Summary

It was not in the interests of justice to prevent a contemnor from pursuing his appeal against an order for his committal unless he complied with conditions, including surrendering to custody, as that was a disproportionate response to his contempt.

Facts

The applicant bank (B) applied for the dismissal of the appeal of the respondent contemnor (X) against an order for committal unless he complied with certain conditions which it sought to have imposed upon X.

B alleged that X had misappropriated large sums of money from it. It obtained a freezing order against X, an order for the disclosure of his assets and an order for X not to leave the jurisdiction. Receivers were also appointed in support of those orders. B applied for an order that X be committed to prison for contempt owing to his numerous breaches of court orders. X was committed to prison, in his absence, and subsequently ordered to pay B's costs and to make an interim payment of £750,000 in respect of them. It was believed that he had fled the jurisdiction and so an order was made requiring X to surrender to custody and serve on B's solicitors an affidavit detailing the location, nature and value of his assets by a fixed date. The judge also ordered that unless X complied he would be debarred from defending some of the actions brought against him by B, his defences would be struck out and that B would be able to enter judgment against him. However, that part of the order was suspended pending the outcome of an appeal lodge by X against the committal order. B applied for the dismissal of X's appeal unless X (i) surrendered to custody; (ii) made an affidavit giving details of his dealings with his assets; (iii) satisfied the interim payment for B's costs; (iv) provided security for B's costs in the appeal of £200,000.

Held

(1) Care had to be taken before declining to hear a contemnor who was appealing against the order of which he was in breach, especially where, as in the instant case, the contemnor was appealing against a judge's findings of fact which constituted a breach of the relevant order, Hadkinson v Hadkinson [1952] P. 285, X Ltd v Morgan Grampian (Publishers) Ltd [1991] 1 A.C. 1, Arab Monetary Fund v Hashim (No.10) Times, June 17, 1993 and Motorola Credit Corp v Uzan (No.6) [2003] EWCA Civ 752, [2004] 1 W.L.R. 113 applied. Nonetheless, a court might be justified in declining to hear a contemnor who not only wilfully refused to comply with an order but also made it clear that he would continue to defy the court's authority if the order was affirmed on appeal, X Ltd considered. There were strong grounds to believe that X was in wilful and contumacious default of other orders, despite the explanations he had provided for refusing to surrender to custody or to make an affidavit. It was clear that X was doing his best to prevent B from enjoying the benefit of any judgment that it might later obtain against him, all of which pointed to making the order B sought. Three of the conditions B sought to have imposed on X reflected orders made following the finding of contempt against him. X ought to be allowed to challenge them, despite his refusal to comply with them. Requiring X to surrender to custody as a condition of being able to pursue his appeal would be a disproportionate response to his contempt, Omar v France (2000) 29 E.H.R.R. 210 considered. In all the circumstances, it was not in the interests of justice to impose such a requirement. The circumstances would be rare where it would be right to prevent a contemnor from arguing an appeal against an order for committal, Motorola applied. Full disclosure of the location of X's assets was necessary for a fair trial of the action, but making such an order was not the right way to protect B's position. X had not been committed solely for a failure to give the requisite disclosure; there were numerous other breaches too (see paras 26, 29-31 of judgment). (2) It was not appropriate to make orders for an interim payment or for security for costs, since failure to comply with them would result in the dismissal of X's appeal without him being heard, Hammond Suddards Solicitors v Agrichem International Holdings Ltd [2001] EWCA Civ 2065, [2002] C.P. Rep. 21, Moses-Taiga v Taiga [2004] EWCA Civ 1399andMasri v Consolidated Contractors International (UK) Ltd [2007] EWCA Civ 702 applied (paras 36-37).

Application refused