Family Law Hub

Olu-Williams v Olu-Williams [2018] EWHC 2464 (Fam)

Sentencing of husband for contempt of court was adjourned until after the financial remedy hearing, at which the husband's ability to pay might emerge.

  • Case No: FD13D04310

    Neutral Citation Number: [2018] EWHC 2464 (Fam)

    IN THE HIGH COURT OF JUSTICE

    FAMILY DIVISION

    Royal Courts of Justice

    Strand, London, WC2A 2LL

    Date: 21/09/2018

    Before :

    MR JUSTICE WILLIAMS

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    Between :

    Melanie Olu-Williams (Applicant)

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    Oscar Olu-Williams (Respondent)

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    Helen Alexander (instructed by Direct Access) for the Applicant

    Michael Horton (instructed by Bindmans) for the Respondent

    Hearing dates: 23 - 27 of July 2018

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    Judgment Mr Justice Williams :

    General

    1. This is my judgment on an application made by Melanie Olu-Williams (the Applicant) for the committal to prison of her ex-husband Oscar Olu-Williams (the Respondent). That application was issued on 17 October 2017 and the grounds of the application for committal set out 12 allegations that the respondent has committed acts of contempt of court in failing to comply with specific orders or undertakings. The grounds as they were presented before me had been slightly amended as shown on the table below.

    1 The respondent failed to pay to the applicant the sum of £11,800 £7,413 by 4 PM on 30 August 2017 in breach of paragraph 3 of the order of Mr Justice Hayden dated 24 August 2017, such order having a penal notice detached thereto

    2 The respondent failed to discharge the applicant wife's rent for Nash House, St Monica's Road, Kings worth, Tadworth, Surrey, KT20 6AN on 17 October, 17 January 2017, 17 April 2017, 17 July 2017 and 17 September 2017 in breach of paragraph 5 of the order of Mr Justice Hayden dated 21 July 2016, so that the rent payment had to be met by the wife.

    3 The respondent failed to file and serve

    (a) a full form E

    (b) a statement from his accountant setting out his earnings from 1/12/2014 to date supported by documentary evidence to include tax returns

    (c) a statement in the prescribed form to be concluded by a Statement of Truth either sworn or affirmed and signed by him

    (i) setting out all facts and matters relied upon by him in support of his application and setting out why the wife's Agriterra shares were disposed of what is the status of the Red Rock Mining Deal and what is the status and nature of any agreement with Sable Mining a.k.a. Consolidated Group; what are the two deals about which he told Mr Justice Hayden on 21 July 2016; what is their current status?

    (ii) responding to W statement of 19 July 2017

    by 4 PM on 17 August 2017 in breach of paragraph 2 of the order of Mrs Justice Parker dated 20 July 2017 and then having not done so

    by 4 PM on 21 September 2017 breach of paragraph 5 of the order of Mr Justice Hayden dated 24 August 2017, such order having a penal notice attached thereto

    4 The respondent failed to file and serve a statement and to exhibit thereto/disclose:

    (a) his letter to the wife dated 27 June 2017;

    (b) his email to the court dated 29 June 2017;

    (c) evidence of the sale of the house in Sierra Leone for US$500,000;

    (d) how the said proceeds of sale were applied;

    (e) how the rental income of the former matrimonial home was applied after 1 December 2014 and to what extent it was used to satisfy the payments required by Mr Justice Mostyn's order;

    (f) documents evidencing the agreements between the husband and Agriterra Ltd in relation to the share purchase agreement (SPA) before the order of Mr Justice Mostyn;

    (g) any documentation in respect of any agreement or contemplated agreement between the husband or any entity within his control and Red Rock Mining or Sable Mining a.k.a. Consolidated Group;

    (h) bank statements for all businesses or entities owned or operated by him or in which she has an interest, or in respect of which he is a signatory, since 1 December 2014

    a. by 4 PM on 17 August 2017 in breach of paragraph 2 of the order of Mrs Justice Parker dated 20 July 2017 and then having not done so

    b. by 4 PM on 21 September 2017 breach of paragraph 5 of the order of Mr Justice Hayden dated 24 August 2017 such order having a penal notice attached thereto

