It is a well-known scriptural principle that ‘unto every one that hath shall be given… but from him that hath not shall be taken away’. Extracting assets from the hath-nots, however, is not always easy, as the recent decision of the Court of Appeal in Broomleigh Housing Association Ltd v Okonkwo [2010] EWCA Civ 1113 illustrates. The best way to avoid bad debts is, of course, not to give credit to those whom you do not know. As the old Italian proverb has it, ‘trust is a fine thing, but suspicion is safer’. The canny tradesman insists on cash on delivery, or at least carries out credit checks before parting company with his stock. But when your client has placed trust in a person with whom you would not shake hands without ­counting your fingers afterwards, what should you do?

Gather intelligenceFirst, gather intelligence. Your client or his fellow tradesmen may know something about the debtor. ‘His house looked expensive’ will lead you to adopt what is generally the most effective means of enforcement: an application for a charging order and, if need be, an order for sale. ‘He was driving a brand-new Mercedes’ will suggest a warrant of execution and a visit by the bailiff or High Court enforcement officer (to whom you can transfer a county court debt of at least £600) with a low-loader. A cheque drawn by the debtor will provide details of a bank account which, if in credit, can be made subject to a third-party debt order. Knowledge that the debtor is working will encourage an application to attach his earnings. But what if your client knows nothing about the debtor’s means?

Enter Emeka Okonkwo, who was a tenant of the Broomleigh Housing Association. Possession ­proceedings were brought against him in which his landlord obtained judgment for costs. Knowing nothing about Okonkwo’s means, the landlord obtained an order for questioning. Such an order, obtained under Civil Procedure Rule 71, is a creditor’s last resort; one need only consider the progress of this case to see why.

‘Progress’ is the wrong word; even ‘drift’ would be too suggestive of advance. The case eddied for years. The landlord obtained judgment in April 2004. It sought the order for questioning in May 2005. The order, granted in June, required Okonkwo to attend court on a date in August. Orders for questioning must be served personally at least 14 days before the questioning is to take place. The creditor is generally directed to serve. If asked within seven days of service, he must also pay the debtor’s reasonable travelling expenses. Okonkwo’s landlord failed to serve the order. Six orders followed.

Service was finally effected when, according to Okonkwo, one of his landlord’s housing officers ‘thrust a document towards him, which fell to the ground’. If this is what happened, it is as well that Okonkwo did finally make his way to court, in November 2007. Though a document may be served personally by leaving it in a person’s presence, he must be told what it is; had Okonkwo not attended, the judge might have concluded that, yet again, his order had not been served.

The procedure now reached its second stage. The record of Okonkwo’s questioning, conducted by a court officer, reads: ‘He attended, but stated he needed more time before he could fill in the form.’ His Honour Judge Ellis, who appears to have been told only that Okonkwo had refused to answer questions, committed him to prison for seven days, suspending the sentence, in accordance with Civil Procedure Rule 71.8, on condition that Okonkwo returned to court on another occasion. Personal service again proving difficult, three more such orders followed until Okonkwo returned to court and answered the officer’s questions on 5 May 2009, a little more than five years after the judgment had been obtained.

At this point, something untoward happened; Okonkwo appealed against the suspended sentence which his attendance at court had already discharged. He needed no permission; an appeal against committal lies as of right. The explanation for this extraordinary step is that he was a law student: Lords Justices Moore-Bick and Wilson record, with perhaps a hint of scepticism, that Okonkwo, ‘who wishes to pursue a career in the law, is said to be concerned that to have had committal orders made against him might harm his prospects’. Okonkwo may also have had in mind that trying out his skills before the Court of Appeal and appearing in a law report might assist him in his chosen career. The sentiments of his landlord are not recorded. No doubt, the association felt it had better things to do than spend money opposing the appeal.

Which succeeded. The reason why lies less in its merits than in the procedure followed by the court below. When first making a suspended committal order, the judge used a standard form ‘which requires little more than ticking boxes and entering a figure for the period of imprisonment’. But ticking a box was, their lordships concluded, not enough: before exercising his discretion, the judge should have heard Okonkwo, considered all the evidence, satisfied himself beyond reasonable doubt that Okonkwo was intentionally in contempt of court, weighed the alternatives, and given reasons for deciding to commit. That suspended orders for committal rarely resulted in imprisonment was irrelevant: ‘It is undesirable for the court to approach the making of severe orders with any degree of promiscuity just because it has an expectation, however well justified, that they are unlikely to need to be enforced’ [at para 17].

Never mind the avalanche of paper on his desk, let the judge not promiscuously commit! He must read the file, pause before judgment and record his reasons. That reasons should be given accords, of course, with article 5 of the European Convention on Human Rights 1950, which prevents unlawful detention and requires that a comprehensible explanation for his detention be given to a detainee. It also accords with a much older principle: in the far background to the Court of Appeal’s judgment one can surely descry those troublesome nobles, insisting, in 1215, that ‘no free man shall be seized or imprisoned… except by the lawful judgment of his equals or by the law of the land’ and still, more than seven centuries later, stoutly defending every subject against imprisonment without just cause.

District Judge Adam Taylor sits at Horsham County Court