judgment debtor is a company or other corporation, an officer of that body, to attend court to provide information about ‒ (i) the judgment debtor’s means; or (ii) any other matter about which information is needed to enforce a judgment or order ... (3) The application notice must ‒ (a) be in the form; and (b) contain the information required by Practice Direction 71” (a) a judgment debtor; or (b) if a judgment debtor is a company or other corporation, an officer of that body, to attend court to provide information about ‒ (i) the judgment debtor’s means; or (ii) any other matter about which information is needed to enforce a judgment or order ...[49]I interject at this point that there is a form that is required by Practice Direction 71, and that is Form N316 which is entitled “Application for order that the debtor attend court for questioning (10.20)”. That standard form which is headed “Application for order that debtor attend court for questioning” provides, amongst other matters, as follows:
“The [claimant] [defendant] applies for an order that the [defendant] [claimant] (‘the judgment debtor’) attend court to provide information about the judgment debtor’s means and any other information needed to enforce the judgment or order given.”
(emphasis added)[50]The form also contains a note about questioning and documents, and that provides:
“Questioning and documents Questioning will be by a court officer unless a judge agrees there are compelling reasons for questioning to take place before a judge. Normally the court officer will ask the questions set out in Form EX140 and the judgment debtor will be told to produce all relevant documents including…” (Emphasis added)
There is then a list of bullet points in relation to various documents.[51]As Mr Smith KC candidly acknowledged during the course of his oral submissions, Form N316 firstly contemplates attendance at court to provide information, and also that the documents will be provided at Court. The mandatory form that is predicated and required by CPR 71.2(3) does not mandate, or indeed even contemplate, the possibility of any order being made in advance of that hearing in relation to advanced disclosure of documentation. That is no doubt why the Claimant needed to issue, and indeed did issue, a separate application under form N244(CC). I will need to return to that point in due course.[52]CPR 71.2(6) provides as follows:
“(6) A person served with an order issued under this rule must ‒ (a) attend court at the time and place specified in the order; (b) when he does so, produce at court documents in his control which are described in the order; and (c) answer on oath such questions as the court may require.”
(emphasis added) (a) attend court at the time and place specified in the order; (b) when he does so, produce at court documents in his control which are described in the order; and (c) answer on oath such questions as the court may require.” (emphasis added)[53]The Claimants submit as follows:(1) CPR 71.2 provides that an order made under CPR 71.2 (1) may/will identify or describe certain documents that the judgment debtor is to produce. It is true to note that CPR 71.2(6)(b) envisages that those documents will be produced at the hearing where the questioning is to take place. The first question arising therefore is where the court orders the documents are to be provided in advance of that hearing, does that mean that the relevant order has not been made under CPR 71.2? The Claimants submit that the answer to this question should be “no”.(2) The Court has the power to shorten the time for compliance with any rule in the CPR (see CPR 3.1(2)(a). Accordingly, where a Court makes an order requiring a judgment debtor to attend Court for questioning under CPR 71 and requires that debtor to provide documents in advance of the hearing, it should be regarded simply as having exercised its powers under CPR 3 in relation to CPR 71.2. There is nothing in CPR 71 to suggest that such an order cannot be made under CPR 71.2 and, as the facts of this case demonstrate, there will often be good reasons for the making of such an order. In this regard it is noted that in Punjab National Bank (International) Ltd v Dr Rahul Nanda, the judgment debtor was required to disclose certain documents in advance of his questioning (see at [70]).(3) The Court has no power to order a judgment debtor to provide disclosure about its assets other than that contained in CPR 71.2. Accordingly, unless the Court has the power under that section to require a judgment debtor to provide documents in advance of a hearing for questioning about his assets, the Court has no such power. It is said that this must be highly doubtful.(4) There is no good reason for treating an order that the judgment debtor produce documents in advance of its questioning hearing as falling outside CPR 71.2. Indeed, to do so could have unfortunate consequences for wealthy individuals with complicated financial affairs. It will usually be necessary to require disclosure of documents relating to their assets to be made in advance of the hearing. If an order for advance disclosure is not to be regarded as one made under CPR 71.2, then it would potentially create one rule for wealthy judgment debtors and one for less well-off judgment debtors (who have just been ordered to provide the relevant documents at the questioning hearing). This is because the former individuals would not be amenable to the Court’s jurisdiction under CPR 71.8 if they failed to comply with the disclosure order, whereas the latter would. This cannot be right, bearing in mind the fact that CPR 71.8 is, unlike CPR 81, meant to provide for an automatic finding of contempt without the judgment creditor having to go through the more formal procedure under CPR 81.