This article provides an update on recent developments in the case, including the use of CPR 71 to examine Mr Yaxley-Lennon on his assets and liabilities (despite his bankruptcy) and the recent committal proceedings heard by Mr Justice Nicklin on 1 August 2022 following Mr Yaxley-Lennon’s failure to attend Court for cross examination on 22 March 2022.
The background to Burlingtons’ involvement in Jamal Hijazi -v- Yaxley-Lennon (AKA Tommy Robinson) is set out in a previous article which you can read by clicking here.
What is the purpose of CPR 71?
If a judgment debtor fails to pay a judgment debt, CPR 71 can provide a useful tool to test the judgment debtor’s reasons for being unable to pay. It allows the judgment creditor to compel the judgment debtor to provide documents in support of its assets and liabilities, and to attend for cross examination about their means. It therefore can allow the judgment creditor to acquire more information before deciding whether to incur further time and money attempting to enforce the Judgment against the judgment debtor and/or to identify those assets the judgment creditor may focus on during any enforcement process (for example, the process may reveal a property the judgment debtor has an interest in or shares in a company).
How does CPR 71 work practically?
Following a successful application by the judgment creditor, a judgment debtor is ordered to attend Court under CPR 71.2 to answer questions on oath and produce documents in their possession or control (as described in the Order) relevant to their financial means.
On 20 July 2020, Mr Yaxley-Lennon (the Defendant) submitted an application seeking permission to amend his Defence, in which he wished to advance a public interest defence. Following Judgment being handed down on 16 November 2020, Mr Justice Nicklin made an Order dated 26 November 2020 by which Mr Yaxley-Lennon was ordered to pay £43,293 of costs. He failed to pay anything by the deadline, 10 December 2020.
The Defendant, in a witness statement dated 21 December 2020, contended that he had “no assets of value.” In order to test this claim, Burlingtons submitted a CPR 71 application for an order that Mr Yaxley-Lennon attend Court in order to be examined about his means and any other information relevant to the enforcement of the judgment.
At the first planned examination on 16 March 2021, Mr Yaxley-Lennon publicly announced that he had been made bankrupt by Order dated 3 March 2021 upon his own application. Given the uncertainty surrounding the impact of his bankruptcy on the CPR 71 regime, the hearing was adjourned.
Examination and Contempt of Court
The legal hurdle before the Court was whether the CPR 71 proceedings alone amounted to enforcement of a judgment debt which, if so, may be contrary to Section 285(1) of the Insolvency Act 1986 (which can act to stay or halt any enforcement proceedings against a bankrupt). In those circumstances, the CPR 71 proceedings would not be able to continue.
The next CPR 71 examination was listed for 3 February 2022. Master Dagnall handed down his Judgment ex tempore in which he held that the CPR 71 examination could proceed despite the Defendant’s bankruptcy.
Master Dagnall emphasised that whilst Section 285(1) of the Insolvency Act 1986 empowers the Court to stay existing legal proceedings against a bankrupt individual (including CPR 71 proceedings), this section does not impose an automatic stay on such proceedings and, therefore, the Court may apply its discretion to allow the CPR 71 proceedings to continue.
The Judge accepted that the CPR 71 proceedings did not amount to enforcement because the proceedings simply amount to information gathering and no findings are made against Mr Yaxley-Lennon. Further, Master Dagnall acknowledged that if Mr Yaxley-Lennon was in fact solvent rather than insolvent as he claimed (bearing in mind that he was made bankrupt on his own application) then any information obtained during the CPR 71 proceedings would assist the creditors in deciding whether to bring an application to set aside the bankruptcy order. In other words, it was accepted that the CPR 71 proceedings could be used as a fact-finding process as to whether Mr Yaxley-Lennon had defrauded his creditors.
A new examination hearing was set for 22 March 2022 which Mr Yaxley-Lennon, again, did not attend. Master Dagnall subsequently made a referral to a High Court Judge (pursuant to CPR 71.8), for contempt of court directions. An initial contempt of court directions hearing took place on 6 May 2022, at which Mr Yaxley-Lennon was directed that the examination was to take place on 9 June 2022 and a further hearing was to be set on 1 August 2022 in order to deal with his claims that the reason he had not attended the previous hearings was owing to his mental health issues.
At the examination on 9 June 2022, counsel, Ian Helme of Matrix Chambers, was finally able to cross-examine Mr Yaxley-Lennon on his bankruptcy claims.
At the contempt of court directions hearing on 1 August, Mr Yaxley-Lennon was fined £900 (with a 10% “discount” from £1,000 for admitting guilt) and ordered to pay £20,000 of costs.
This article is provided by Burlingtons for general information only. It is not intended to be and cannot be relied upon as legal advice or otherwise. If you would like to discuss any of the matters covered in this article, please contact Dominic Holden or Luke Hackett, or write to us using the contact form below.