The Unopposable Application for a Penal Notice
Published: 18/01/2024 17:00
There are relatively few applications for a court order in financial remedy proceedings that cannot be opposed and which are bound to succeed. One is an application for a penal notice. As paragraph 59(c) of the Interim Report of the Financial Remedies Group dated 31st July 2014 stated:
'c. Penal notice.1 In a financial remedy case the applicant is entitled to the endorsement as of right, (a point which should be wider understood by judges and court staff). We consider that it is probably wise for each order to be endorsed with a penal notice at the time it is made (often orders are seen to say “a penal notice is attached to this paragraph” which is not enough). The full content of the penal notice should be prominently displayed on the front of the copy of the order and/or spelt out in the body of each paragraph to which it applies. All the financial orders in the suggested standard orders wardrobes follow this suggestion.'
The final report of the Financial Remedies Group dated 15th December 2014 maintained the recommendation in this regard.
The fact that an applicant is entitled to the endorsement of a penal notice as of right is set out in R v Wandsworth County Court, ex parte Munn  26 HLR 697. The case concerned an application for leave to apply for judicial review of the refusal of Wandsworth County Court to endorse a penal notice on an order. It was held that the endorsement of a penal notice is a mandatory and ministerial act to which no discretion arises. Per Sedley J (as he then was) at p.700:
'I accept the submission made by Mr Post that the indorsement of a penal notice on an order which the court has made is (a) a mandatory act, and (b) a ministerial act, as to which no discretion arises. It is an act that can be performed by a chief clerk or any person on the chief clerk’s behalf.'
This point was emphasised in Ahmed v Khan  EWHC 1748 (Fam) per Mostyn J when commenting on the safeguards for the defendant in contempt proceedings now codified in FPR 37.4 which includes at 2 (e) 'confirmation that any order allegedly breached or disobeyed included a penal notice'. At [83 i)] he stated as follows:
'The defendant must have been personally served with the original order with a penal notice endorsed on its front, unless the court or the parties dispensed with personal service. If the original order did not contain a penal notice the claimant can later endorse the notice thereon as of right – the court's permission is not required.'
And at  that:
'As I have explained above, where the original order does not have the penal notice on its front the claimant can write the words on it as of right before arranging for personal service of the order.'
The suggestion that if the original order does not have a penal notice 'the claimant can write the words on it' is contradicted by Re Taray Brokering Ltd Avery-Gee (as trustee in bankruptcy of Lawrence Coppen) v Coppen & Anor  EWHC 2958 (Ch) where His Honour Judge Pearce (sitting as a Judge of the High Court) in construing CPR 81.4(2)(e) – which is in identical to r 37.4(2)(e) – stated that a party is not at liberty to add a penal notice to an order of its own volition:
' A party to litigation is not at liberty to add a penal notice to an order of the court of its own motion; rather, that party must apply to the court to vary the order if it wishes a penal notice to be added.'
The court’s rationale for this was that unlike the previous version of CPR Part 81 which was in force prior to 1 October 2020 – where the wording of r 81.9 meant that it was arguable that the penal notice was not part of the order itself and hence might be added by a party onto the copy of the order served – the wording of the new CPR 81.4(2)(e) referred to confirmation that the 'order included a penal notice' (original emphasis) and therefore contemplated that the penal notice was part of the order itself and hence had to be added by the court and not by a party of its own volition.
This conclusion contradicted the then version of the Chancery Guide 2022 (which does not appear to have been considered by the court) – but these paragraphs had been revised by the Second Update in June 2023.
In Ahmed v Khan  EWHC 1748 (Fam) Mostyn J did not consider whether changes between the previous and new versions of FPR Part 37 – which likewise came into effect on 1st October 2020 – may have had the same consequence.
In CH v CT (Committal: Appeal)  1 FLR 700 Baker J (as he then was) stated at  in the context of the original version of FPR Part 37 that:
'it is important to note the effect of r37.9(3)(a). A penal notice under r37.9 must not be endorsed on an order under s8 of the 1989 Act, including a child arrangements order, unless the court, on the application of the person entitled to enforce the order, has expressly directed that it be endorsed'
'the provision in FPR 2010, r 37.9(3)(a) that, in the case of a s8 order, the court may (my emphasis) direct that the order be endorsed with a penal notice, and that without such a direction no copy of the order shall be so endorsed, is aimed at countering the observation that the purpose and effect of s 11I was to remove judicial discretion as to whether or not a penal notice should be attached'
and at  that 'a child arrangements order may be endorsed with a penal notice, if expressly directed by the court'.
If and to the extent that these comments suggest that a party is not entitled to the endorsement of a penal notice as of right and that it a matter of judicial discretion then they would appear to contradict R v Wandsworth County Court, ex parte Munn. However it may well be relevant in this context that when this case was cited in Re Taray Brokering Ltd Avery-Gee) v Coppen His Honour Judge Pearce stated at  that 'this case is specific to the context of the Family Procedure Rules and the Children Act 1989'.