Sang Cheol Woo v Charles C. Spackman (Aka Yoo Shin Choi)

• Jurisdiction: British Virgin Islands
• Judge: Wallbank, J
• Judgment Date: 03 March 2021
• Judgment citation (vLex): [2021] ECSC J0303-2
• Docket Number: CLAIM NO. BVIHC (COM) NO. 58 of 2019
• Court: High Court (British Virgin Islands)
• Date: 03 March 2021

[2021] ECSC J0303-2

EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

(COMMERCIAL DIVISION)

CLAIM NO. BVIHC (COM) NO. 58 of 2019

Between:

Sang Cheol Woo

Applicant/Judgment Creditor

and

Charles C. Spackman (Aka Yoo Shin Choi)

Respondent/Judgment Debtor

Appearances:

Mr. Merrick Ricardo Watson, with him Mr. Timothy de Swardt, for the Applicant.

No appearance was entered on behalf of the Respondent.

Judgment Enforcement — Committal Order made against personal judgment debtor which included provisions suspending the effect of the Order upon judgment debtor meeting certain conditions designed to allow him the opportunity to purge his contempt of Court — judgment debtor who is resident outside of the jurisdiction was previously ordered to attend Court to be examined but failed to obey examination order endorsed with a penal notice — judgment debtor committed to prison for a period of 12 months for breaching examination order — whether Court has power to issue a bench warrant for the arrest of judgment debtor should he enter the borders of the Territory of the Virgin Islands (the ‘BVI’) — whether judgment creditor can move the Court to exercise its power by a notice of application for the issue of a bench warrant.

The judgment creditor obtained an order committing the judgment debtor to prison for a period of 12 months. The judgment creditor applied for an order that the Court issue a bench warrant commanding the Royal Virgin Islands Police Force to arrest and bring the judgment debtor to Court should he enter the borders of the BVI – the Court's inherent jurisdiction to punish for civil contempt of court and to make an order to secure compliance with its earlier orders – CPR 53.11.

Held:

• 1. The Court has inherent power, supplemental to its power to punish for civil contempt, to issue a bench warrant for the arrest of an individual against whom the Court has made earlier orders such as an examination order and a committal order. This is especially so where an earlier committal order includes a provision suspending its immediate enforcement and providing the individual a reasonable opportunity to purge his contempt of court, but he has either failed or refused to do so;

• 2. The Court generally issues a bench warrant on its own motion in circumstances where it seeks to secure the attendance of a respondent to Court in relation to committal proceedings or more widely to secure the attendance of a witness to give evidence in other types of civil proceedings before the Court. However, the Court is not prevented from issuing a bench warrant at the request of an applicant who seeks the assistance of the Court to police a committal order which contains conditions that have not been complied with by the respondent;

• 3. CPR 53.11 permits a judgment creditor to apply to the Court for the enforcement of a committal order where the Court sets conditions in the committal order which the judgment debtor fails to comply with. In giving full effect to the committal order, the Court takes further steps such as issuing a bench warrant for the arrest of the judgment debtor;

• 4. In matters concerning committal orders made against a contemnor over whom the Court has established personal jurisdiction, but who resides outside of the jurisdiction, the bench warrant serves a useful purpose in directing the police to arrest and bring a contemnor to Court for sentencing, should he enter the jurisdiction. Otherwise, there is a real risk that the contemnor could enter the jurisdiction unbeknownst to the Court and escape the coercive reach of the Court; and

• 5. A bench warrant providing for the arrest and attendance of a contemnor to Court for sentencing inherently provides a last minute opportunity for a contemnor to seek the Court's mercy and to comply with the breached order in the eleventh hour. Such compliance, albeit late in the day, can be taken into consideration by the Court when it contemplates whether and to what extent to show leniency.

1 Wallbank, J [Ag.]: This ruling concerns an application (the ‘Bench Warrant Application’) brought by the Applicant, Mr. Woo, asking the Court to issue a bench warrant for the Respondent, Mr. Spackman, to be arrested and brought to Court for sentencing should he enter the borders of the BVI.

BRIEF FACTUAL BACKGROUND

2 The factual background leading up to the Bench Warrant Application is set out in detail in my judgment dated 12 ^th January 2021 delivered in these proceedings: Sang Cheol Woo v Charles C. Spackman (AKA Yoo Shin Choi) 1 (the ‘Committal Judgment’).

