PI Brief Update

The failure to pay costs is not a contempt enforceable by committal to prison - Nancy Kelehar, Temple Garden Chambers

25/07/24. Smith v Kirkegaard [2024] EWCA Civ 698

Date of Judgment: 21/06/2024

The history between the parties to this appeal dated back to January 2018 when Mr Smith published a tweet that referred to Mr Kirkegaard. Mr Kirkegaard brought a claim for libel against Mr Smith in respect of four publications, including the tweet, which described Mr Kirkegaard as a supporter of child rape or paedophilia. Ultimately, Mr Kirkegaard discontinued his claim in May 2020 meaning that Mr Smith was entitled to his costs of the action. The costs orders made against Mr Kirkegaard totalled £50,490.20.

In June 2023, Mr Smith made a contempt application, which included the alleged contempt of failure to pay the costs orders. Subsequently, Mr Smith did not (or could not) comply with the directions made and the contempt application was dismissed in October 2023.

Mr Smith applied for relief from sanctions on the basis that he could not comply with the directions as it was impossible to effect personal service on Mr Kirkegaard, That application was refused without a hearing for the reason that the contempt application was bound to fail as Mr Smith had no reliable method of communicating with Mr Kirkegaard and so the court could not be sure that the proceedings had come to his attention. It was also stated that the Defendant’s failure to pay costs cannot be enforced by contempt proceedings.

When permission to appeal was granted by Warby LJ in March 2024, he referred to some Australian cases about contempt proceedings relating to non-payment of costs orders. One of the issues for the Court of Appeal to determine was whether the failure to pay costs can be enforced in contempt proceedings.

Mr Smith relied upon the Australian authorities to submit that the court may treat a deliberate failure to pay a judgment debt as contempt where the debtor had the means to pay. However, the appeal court stated that those authorities did not assist him as they relate to a different procedural and statutory regime.

The Court of Appeal stated that, in this jurisdiction, committals to prison for non-payment of judgment debts were, in effect, abolished by the Debtors Act 1869. The court referred to Halsbury’s Laws of England on s.4 of 1869 Act: ‘though default in payment of a sum ordered to be paid cannot be punished by committal, the default remains a contempt and the court has a discretion whether or not to allow the party in default to take any further proceedings in the action in which payment was ordered.’ Such discretion did not assist here and the court was of the view that s.4 and s.5 of the 1869 Act were inapplicable to non-payment of a costs order.

On this particular issue, the Court of Appeal held that whilst a failure to pay the costs may be a contempt of court, it cannot be enforced by imprisonment for contempt and the judge was right to conclude that the failure to pay costs could not be enforced by committal proceedings. The court referred to other remedies which have been developed to assist judgment creditors to enforce judgments, such as freezing orders.

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