    5 The respondent failed to disclose to the wife copies of all his personal bank and credit card statements for the period from 1 December 2014 by 4 PM on 21 September 2017, in breach of paragraph 6 of the order of Mr Justice Hayden dated 24 August 2017, such order having a penal notice attached thereto [A28-29]

    6 The respondent failed to pay to the wife her costs assessed in the sum of £7260 by 4 PM on 6 September 2017, in breach of paragraph 8 of the order of Mr Justice Hayden dated 24 August 2017

    7 The respondent failed to pay to the wife half of all consideration of any kind received by him in respect of and in connection with the Red Bunch deal with Agriterra (net of any irrecoverable costs and capital gains tax) in breach of his undertaking to the court on 27 November 2014 and as recorded at paragraph 19 of the order of Mr Justice Mostyn dated 27 November 2014

    8 The respondent failed to transfer her shares to her stockbroker as requested by W and in breach of his undertaking to the court on 27 November 2014 and as recorded at paragraph 21 of the order of Mr Justice Mostyn dated 27 November 2014

    9 The respondent failed to keep W and her advisers fully informed of and to provide no less than 28 days (where reasonably possible) advance notice of the following

    (a) his receipt of consideration of any kind in respect of and in connection with the Red Rock deal with Agriterra

    (b) any transaction undertaken, remuneration paid or distributions made in respect of and in connection with the red rock deal with Agriterra

    (c) any proposed share sale, asset sale, distribution, transaction undertaken or remuneration paid or any other event that may materially affect the value of the parties' entitlement or that may bring about a realisation of the same

    (d) in breach of his undertaking to the court on 27 November 2014 and as recorded at paragraph 22(c)(d) and (e) of the order of Mr Justice Mostyn dated 27 November 2014

    10 The respondent failed to provide periodic updates to the wife in relation to the matters referred to at paragraph 9 above at least every six months from the date of the order made by Mr Justice Mostyn dated 27 November 2014 or to provide the wife or her advisers with documentary evidence in relation to all matters outlined at ground nine above at least every six months in breach of his undertaking to the court on 27 November 2014 and as recorded at paragraph 23 of the order of Mr Justice Mostyn dated 27 November 2014

    11 The Respondent failed to indemnify the applicant wife against any liability arising from any dealings by him in which he has involved the applicant wife as an officer of a company or otherwise as recorded at paragraph 24 of the order of Mr Justice Mostyn dated 27th November 2014.

    12 The respondent has failed to be solely responsible for the costs of the children's education and to indemnify the wife against any liability arising therefrom in breach of his undertaking to the court on 27 November 2014 and as recorded at paragraph 27 of the order of Mr Justice Mostyn dated 27 November 2014

    2. The applicant was represented by Ms Alexander, who was instructed for the first time last Friday on a direct access basis. The respondent was represented by Mr Horton, who was instructed by Bindmans solicitors. Criminal legal aid was granted to the respondent in accordance with proper practice by Mrs Justice Parker.

    3. I have been provided with five lever arch files comprising the trial bundle. Prior to, and in the course of, the hearing I have been able to read much of that documentation, in particular the affidavit of the applicant in support of the committal application which also adopted three previous statements made by the applicant in 2016 and 2017. I've read the respondent's statement in relation to the enforcement application and his affidavit in respect of the committal. Mr Horton made clear in his skeleton argument that the court was invited to read them but that they should not be taken into account in evidential terms prior to the submission of no case to answer and the respondent's election as to whether or not he would give evidence or would exercise his right to remain silent. I had the benefit of some preliminary documents including a summary prepared on behalf of the applicant by her previous counsel which set out the evidential basis of the committal. The applicant herself had filed a position statement and a chronology. Mr Horton provided a comprehensive and detailed 21-page Skeleton Argument together with a bundle of 11 authorities. As will become clear in this judgment the reason for its length and complexity was the multiplicity of substantive and procedural deficiencies which Mr Horton identified in the committal application. In the course of the hearing I was provided with further authorities, some further evidence in the form of emails and letters, some schedules provided by Mr Horton and following the conclusion of submissions of no case to answer, written applications to amend the grounds to particularise ground 12, and to be permitted to proceed with ground seven as if a judgment summons had been issued.

    4. On Tuesday at the commencement of the case Ms Alexander made some preliminary oral applications

    a. to adduce fresh evidence in respect of ground one

    b. to amend ground one to stipulate a different sum

    c. to withdraw allegations two and six on the basis that the original orders did not contain a penal notice.