(5) The Court has treated an order made at a CPR 71 hearing to produce documents subsequent to that hearing as one made under CPR 71.2 for the purpose of CPR 71.8 (see Farrer & Co LLP v Meyer [2022] EWCA Civ 706 at [35(7)], [42] and [50]). It is submitted that this shows an order can be made under CPR 71.2 for the production of documents at a time other than at the CPR 71 questioning hearing itself. If this is right as regards an order to produce documents after the CPR 71.2 hearing, then there is no reason why the same cannot/should not be true of an order to produce documents before the hearing.(6) The only remaining question is whether the Bard and Thornett Orders were in fact orders made under CPR 71.2. It is said that the answer to this must be “yes” on a consideration of the chronology of events as addressed in the Claimants’ Chronology.(7) The Court should therefore conclude that the Bard and Thornett Orders were made pursuant to CPR 71.2 where the consequence of the Defendant’s failure to comply with them engages its powers under CPR 71.8.[54]In contrast, the Defendant submits as follows: (1) The obligation of persons served with a Part 71 order as set out at 71.2 (6):
“(6) A person served with an order issued under this rule must ‒ (a) attend court at the time and place specified in the order; (b) when he does so, produce at court documents in his control which are described in the order; and (c) answer on oath such questions as the court may require.”
(emphasis added) (a) attend court at the time and place specified in the order; (b) when he does so, produce at court documents in his control which are described in the order; and (c) answer on oath such questions as the court may require.” (emphasis added) Nothing in this rule permits a creditor to ask that documents are produced at any other time or that the Court may make such an order or that a debtor is required to comply with such an order. (2) Where a judgment debtor fails to attend or refuses to take the oath or answer any question or “otherwise fails to comply with the order”, the Court must “... certify in writing the respect in which the judgment debtor failed to comply with the order” (PD 71.6) and must refer the matter to a judge under CPR 71.8 to consider whether to hold the debtor in contempt. (3) The effect of an order under CPR 71.2 is that the debtor is required to attend court on a particular date and when he does so to produce the documents in his control described in the order. There is no ability under Part 71 to require the production of documents at any other time. (4) In the present case, the Claimants have asked, for their convenience, for orders that documents are produced in advance for the relevant hearings. Successive judges have granted these requests often by consent, and have ordered that the Defendant must produce documents on dates prior to the relevant hearings. These orders fall outside the Part 71 regime and take effect as simple orders because CPR 71.2(3)(b) requires an application to be made on the standard form (N316). This seeks an order that the debtor is to produce relevant documents at a hearing. The Claimants make their application for Part 71 order using that form. The application for a Part 71 order is that part of any application which relates to Form N316. That is clear because Form N316 tracks the language of CPR 71.2 and contemplates that any provision of documents will be in relation to and at the attendance. Rule CPR 1.2(3)(b) itself demonstrates vividly that any order for disclosure that is sought at the same time as seeking an order under Part 71.2 is not an order under 71.2, but is a form for additional relief and would require a different application notice. Mr West points out that this was rightly recognised by the Claimants in this case because, as I have already foreshadowed, they issued a separate application under Form N244. Mr West submits that that is illustrative and informative. The Claimants thereby clearly recognised rightly that they had to go outwith the correct form for a Part 71 application, and the relief that they were seeking was not a Part 71 order in terms of that relief but a separate order relying upon an N244 application. That separate relief sought on the N244 application is not within CPR 71.2. (5) The relief granted (e.g., by paragraph 2 of the Thornett Order) required the Defendant to produce documents prior to the hearing. This goes beyond the requirements placed on a person served with a Part 71 order and a CPR 71.2(6). It is not, therefore, an order made under Part 71 at all. (6) Insofar as the Defendant was ordered to produce documents in advance of hearings, he is not a person against whom an order was made under Part 71.2 and does not fall within the scope of Part 71.8(c) for any failure to comply with that order. It follows that there is no relevant breach which should be referred for consideration for committal. (7) The Defendant would still be in breach of the Court’s orders for a production of documents. But whilst this is a serious matter (potentially leading to committal under CPR 81), it is not one for which a summary committal order under Part 71 can be made. D. DISCUSSION[55]I am satisfied that the Defendants are right in their submission that CPR 71.8 is not engaged, and the reason for that is to be found in the proper construction of CPR 71.1, 71.2(2), 71.2(3) and 71.2(6), and in particular, in relation to the proper construction of CPR 71.2(6)(a)-(c) itself.[56]I have already quoted from CPR 71.1 which clearly shows that Part 71 contains rules which provide for a judgment debtor to be “required to attend” Court to provide information. That is the overall gravamen of what Part 71 is about.[57]One then looks at CPR 71.2(1) itself, which it will be recalled provides as follows:
“(1) A judgment creditor may apply for an order requiring ‒ (a) a judgment debtor; or (b) if a judgment debtor is a company or other corporation, an officer of that body, to attend court to provide information about ‒ (i) the judgment debtor’s means; or (ii) any other matter about which information is needed to enforce a judgment or order.”
