Biggadike v Elneil [2026]: Enforcing a Default Costs Certificate and a Suspended Committal Under CPR 71

24 October 20267 min readLast reviewed 24 October 2026

Key points

In Biggadike v Elneil [2026] EWHC 2686 (KB) (21 October 2026), Lambert J granted an application for a suspended committal order against a judgment debtor who intentionally failed to attend court on 20 May 2025 for questioning about her means under CPR 71.
The debts came from a clinical negligence claim: £200,118.88 damages (judgment of 2 July 2024) and a default costs certificate of 15 January 2025 for £434,876.33. The defendant had paid £50,000 on account of costs and nothing since (at [3]).
A default costs certificate includes an order to pay (CPR 47.11(2)). The claimant secured the judgment debt with one charging order over the defendant’s property in west London and the costs debt with a separate, second charging order (at [4], [12] and [21]).
Under CPR 71.8 the judge may hold a non-attending debtor in contempt only if the creditor has complied with rules 71.4 (travelling expenses) and 71.5 (the affidavit), and any order must be suspended on terms that the debtor attends.
Following Broomleigh Housing Association v Okonkwo, committal is never routine: the judge must be sure the failure to attend was intentional and satisfied that the order is appropriate in the circumstances. GP notes and a psychiatrist’s letter that did not address attending court, or the date, did not excuse it (at [29] and [35]–[36]).
The judgment does not touch the amount of the costs; it is a first-instance decision on enforcement.

A costs certificate is worth what the claimant can collect. Biggadike v Elneil [2026] EWHC 2686 (KB) follows a clinical negligence claimant’s enforcement of a £200,118.88 judgment and a £434,876.33 default costs certificate against the surgeon who operated on her, and ends with the grant of a suspended committal order because the surgeon did not attend court to be questioned about her means.

Quick answer

A default costs certificate includes an order to pay the costs (CPR 47.11(2)), so it is enforced like any money judgment: by a charging order, an order to obtain information under CPR Part 71 and the other methods. A debtor served with an order to attend court for questioning must attend (CPR 71.2(6)). If they do not, the matter is referred to a High Court judge or Circuit Judge, who may hold them in contempt but must suspend the order on terms that they attend (CPR 71.8). In Biggadike, Lambert J was sure that the failure to attend was intentional and granted the application for a suspended committal order (at [33]–[35]).

What happened in Biggadike v Elneil?

2 July 2024: judgment. HHJ Carmel Wall, sitting as a judge of the High Court, found that surgery in January 2017 had been unnecessary and carried out without the claimant’s informed consent, and awarded damages of £200,118.88. The defendant paid £50,000 on account of costs, as directed, and nothing more towards damages or costs (at [3]).
15 January 2025: default costs certificate. The claimant obtained a default costs certificate in the gross sum of £434,876.33 (at [3]).
Charging order for the judgment debt. Applied for on 19 September 2024, interim order 4 February 2025, final order 16 May 2025 (at [4]).
Order to attend for questioning. The claimant applied under CPR 71.2 on 22 November 2024. Personal service failed: the process server certified that the defendant had frustrated it, and her building’s concierge was reported to have been told to refuse anything from him. The court permitted service by first class post to her and by post and email to her former solicitors, who were still on the record, and moved the appointment to 20 May 2025 (at [5]–[6]). She signed for the documents on 5 April 2025, under a covering letter warning that failure to obey the order could lead to prison, and the claimant reminded her of the date on 15 May (at [7]–[9]).
20 May 2025: no attendance. The claimant asked for the matter to be referred to a High Court judge under CPR 71.8 (at [11]).
Charging order for the costs debt. The claimant applied for a second charging order over her interest in her property in west London, to secure the costs debt; an interim order was made on 4 June 2025. The 7 July 2025 hearing was vacated after she sent medical notes, and she did not comply with the court’s order for further medical evidence. On 24 October 2025 the court refused a stay and made the final charging order (at [12]–[21]).
Committal. On 16 March 2026 Obi J certified the non-compliance and listed the contempt question (at [22]). The application was heard on 17 June 2026, and the defendant, who had notice of it, did not attend (at [32]). Judgment was handed down on 21 October 2026.

Why the court granted a suspended committal order

Under CPR 71.8, a judge to whom a failure to attend is referred may hold the debtor in contempt only if the judgment creditor has complied with rule 71.4 (the debtor may ask for reasonable travelling expenses within 7 days of service, and the creditor must pay them) and rule 71.5 (an affidavit of service, stating whether expenses were requested or paid and how much of the judgment debt remains unpaid) (at [27]–[28]). In Broomleigh Housing Association v Okonkwo [2011] HLR 5 the Court of Appeal said that even suspended committal orders are not to be made as a matter of routine. Before making one, the judge must be satisfied that the order was served, that there is sufficient evidence to find to the criminal standard that the failure to attend was intentional, and that in the circumstances it is appropriate to make the order; the alternatives of adjourning with directions or making a further order to attend should also be considered (at [29]).