    5. FPR 37.27 (1) gives the court a permissive power to allow the applicant to rely on evidence which has not been served in accordance with the FPR or the practice direction. Although the application to adduce fresh evidence in respect of ground one was formally opposed, in reality Mr Horton himself also sought to rely on additional evidence in respect of that ground and so I permitted both parties to adduce further evidence. It did not appear to me that there was any injustice to either party in doing so.

    6. FPR PD37A paragraph 10.2 (2) provides a permissive power to allow an amendment to the application notice. I also permitted the applicant to amend the amount stated in ground one to take account of a sum that had been paid prior to the making of that order. I was satisfied that there was no injustice to the respondent in making that amendment.

    7. FPR PD37A paragraph 13.3 provides that a committal application may not be discontinued without the permission of the court. Taken together with the power to grant permission to amend an application notice it seems to me that the court's permission is required to amend an application notice to delete a ground. I granted permission to withdraw those allegations, as again it seemed to me there was no injustice in so doing, indeed quite the reverse given that FPR 37.9 (1) provides that an order cannot be enforced by committal unless there is prominently displayed on the front of the border a penal notice. This is mandatory in respect of enforcement by committal. It is not mandatory in respect of judgment summonses but the applicant had not issued a judgment summons; more of which later.

    8. The Skeleton Argument filed on behalf of the respondent by Mr Horton intimated that he might also have preliminary applications relating to the validity of various of the grounds of committal. I concluded following brief submissions that it would be more proportionate to deal with those applications at the point when a submission of no case to answer might be made; it appearing self-evident that such a submission was going to be made. I concluded that rather than hear submissions and deliver a substantive judgment on those points followed by a further substantive judgment at the no case to answer point followed potentially by further substantive judgment in relation to any grounds still remaining that it would be more proportionate and no injustice would be occasioned by dealing with Mr Horton's points at that stage.

    9. Following those preliminary skirmishes, the applicant gave evidence. Following the conclusion of her evidence Mr Horton advanced a submission of no case to answer. In the course of the submissions of no case to answer, Ms Alexander asked for permission to withdraw further grounds namely 1, 5, 10 and 11. I granted permission for her to do so. She also made an oral application for permission to amend ground 12 to particularise it to refer to the distress the applicant suffered as a result of a County Court judgment being entered against her and her car being repossessed in respect of the Lancing College School fees. She made a bare oral application to treat the committal application in respect of ground seven as a judgment summons.

    10. Thus the decision that I had to make was to determine whether there is a case to answer in respect of grounds 3, 4, 7, 8, 9, and 12. Between the close of submissions and my delivery of my decision, I received applications on Thursday morning from Ms Alexander seeking permission to amend the grounds to particularise ground 12 in line with the oral application she had made but also seeking to add further particulars in relation to an assertion that a further County Court judgment had been issued in March or April 2018. She also sought written permission to treat the committal application in respect of ground seven as a judgment summons.

    11. I gave my decision on those submissions with brief reasons during the course of the hearing on the basis that I would deal more fully with the law and submissions in this judgment. I dismissed grounds seven and eight. I refused Ms Alexander's application to treat the committal application as a judgment summons application. I granted her permission to particularise ground 12. Although she had not sought permission I also varied ground 9 to incorporate the particulars which had been referred to in the applicant's affidavit. I refused her application to add wholly new particulars in relation to ground 12 on the basis that it was made far too late in the day.

    12. After a short adjournment Mr Horton on behalf of the respondent filed formal admissions in respect of grounds three, four and nine. He also admitted various facts in relation to ground 12 but did not accept that they amounted to contempt. The respondent then gave evidence in particular in relation to his ability to pay the school fees. He was robustly cross-examined by Ms Alexander at some length. At the conclusion of his evidence I heard submissions in relation to ground 12. Mr Horton submitted that the form of indemnity contained in the undertaking only carried with it a financial obligation and that given the wife's acceptance that she had not paid any of the school fees, nor suffered any financial loss, the respondent was not in breach. He also submitted that it was clear on the evidence that the respondent was unable to pay the school fees which had led to the issuing of a County Court judgment and the seizure of the applicant's car by bailiffs, and thus it was submitted that the applicant could not establish beyond reasonable doubt that the respondent had been able to pay the fees or the judgment and had wilfully refused to pay. Ms Alexander submitted that the evidence demonstrated that the respondent did have access to funds and thus could have paid. I gave my judgment in court at the time. I concluded that the applicant had not established on the evidence so that I was sure (or beyond reasonable doubt) that the respondent had the means to pay and had wilfully refused to pay. I therefore dismissed ground 12.