(emphasis added) (a) a judgment debtor; or (b) if a judgment debtor is a company or other corporation, an officer of that body, to attend court to provide information about ‒ (i) the judgment debtor’s means; or (ii) any other matter about which information is needed to enforce a judgment or order.” (emphasis added)[58]So what CPR 71.2(1) is about is applying for an order(1) to attend Court(2) to provide information about the subject matter of (i) and (ii). It is all about an order to attend Court, and the purpose is for the judgment debtor to attend Court to provide information, and the provision of information is predicated upon the attendance at Court, and what is contemplated is the provision of information at Court.[59]CPR 71.2 identifies what the information will be about(i) the judgment debtor’s means or(ii) any other matter about which information is needed to enforce a judgment or order. CPR 71.2 is not concerned with the provision of information at any other time, and any other order that orders production of information in advance of that time is not an order under CPR 71.2, but an order in contemplation that there will be a CPR 71.2 hearing together with a (separate) order in relation to provision of documentation.[60]That can also clearly be seen and is further evidenced by the terms of CPR 71.2(3) which it will be recalled provides:
“(3) The application notice must ‒ (a) be in the form and (b) contain the information required by Practice Direction 71.”
[61]It is clear from that that the application notice is to contain those matters which are the subject matter of an order under CPR 71.2. That form is the Form N316 as I have already identified and quoted from, and it is mandatory that an application is on that form and contains that order. It is self-evident, therefore, that it is the matters which have to be within that form and containing that information which is what is required by the Practice Direction for the purpose of an order under CPR71.2, and a CPR 71.2 order is an order made in relation to such an application notice. That does not include and does not extend to the further order that was sought in the present case, which is an order for advanced disclosure.[62]As I have already noted, this was candidly acknowledged and recognised by the Claimants both in relation to the first application and the letter from a company within the Claimant group of 13 August and associated Footnote 1 that I have already quoted, and expressly recognised and acknowledged in the email of 19 June 2023 in relation to the second application (which is the application before me) which expressly attaches both an application notice N244(CC) and secondly an application notice to attend court (N316) which again shows that dichotomy. And the difference between that part of any order (which is the order under Form N316 which is the CPR 71.2 order) and any other order for ancillary relief (under Form N244(CC), shows that these are separate orders, and the second form is seeking a separate order (separate from any relief being sought under 71.2) and as such it requires a separate application notice, which itself shows that it is separate from the section 71.2 application.[63]Yet further, and importantly, are the provisions of CPR 71.2(6)(a) to (c). I will repeat them below for ease of reference and discussion. In doing so, I highlight those parts which are of importance in the context of the issue that arises:
“(6) A person served with an order issued under this rule must ‒ (a) attend court at the time and place specified in the order; (b) when he does so, produce at court documents in his control which are described in the order; and (c) answer on oath such questions as the court may require.”
