Summary

Although any penal or coercive element arising out of the first defendant's committal to prison was now spent, it would be inappropriate to permit his early release from prison in the light of his unwillingness to give promises of future cooperation on the form of undertakings.

Facts

Application by the first defendant ('R') in August 2002 for his release from prison following his committal for a period of two years in July 2001. R's committal arose out of his repeated failure to comply with disclosure, freezing and search and seizure orders made in support of proceedings in which the claimants sought to recover some £20 million that they had paid into a Swiss bank account, effectively controlled by R, and the whereabouts of which was unknown. By his application R did not offer any formal undertakings as to the particular tasks that he would perform if released, for fear that a failure to comply would result in yet further applications for his committal to prison. He did, however, offer to "collaborate fully" with the claimants in seeking to trace their money.

Held

(1) R was due for release in any event in November 2002, ie some three months hence. Given the length of time that he had already been in prison, during which he had continued to defy the court's orders, it seemed clear that any penal or coercive element in the committal order was now spent. (2) The court accepted, therefore, that it was appropriate to consider permitting R to be released notwithstanding his non-compliance. However, it would not be right to grant him his release without formal undertakings being given by him. The court and the claimants were entitled to expect a degree of commitment from R in relation to the steps that he was promising to take if released. (3) It was also clear that, even though in prison, R could already have taken some steps in performance of the promises that he was making, but had not done so. No explanation had been offered as to why those steps had not already been taken. (4) In all the circumstances, it would not be right to allow R's release now, although a further application was likely to be favourably received if it satisfactorily addressed the concerns raised at (2) and (3) above.

Application dismissed.