    13. That left grounds 3, 4, and 9 in respect of which the respondent admitted he was in contempt of court. After hearing mitigation from Mr Horton, and seeking the applicant's views in terms of whether sentencing should be adjourned or not, I delivered a judgment in which I concluded that the breaches were not sufficiently serious to warrant immediate committal to prison or suspended committal. I concluded that they were sufficiently serious to warrant a financial penalty but was unable to determine whether the respondent was in a position to pay such a penalty. Given the nature of his business by November, when Mr Justice Coen is due to consider a financial remedy application, a clearer picture as to the respondent's finances might emerge. I therefore adjourned sentence to await developments in that hearing. I gave a judgment in court dealing with sentencing.

    14. This judgment therefore deals with the issues which were raised in relation to the submissions of no case to answer. Before I turn to the submissions, the law and my conclusions I shall set out briefly the factual background.

    Background

    15. The parties met and began to cohabit in 1996. Their eldest son was born in 1997. On 18 September 1998 they married. Their second child was born in 2001, and their third in 2005. The respondent was originally employed within the banking industry but then struck out on his own specialising in raising finance for businesses in emerging markets. For many years he was based in Italy and the family lived for a while in London before moving to the south of France and then to Lake Como in Italy for a time before returning to live in London.

    16. Both the applicant and the respondent described the respondent's business as having highs and lows. The bursting of the dot-com bubble and the global financial crash both had a serious impact on his businesses. At one point the family home in Belgravia had to be sold as they could not afford it anymore. The respondent says that the last truly significant deal which netted a significant sum for the family was as long ago as 2011, and since then although he has been able to undertake work and has seen through various deals none have resulted in a significant success fee. In March 2013 the parties separated and in September 2013 the wife petitioned for divorce. At some point a bridging loan was taken which was secured on the former matrimonial home. The parties believe that it was worth in excess of £4 million. On 27 November 2014, following an FDR before Mr Justice Mostyn, the parties reached a compromise which was recorded in an order of that date. Under the order, the former matrimonial home was to be sold with the expectation that after repayment of legal expenses loans and school fees the wife would receive close to £1 million. Various undertakings provided for her to receive sums of money in relation to 2 particular deals that the respondent was then hoping to bring to fruition. A nominal periodical payments order was made in respect of the applicant and no maintenance was provided for in respect of the children. However the respondent did undertake to be solely responsible for the children's educational costs (if any) and agreed to indemnify the applicant. The undertakings in that order form the basis of grounds 7 to 12 of the committal application.

    17. Unfortunately the former matrimonial home did not sell. Offers in the region of £3.2 million were received but were not accepted. Eventually the former matrimonial home was rented out with the rental income being used to pay the mortgage and rental costs for the applicant and children and for the respondent. The bridging loan was not paid, it carrying a very high rate of interest. In the end the former matrimonial home was repossessed and sold. The applicant wife received less than £100,000, the bridging loan eating up the lion's share of the equity that existed. In retrospect the taking of the bridging loan was plainly a bad decision and it has left the family in a precarious financial position. No doubt at the time it was thought that the respondent would land one of the deals which would enable the bridging loan to be paid off before it had accrued substantial interest, or that the property would sell for a sum closer to the parties' expectations and again the bridging loan would have been paid off.

    18. It is the respondent's case that neither of the two substantial deals that he hoped would land large success fees came to fruition the way expected. One which was contingent upon mining rights being granted failed when the rights were not granted. The other failed for other reasons. As a result only modest sums were received by the husband in 2016/2017 in respect of those deals.