(emphasis added)[64]The first point to make, and to note is that it is CPR 71.2(6) that contains the mandatory provision that must be complied with and which gives rise to the contempt jurisdiction. The language of CPR 71. 2(6) is mandatory (“a person ... must”).[65]This was accepted by Mr Smith KC during the course of his oral submissions. However, in his reply submissions (perhaps seeing in which direction the weather was blowing), he resiled from that submission and submitted that CPR 71.2(6) was “just an information paragraph”.[66]I reject such a submission. As the language shows (and as was also submitted rightly, in my view, by Mr West) it is the mandatory language in CPR 71.2(6) which gives rise to the engagement of CPR 71.8 and, as will be seen in due course, there is a direct correlation in that regard between CPR 71.2(6)(a) to (c) and CPR 71.8.[67]Returning first to CPR 71.2(6), what must the respondent do? First, they must “(a) attend court”. So all that follows is predicated on their mandatory attendance at Court itself. The second thing they must do only arises when they are at Court (as shown by the words “when he does so”. Thirdly, as to what they must do (when at Court), they must “produce at court” the documents in his control. It could not be clearer that the mandatory obligation only (relates for the purposes of CPR 71.2) to the production at Court when a debtor is at Court in compliance with his mandatory obligation to attend at Court. Fourthly, when the debtor attends at Court, he must answer on oath such questions as the Court may require.[68]These are, I am satisfied, the mandatory orders that, if not complied with, engage CPR 71.8. That can be seen from the language of CPR 71.8(1) itself:
“(1) If a person against whom an order has been made under Rule 71.2 ‒ (a) fails to attend court; (b) refuses at the hearing to take the oath or to answer any question; or (c) otherwise fails to comply with the order, the court will refer the matter to a High Court Judge or Circuit Judge.” the court will refer the matter to a High Court Judge or Circuit Judge.”
[69]It will be seen immediately that what triggers the reference to a High Court Judge or Circuit Judge is not the fact that there is a person against whom an order has been made under Rule 71.2 (that is a necessary but not sufficient condition), but rather that the person against whom an order has been made under Rule 71.2 has done one (or more) of three things which track precisely CPR 71.2(6)(a) to (c).[70]In this regard, CPR 71.8(1)(a) correlates with CPR 71.2(6)(a), CPR 71.8(1)(b) correlates with CPR 71.2(6)(c), and CPR 71.8(1)(c) encompasses that which is within CPR 71.2(6)(b).[71]I reject the submission made by Mr Smith KC in his reply submissions that the provisions in CPR 71.2(6) are simply an information paragraph, and that the operative paragraph which would give rise to any contempt application and a triggering of Rule 71.6 are the early provisions in CPR 71.2 which is an order requiring, etc. That submission does not give meaning and effect to the provisions in CPR 71.2(6), and also ignores the fact that the order that is being applied for under CPR 71.2 is the order which, as CPR 71.2(3) provides, is an application for such an order which must be(a) in the form and(b) containing information required by the PD 71 which is, of course, the Form N316 order which tracks the language of CPR 71.2 and deals with the very matters which are addressed at 71.2(6)(a) to (c).[72]Accordingly, CPR 71.8 is not engaged in the present case. An order under CPR 71.2 is one that requires a judgment debtor to attend at Court and, when he does so, to produce documents in his control described in the order. That is not what any of the orders under consideration required. In particular, the defence obligation to provide documents was not one to produce them upon attendance at court.[73]Accordingly, and whilst the Defendant was obliged to produce documents under the N244 form (for the purposes of the CPR 81 committal jurisdiction), his failure to do so does not result in him breaching any of CPR 71.2 (6)(a) to (c), nor indeed the subject matter of the Form 316 application notice which was the basis for the 71.2 order. Accordingly, the summary contempt procedure under CPR 71.8 is not engaged.[74]In this regard, none of the arguments raised by the Claimants justify interpreting CPR 71.2 in a manner that is contrary to its clear and unequivocal language and meaning.[75]First, the suggestion that where a Court makes an order requiring a judgment debtor to attend Court for questioning under CPR 71, and requires that debtor to provide documents in advance of the hearing, it should be regarded simply as having exercised its powers under CPR 3 in relation to CPR 71.2 (to abridge time) would do violence to the wording of CPR 71.2(6) itself and is not warranted. Yet further, such approach would be contrary to the express language of CPR 71.2(3) and the requirement that the requisite application notice which gives rise to the 71.2 order must be in the form and contain the information set out in Form N316. Form N316 does not contemplate the possibility of ordering documents in advance of the hearing, and that is for the very simple reason that that is not contemplated by, or part of, the jurisdiction under CPR 71.2. Yet further, and given the consequences for breach of CPR 71.2(6), it should be applied in accordance with its express terms. A Defendant should not face the risk of committal for contempt under a summary procedure by “implicit” variation (and narrowing) of the time for compliance.