The judgment deals with each point:

Service and receipt. The order was served by the permitted alternative method, the defendant signed for it, she was reminded of the date, and she never claimed not to know of it (at [34]).
The affidavit. The judgment records that the claimant’s affidavit described the order as delivered rather than sent by post, but that the certificate of service and a witness statement in the hearing bundle confirmed how it had actually been served (at [10]).
Intention. She knew the date and gave no explanation for not attending (at [35]).
The medical evidence. Her GP’s notes recorded stress and severe anxiety but neither addressed her ability to attend court nor covered 20 May 2025, and her GP would not, the judge said, have had the expertise to give that opinion. A psychiatrist’s letter that she was unfit for the workplace did not cover the date either: there is, the judge said, a very significant difference between signing off a surgeon from clinical and surgical work and certifying that she is unable to attend court for questioning by a court officer (at [35]–[36]).
Her fitness shown elsewhere. She attended a professional regulatory hearing on 1 August and 16 September 2025, after considerable preparation, and gave evidence on 1 August. The judge saw no good reason why she could not have attended court to answer questions about her means (at [38]–[40]).

Standing back, the judge was satisfied that the defendant had been seeking to frustrate the processes of the court and avoid satisfying the judgment debt, and granted the application (at [41]).

What it means for claimant firms

Treat the certificate as an order to pay. A default costs certificate includes an order to pay (CPR 47.11(2)) and can be enforced in its own right; it does not wait for the damages to be recovered.
Secure the costs separately. The claimant obtained one charging order to secure the judgment debt and a separate, second one to secure the costs debt (at [4] and [12]).
Build the service record. An order to attend must be served personally at least 14 days before the hearing unless the court orders otherwise (CPR 71.3(1)). Where a debtor avoids personal service, ask for alternative service, keep proof of receipt and send a reminder. File the CPR 71.5 affidavit at least 2 days before the hearing or produce it there (CPR 71.5(2)), and check that it describes service correctly.
Test the medical evidence. A note signing a debtor off work is not, without more, evidence that they cannot attend court, and evidence of what the debtor was able to do in the same period can decide the point (at [35]–[40]).

What Biggadike does not decide

Anything about the amount of the costs. The application concerned only enforcement; the judgment does not say whether the default costs certificate was ever challenged.
The final terms of the order. The judge invited the claimant to review the draft order and provide a final version for her consideration (at [43]).
Any new rule. It is a first-instance decision applying CPR 71.8 and the Court of Appeal’s guidance in Broomleigh to its facts.

How DMD Costs Can Help

We prepare and negotiate claimant clinical negligence costs: bills of costs, Notices of Commencement, Points of Dispute and Replies, up to an agreed sum or a costs certificate that the firm can enforce. We do not act in enforcement. DMD Costs is a firm of law costs draftsmen in Westhoughton, Bolton (Greater Manchester), acting mainly for claimant solicitor firms; its clinical negligence costs work is led by Diellza Nika Hyseni, law costs draftsperson and Managing Director.

Sources

Biggadike v Elneil [2026] EWHC 2686 (KB) (Find Case Law)
CPR Part 71: Orders to Obtain Information from Judgment Debtors (rules 71.2 to 71.5 and 71.8)
CPR Part 47: Procedure for Assessment of Costs and Default Provisions (rules 47.9, 47.11 and 47.12)
CPR Part 73: Charging Orders, Stop Orders and Stop Notices

Frequently asked questions

In Biggadike v Elneil [2026] EWHC 2686 (KB), Lambert J granted an application for a suspended committal order under CPR 71.8 against a judgment debtor who had failed to attend court on 20 May 2025 to be questioned about her means. The debts came from a clinical negligence claim: a judgment for £200,118.88 in damages and a default costs certificate for £434,876.33. The judge was sure, to the criminal standard, that the failure to attend was intentional (at [3] and [33]–[35]).

Yes. A default costs certificate includes an order to pay the costs to which it relates (CPR 47.11(2)), so the receiving party can use the methods of enforcement for a money judgment. In Biggadike the claimant obtained a charging order over the defendant’s property in west London to secure the judgment debt and then a separate, second charging order to secure the costs debt (at [4] and [12]); the final charging order for the costs was made on 24 October 2025 (at [21]).

When the 21 days for serving Points of Dispute after service of the Notice of Commencement have expired and no Points of Dispute have been served (CPR 47.9(2) and (4)). If any party serves Points of Dispute before the certificate is issued, the court may not issue it (CPR 47.9(5)). The court must set the certificate aside if the receiving party was not entitled to it, and may set it aside or vary it for some good reason why the detailed assessment proceedings should continue (CPR 47.12).

The court refers the matter to a High Court judge or Circuit Judge (CPR 71.8(1)). Provided the judgment creditor has complied with rules 71.4 (travelling expenses) and 71.5 (the affidavit), that judge may hold the debtor in contempt and punish them by a fine, imprisonment, confiscation of assets or other punishment under the law, but must suspend the order on terms that the debtor attends court at a time and place specified and complies with the order (CPR 71.8(2) and (3)).

No. Following Broomleigh Housing Association v Okonkwo [2011] HLR 5, the power requires the exercise of discretion and consideration of all the circumstances; even suspended committal orders should not be made as a matter of routine. Before making one, the judge must be satisfied that the order was served, that there is sufficient evidence to find to the criminal standard that the failure to attend was intentional, and that in the circumstances it is appropriate to make the order; the alternatives of adjourning with directions or making a further order to attend should also be considered (Biggadike at [29]).

It did not in Biggadike. The GP notes recorded stress and severe anxiety but said nothing about the debtor’s ability to attend court and did not cover the date of the hearing; a psychiatrist’s letter that she was unfit for the workplace was, the judge said, very different from certifying that she could not attend court to be questioned about her means (at [35]–[36]). She had attended a professional regulatory hearing on 1 August and 16 September 2025, giving evidence on 1 August (at [38]–[40]).

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