    19. On 21 July 2016 the applicant restored the matter to court and a hearing took place in front of Mr Justice Hayden. At paragraph 5 by consent it was ordered that until the sum that the applicant was due to receive in respect of the former matrimonial home that the respondent would continue to discharge the rent on the applicant's property. It is that order that formed the basis of ground 2. On 29 June 2017 the respondent issued an application seeking to vary paragraph 5 of Mr Justice Hayden's order to provide that the sum the applicant had received from the sale of the former matrimonial home be used to pay her rent. Mrs Justice Parker made various orders in particular for disclosure at paragraphs 2 and 3 of that order. She relisted the matter for a hearing on 24 August before Mr Justice Hayden. At the hearing on 24 August the respondent did not appear. He had issued an application to adjourn the hearing and having heard nothing assumed it had been adjourned. Mr Justice Hayden made further orders in his absence. Paragraph 3 he ordered the respondent to pay the applicant is the sum of £11,800 by 4 o'clock on 30 August 2017. A penal notice was attached to this order. This forms the basis of ground 1 of the committal application. At paragraph 5 he extended time for the respondent to comply with the directions given by Mrs Justice Parker for the filing of evidence. He amended part of Mrs Justice Parker's order to include further disclosure. Penal notices were attached to these provisions and they now form the basis of grounds 3, 4, and five of the committal application. He also ordered the respondent to pay the applicant's costs. That forms the basis of ground 6 of the committal application. Mr Justice Hayden dismissed the respondent's application that the applicants share of the proceeds of sale be used to pay her rent.

    20. Following that hearing the respondent consulted lawyers who filed a notice of appeal with the Central Family Court. Self-evidently that was the wrong court and the papers should have been filed with the Civil Appeals Office. They sought a stay in respect of the obligations imposed on the respondent in respect of disclosure. Because the appeal had been filed in the wrong court, no action was taken on it and when the respondent's lawyers became aware that they had issued it in the wrong court the respondent concluded that he could not afford to pursue it further.

    21. Thus on 17 October 2017 the applicant issued an application for enforcement of the orders and an application for committal. On 10 November 2017 Mr Justice Newton gave directions on those applications listing the enforcement application for a hearing before Mr Justice Mostyn on 12 January 2018 and the committal application for hearing on 8 February 2018. He gave directions for the respondent to file documentation, effectively that which the respondent had been required to file pursuant to the orders of Mr Justice Hayden and Mrs Justice Parker.

    22. On 8 February 2018 the committal application came before Mrs Justice Parker. The respondent was in person and Mrs Justice Parker adjourned the hearing to 12 April 2018 and granted the respondent legal aid. The applicant was given permission to amend her grounds of committal by 22 February 2018.

    23. On 12 April 2018 the committal application came before Mr Justice Holman. Due to a dispute over the bundles he was presented with (I believe) eight lever arch files. The one-day hearing was ineffective and he re-timetabled the committal hearing to commence before me on 23 July.

    Submission of No case to Answer

    24. In criminal terms a submission of no case to answer might be made if there is no evidence that the crime alleged has been committed by the defendant or where there is some evidence but it is of a tenuous character because of inherent weakness or vagueness or because it is inconsistent with other evidence. In those circumstances where the judge concludes that the prosecution evidence taken at its highest is such that a jury properly directed could not properly convict on, it is the judge's duty to stop the case. Where the evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability or other matters which are generally speaking within the province of the jury, and where on one possible view of the facts there is evidence on which the jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury. In approaching the evidence, taken at its highest, this did not involve picking out all the plums and leaving the duff behind. The judge should make an assessment of the evidence as a whole as to whether overall it is appropriate to leave the matter to a jury.

    25. In the criminal field, issues over whether the indictment was defective in disclosing no offence known to law, or whether it constituted an abuse of process might be dealt with at the outset.

    26. Mr Horton advanced a host of points which go to the issue of whether the allegation is capable in law of being subject to a committal application which in the criminal field might fall within the defective indictment field, he has submitted that it is an abuse of process, and he has also made more traditional submissions in respect of certain grounds that there is no realistic prospect of the respondent being convicted on the admissible evidence before me at this stage.

    27. Mr Horton has focused his submissions on 5 areas. Firstly:

    a. General Failure to comply with formalities of committal application or defects in the form of the undertakings in respect of which committal is sought

    i. Mr Horton submits that 37.10(4) requires personal service of the committal application and there is no evidence that this has been done. He accepts personal service can be dispensed with and that in respect of process matters breaches can be waived if no injustice is caused

    ii. He submits that the effect of FPR37.9(2) and PD37A 2.1 and 2.2 is that in respect of an order such as that made on 27 of November 2014 that it must contain both a penal notice in respect of the orders and a warning in respect of the undertakings. He submits that there is no statement signed by the respondent acknowledging he understood the undertakings given and the penal consequences of non-compliance.