[76]Secondly, it is a bootstraps argument to suggest that the Court has no power to order a judgment debtor to provide disclosure about his assets other than that contained in CPR 71.2 and then say it is highly doubtful that the Court does not have a power under that section to require a judgment debtor to provide documents in advance of a hearing for questioning about its assets. Although it does not arise for determination, it may be that the Court has such a power as part of its case management powers in the context of the fact that there is going to be an envisaged future hearing under CPR 71.2. But that does not mean that the consequences of failure to provide documents in the context of such an order are those in CPR 71.8 triggered by CPR 71.2(6) when those orders made are not those contemplated under CPR 71.2(3) (which do not extend to the provision of documents other than at attendance at the hearing). Nor would it be a “hollow” order as alleged. Any breach of an advance disclosure order would be a serious matter that could be policed through the CPR 81 contempt regime.[77]Thirdly, there is good reason for treating an order that the judgment debtor produce documents in advance of the questioning hearing as falling outside CPR 71.2, as CPR 71.2 should be applied in accordance with its express terms, and such a separate disclosure order will carry with it, its own enforcement regime. The alleged unfortunate consequences do not bear examination. If it is the case that for wealthy individuals with complicated financial affairs it will usually be necessary to require disclosure of documents relating to their assets to be made in advance of the hearing, the summary regime under CPR 71.8 may be less appropriate, given that issues may arise as to the adequacy of disclosure and compliance, and such cases may be best policed by CPR 81; whilst the CPR 71.2(6) regime policed by CPR 71.8 may be more appropriate in simple cases in relation to judgment debtors whose affairs can clearly be established by documents produced at the hearing. That is not to say that the CPR 71.2 procedure cannot be used in more complex cases (subject to bearing in mind the sentiments expressed in the various authorities I have cited), but in such cases it is still necessary to follow the CPR 71 structure, if there is to be enforcement under CPR 71.8.[78]Fourthly, the fact that the Court has treated an order made at a CPR 71 hearing to produce documents subsequent to that hearing as one made under CPR 71.2 for the purposes of CPR 71.8 (if that is what is done in Farrer & Co LLP v Meyer [2022] EWCA Civ 706) is not in point.[79]In this regard, that is not the situation under consideration, but in any event, no violence is done to CPR 71.2 by such a course. If the judgment debtor attends the hearing, it is clearly open to the Court, upon such attendance, either then to allow more time to produce the documents or further documents (if there is a good justification), or to adjourn the whole hearing to a later date if appropriate and for whatever reason. This can be seen from both the first instance judgment and that of the Court of Appeal. In fact, I consider that the position both at first instance and in the Court of Appeal is more nuanced that it was portrayed in the course of the Claimants’ submissions.[80]It is clear from the first instance judgment (Farrer & Co LLP v Meyer [2022] EWHC 362 (QB), a decision of Kerr J) that the original order was as he says:
“18. …On 20 January 2020 the court issued a standard order under CPR Part 71, endorsed with two penal notices in bold, underlined capitals, stating the amount owed was now just over £199,000 and ordering the defendant to attend at the Royal Courts of Justice on 5 March 2020 to provide information about her means for the purposes of enforcement.” 19. The order explained that the defendant would be ordered to produce documents to the court and answer questions on oath.”
And then there is a reference to the penal order. As Mr Smith KC acknowledged, that was, as it was put, a “bog standard” CPR Part 71.2 order.[81]What subsequently happened is (as can be seen from [40]), that there was a subsequent adjourned Part 71 oral examination before Heather Williams J on 25 October 2021. The defendant did attend, obedient to a prior order of HHJ Simpkiss, and she took an affirmation over a video link and was questioned by counsel about means and assets. Then at [42] and [43], it is recorded as follows:
“42. Heather Williams J’s order recorded that the defendant gave evidence of her means and agreed to supply certain documents. The order started with yet another fearsome penal notice, in bold unlined capitals. The defendant was probably used to these by now. 43. The judge’s order gave her until 15 November 2021 at 4pm to provide those documents she had agreed to provide, and certain other documents over and above those she had agreed to provide.”
