Read the full judgment text of CACV 000217/2002 on BabelCite. This Court of Appeal judgment was delivered on 12 June 2002 before Stock JA, Seagroatt J, Sakhrani J.
Civil contempt of court – committal for breach of mandatory injunction – delivery up of confidential client documents – insurance agent wrongfully removed client lists, proposals, white cards and application forms from former employer – ex parte injunction by Yeung J on 14 November 2000 requiring delivery up by 5pm on 16 November 2000 – defendant delivered documents only partially and after deadline – Judge Muttrie by consent on 17 November 2000 extended time to 27 November 2000 – variation order not personally served and not endorsed with penal notice – defendant failed to deliver remaining documents and made false affirmations of compliance – first issue whether variation order had to be personally served on defendant and endorsed with penal notice for subsequent committal order to be valid – held personal service of variation order required under RHC Ord 45 r7(5) but no separate penal notice required on variation where first order was properly endorsed and served personally – following Treherne v Dale and In re Seal – committal properly based on first order as varied – second issue whether Court of Appeal has power retrospectively to dispense with personal service of variation order and with penal notice requirement – held court has unfettered discretion under RHC Ord 45 r7(7) to dispense with service retrospectively, and such power extends to dispensing with penal notice – following Davy International Ltd v Tazzyman, Hill Samuel & Co Ltd v Littaur, Turner v Turner, Excel Noble Development Ltd v Wah Nam Group and Jolly v Hull – Court of Appeal has further power under s.50(3) High Court Ordinance and Ord 59 r10 to make any order that ought to have been made, including retrospectively dispensing with service – following M v P and Nicholls v Nicholls – third issue whether sentence of two months' imprisonment for civil contempt was manifestly excessive – held not excessive and if anything light given wilful proactive contempt with no remorse – defendant had lied to court, attacked credibility of witnesses, and called witnesses known to her to be false – defendant had not purged contempt and continued to use documents to solicit AXA clients months after order made – appeal against committal and against sentence dismissed – defendant to surrender to custody by noon 22 June 2002 – committal order of two months' imprisonment on each of four proven grounds, all to run concurrently, upheld – plaintiffs' costs of appeal on party and party basis, to be paid forthwith – order for costs in court below to stand
Legal issues: Whether the variation order of 17 November 2000 had to be personally served and endorsed with a penal notice for the subsequent committal order to be valid · Power of the Court of Appeal to dispense retrospectively with personal service and penal notice · Whether the sentence of two months' imprisonment for civil contempt was manifestly excessive
Outcome: Appeal against the committal order and against the sentence of two months' imprisonment dismissed; the Court of Appeal retrospectively dispensed with personal service of the variation order of 17 November 2000 and with the requirement of a penal notice, and upheld the committal order
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