    In response Ms Alexander submits that the respondent would have been fully aware of the consequences of breaching the undertakings given the presence on the order of a penal notice, that he was represented by counsel, and that the order is lengthy and detailed. In any event she invites the Court to exercise its discretion to waive any defect. In respect of personal service of the committal application the applicant submits that the respondent is present and represented and there is no injustice to him in waving the defect.

    28. Abuse of process: Mr Horton in effect invites me to strike out any alleged breach which relies on either statements made by the respondent or documents produced by the respondent in response to the oral examination procedure on the basis that it amounts to an abuse of process for two reasons;

    a. Firstly, he submits that the issuing of an enforcement application and a committal notice on the same day amounts to an abuse of process where the enforcement application is issued simply for the purposes of obtaining information to use in support of the committal application. In relation to this submission he relies on the decision of the Court of Appeal in Mohan-v-Mohan [2014] 1 FLR 717. He has directed me to the transcript of the hearing before Mrs Justice Parker on 8 February 2018 when the applicant's then counsel expressly stated to the court that the purpose of having an enforcement application heard before the committal was to ascertain financial details of the respondent. Given this was in the context of a possible direction granting permission to vary the grounds of committal and to adduce further evidence in support of a committal, Mr Horton says it is clear that it was a deliberate strategy on behalf of the applicant's legal advisers to seek to extract information from the respondent to then use in support of a committal application. The Court of Appeal in Mohan said at paragraph 41 that the strategic prior issue of the general application could not be used simply as a device to achieve only disclosure and examination for deployment in subsequent issued proceedings under the Debtors Act.

    Ms Alexander in response submits that it would be disproportionate to strikeout the committal itself. The proportionate response would be to exclude from consideration in the committal any evidence obtained through the enforcement process.

    b. Secondly, Mr Horton submits that it is wrong in principle to combine a committal for failure to comply with disclosure obligations with committal for non-payment of monies owed where the respondent would inevitably seek to persuade the court that he was unable to pay. In adducing evidence to show he had complied with the obligation to disclose information he would inevitably put before the court material which might be used against him in respect of the non-payment allegations.

    Again Ms Alexander submits if there is an issue of abuse of process in this respect the court should simply exclude evidence produced by the respondent in answer to the non-disclosure allegations from consideration on the non-payment allegations

    29. Thirdly Mr Horton submits that in respect of those grounds of committal which refer to non-payment of money (he identifies ground 7 and 12 as being such grounds) that they are not susceptible to a committal application under FPR 37 but rather must be subject to application by judgment summons under FPR 33. He submits that the combined effect of sections 4 and 5 of the Debtors Acts, the Administration of Justice Act 1970 and the FPR themselves is to require applications in respect of money orders to be brought by this route. He identifies a series of differences in the process and penalty and thus submits that these grounds simply cannot be pursued by the route the applicant has chosen. He submits that it is not susceptible to variation or for the defect to be waived given the wholesale failure to comply, and that it would be unjust to do so given the penal sanctions. He also submits in respect of ground 7 (and some of this incorporates or duplicates purer no case material) that

    a. the sum of money is not specified either in the ground or in the affidavit

    b. that it does not specify a time for payment

    c. the terms of the undertaking are so vague in terms of expenses which are deductible, and given the dispute over whether Mr Kebbekeh held his 50% on behalf of an independent third party or the respondent, that it is simply not susceptible of committal prior to determination of those issues.

    Ms Alexander in response submitted that the applicant had not issued a judgment summons because she could not afford it and she could not establish the sum that was owed to her. She submitted that the court could interpret the undertaking to determine what expenses were deductible, that the court could resolve the issue over whether the respondent was the true beneficial owner of all of the shares and what sums if any had been paid by the respondent pursuant to his obligation under the undertaking. She made an application that the court should treat the application for committal as a judgment summons application under FPR 33. Mr Horton in reply noted that paragraph 33(b) of the order of 27 November 2014 gave the parties liberty to apply regarding the undertakings and that if it had not been possible to ascertain the sum owed that this was the route that the applicant should have taken. Within such an application the court could have determined whether Mr Kebbekeh was holding 50% of the shares on behalf of a third party or whether in truth he was holding them for the respondent, what expenses were properly deductible and what sums the respondent had paid in discharge of any amounts owing. He submits that the applicant's invitation for me to interpret the clause and to resolve the disputes is in effect an invitation for me to rewrite the clause or to imply into it other terms both of which he says are impermissible in the context of a committal application.