[82]Stopping there, it appears that in fact that case was simply one where there had been a standard order, the judgment debtor had attended, they had given evidence on oath and in the course of that, no doubt perhaps as a result of questioning or whatever, they were ordered to produce further documents. That would appear to be nothing out of the ordinary, there already having been a hearing. It is relatively common for further orders to be made after the initial hearing. The point that is made by Mr Smith KC is that the judge ordered the documents to be provided by a certain date, as opposed to at an adjourned hearing.[83]When the matter came before Kerr J, he was considering whether the defendant should be subject to a sanction for breach of the order of Heather Williams J. He then said this:
“156. … [counsel] submits as follows. 157. First, he says that the order of Heather Williams J was made pursuant to rule 71.2. In oral submissions, in response to an intervention from me, querying that, he submitted, in the alternative that the original order to attend made on 20 January 2020 was the relevant order under rule 71.2.”
[84]It appears that that Kerr J may have had the same concerns or at least he may have considered that the situation gave rise to similar considerations, to those expressed by Henshaw J when he gave directions and that I have addressed during the course of the hearing today, the alternative basis being on the basis that it was the original standard order and effectively, there having been a hearing, these were simply consequential orders that were made pursuant to that original order. As will be seen, it was in fact the latter approach which seems to have found favour with the Court of Appeal and Males LJ when giving his judgment. This can be seen from [42]:
“42. The one point which was made and which is therefore open, that the hearing before Mr Justice Kerr was not a hearing under CPR 71, was hopeless. Although there were other matters to be dealt with, it was a hearing pursuant to a direction given by Mr Justice Robin Knowles that consideration should be given to the consequences of and steps to be taken in respect of non-compliance with the order made by Mrs Justice Heather Williams, which was itself an order made at the adjourned examination under CPR 71. The whole course of the proceedings which I have described were pursuant to CPR 71 and were initiated by the order requiring Ms Meyer to attend for examination on 5th March 2020 which (as she has not disputed) was validly served upon her.”
[85]So, it appears that Males LJ, like Kerr J before him, was proceeding on the basis that the proceedings under consideration originated back to the order in standard terms under CPR 71.2 that the defendant attend and, when attending, give evidence and provide documentation. It may be therefore that, set against that background, there was nothing out of the ordinary about the order that was made by Heather Williams J. And indeed, when Males LJ comes to consider the point about an order under CPR 71.2, he says this at [50]:
“50. I have already rejected the submission that the order of Mr Justice Heather Williams, with which Ms Meyer failed to comply, was not an order made under CPR 71.2.”
[86]It is clear that when Male LJ refers to “I have already rejected the submission”, that is what he has said at [42] and, in particular, that the whole course of the proceedings were pursuant to CPR 71 and the order requiring Ms Meyer to attend on 5 March 2020 (i.e. a CPR 71 order in the standard terms), and everything that followed at, and from, the oral hearing were consequential orders made consequential upon the hearing itself.[87]Fifthly, the Claimants’ final question (whether or not the Bard and Thornett Orders were in fact orders made under CPR 71.2) is not relevant if, as I have found, any such orders were not orders compliant with CPR 71.2(6) for the purpose of CPR 71.8. This was accepted by Mr Smith KC at the outset of the hearing. It matters not whether the context of the making of such orders was an envisaged CPR 71.2 hearing if the requisite procedure was not followed for the purpose of triggering CPR 71.8. For the reasons that I have identified, it was not.[88]Accordingly, and for the reasons set out above, I am satisfied that if, as here, disclosure is ordered in advance of a CPR 71.2 hearing, such an order is not an order within CPR 71.2 or 71.2(6), and the failure to comply with such an order may be a breach exposing a debtor to committal for contempt under CPR 81 but does not engaged the simplified procedure in CPR 71.8. As CPR 71.8 is not engaged, Issue 2 does not arise.[89]The next question, in circumstances where the defendant has failed to provide documents that he has been ordered to provide, is as to the appropriate way forward (Issue 3). I will hear from the parties as to the detail of the directions to be made, but I am satisfied that the appropriate way forward is the making of a CPR 71 order requiring the Defendant’s attendance at a hearing.