3 For that reason, I do not intend to rehearse the factual background in any great detail in this judgment. It suffices to point out that the Applicant applied for a declaration of contempt and an order committing the Respondent to prison for failure to comply with an order made by the Court on 20 ^th August 2020 commanding the Respondent to appear before the Court on 16 ^th September 2020 to be examined under an examination order (the ‘Examination Order’).

4 I granted the application (the ‘Committal Application’) and made an order dated 12 ^th January 2021 committing the Respondent to prison for a period of 12 months because of his failure to comply with the Examination Order. The Committal Judgment sets out my reasons for making the Order committing the Respondent to prison (the ‘Committal Order’). It is not necessary for me to go into those reasons in any great detail in this judgment.

5 Even so, for the purposes of this decision it is important to point out at the outset that paragraph 2 of the Committal Order suspended the effects of the Order if the

Respondent complied with any of the following conditions (the ‘Committal Suspension Order’)

• a. paying into Court or to the Applicant the full amount of the Default Judgment made by the Court on 4 ^th June 2020 (together with interest) within 7 days of the date of the Committal Order; or

• b. filing an application within 7 days of the date of the Committal Order to purge his contempt by making himself available to be examined in accordance with the terms of the Examination Order, such application to be listed before me within 7 days after it is filed.

6 It is equally important to note that the Committal Order containing the Committal Suspension Order was served on the Respondent on 19 ^th January 2021. The Bench Warrant Application made pursuant to the Court's inherent jurisdiction and under rule 53.11, Civil Procedure Rules 2000 (‘CPR’) and was served, along with the evidence in support and the Notice of Hearing, on the Respondent on 29 ^th January 2021. The Court is therefore satisfied that the requirements of CPR 53.11 have been complied with and that the Respondent had sufficient notice of the hearing.

7 At paragraph [5] of the Committal Judgment, I noted that the Committal Application engaged novel and complex issues of law in this jurisdiction that warranted a written judgment recording my analysis which could either be followed or possibly better tested in the future.

8 I take a similar view here. The issue of whether this Court has jurisdiction to issue a bench warrant against the Respondent who resides outside of the jurisdiction to secure his arrest should he enter the borders of the BVI is also quite novel. By the same token, the question of whether a party involved in committal proceedings is able to move the Court to issue a bench warrant for the arrest of contemnor in breach of the Court's order or whether a bench warrant must be issued on the Court's own motion is a novel issue for the Court's consideration.

9 Learned Counsel for the Applicant, Mr. Watson, noted to the Court that he conducted a detailed search of the previous judgments of this Court and could find no decision directly concerned with these two particular issues, although he admitted in argument that he cannot say with certainty that his search is completely exhaustive.

10 Mr. Watson shared with the Court that when the Applicant contemplated the next possible move that could be made to secure the Respondent's compliance with the Committal Order, he was uncertain whether or not an application could be made by the Applicant moving the Court to issue a bench warrant. On that basis, he examined the case law in England and was satisfied that ultimately the Applicant had the standing to file the Bench Warrant Application.

11 Be that as it may, the Court is mindful that it is worthwhile to record its position in this short judgment and for the future development of the law in the area in this jurisdiction.

THE APPLICANT'S SUBMISSIONS

12 Mr. Watson quite correctly limited his written submissions to a few key arguments which I summarize as follows.

13 First, he argued that the Court's inherent power to secure the Respondent's compliance with the Committal Order (in particular the Committal Suspension Order) and the Examination Order includes the power to issue a bench warrant for the arrest of the Respondent should he enter the borders of the BVI.

14 Secondly, he submitted to the Court that CPR 53.11 permits the Applicant to apply for the full enforcement of the Committal Order. In that connection, he argued that since the Respondent did not comply with conditions of the Committal Suspension Order, the Court is entitled to deploy its inherent power to issue a bench warrant for the arrest of the Respondent should he enter the borders of the BVI.

15 Thirdly, Mr. Watson submitted that it is clear from the English case law (which he urged the Court to follow as highly persuasive and which is discussed below) that the normal use of a bench warrant in civil proceedings is to secure the attendance at Court of contemnors for sentencing as a result of their contempt of court. He notes that the courts in England have in recent times more liberally deployed bench warrants to secure the attendance of witnesses to give evidence in civil...