    30. Fourthly, Mr Horton submits that in respect of grounds 3, 4, and 5 no committal can lie because the orders are defective for the following reasons:

    a. The July order does not contain a penal notice and there is no evidence of personal service of the order. Mr Horton acknowledges that the court may dispense with service.

    b. The August order at paragraphs 5 and 6 does say 'a penal notice is attached to this part of the order' but it is not clear whether it refers to the July order or the August order.

    c. The decision of Munby J (as he then was) in Harris-v-Harris [2001] 2 FLR 895 makes clear that where a later order varies or extends time in respect of an earlier order that all the operative terms must be included in the later order so that an order with penal consequences is available to the respondent in one document.

    d. As a result, Mr Horton submits the July and August orders do not contain a sufficiently clear statement of what it is the respondent was required to do and by when to make the orders susceptible to committal.

    Ms Alexander in response says that taking the two orders together it is a simple obligation which is imposed and there is no lack of clarity. As a result the respondent can have been under no doubt as to the obligation imposed upon him.

    31. Leaving behind then his arguments as to the technical obstacles Mr Horton turned to the more traditional no case territory in respect of the evidence or the proof of breach:

    a. Ground 7

    Mr Horton submitted that

    i. The applicant must quantify and say what sum is owed.

    ii. There is no realistic prospect of court concluding he has not paid

    1. The wife cannot show the husband owned more than 50%. The 2011 documents show Mr Noah was on the scene and she cannot show he was not a nominee for someone else. They were the beneficial owner of half the shares the evidence shows. He is to pay her half the value of those

    2. She cannot show he did not pay her the 50% of the 50% they did own. The tables produced show that from June 2016 to September 2017 he paid to the applicant sums in excess of 50% of their 50% share of the sale proceeds. There was no legal obligation on him to pay those sums and so they can only be attributable to his paying her her share of the proceeds. In any event his email of March 2017 shows that he was ascribing his payments of rent as fulfilling his obligation to pay his share of those sums.

    Ms Alexander submitted that the court could conclude that he was the beneficial owner of the other 50% of the shares and that the court could interpret the undertaking in respect of expenses. She also submitted that the sums which he did pay are not attributable to paying his share. The respondent has historically paid small sums to the wife either in respect of the children or for other matters and these payments in the schedule are a continuation of that pattern of support. They were gratuitously made. In any event prior to March 2017, the wife was unaware that the husband had sold her part of the shares or Mr Kebbekeh's and could not have attributed any payments received by her to the proceeds of sale. Nor did the respondent attribute to them to the share sale because he had not disclosed that they had been sold. There is no correlation between the receipt of the proceeds of sale of the shares and any of the payments made either in time or an amount and thus there would be a case to answer.

    b. Ground 8

    Mr Horton submits that the undertaking only refers to Red Rock or Red Bunch shares and thus the assertion that he is in breach of his undertaking by failing to transfer the Agriterra shares is unfounded.

    Ms Alexander in response says that the court has to imply into paragraph 21 of the order of 27 November 2014 an obligation to transfer any other shares which might be linked to the deal.

    c. Ground 9

    Mr Horton points out that in the application notice there are no particulars given identifying what it is that the respondent failed to keep the wife and her advisers fully informed of. It therefore falls foul of FPR 37.10 (3). It is mandatory that the particulars of breach are identified in the grounds. In this case the grounds merely repeat the terms of the order without identifying anything that the respondent has failed to do. In respect of his failure to inform the wife that he was selling the shares which is identified in the affidavit Mr Horton submits that this does not fall within the obligations set out in paragraphs 22(c), (d), (e) of the undertaking. Mr Horton objects to any attempt to amend the particulars late. Ms Alexander accepted that it was not particularised

    d. Ground 12

    Mr Horton submitted that an undertaking to indemnify in the form of paragraph 27 is limited solely to money. He submitted that the applicant has not asserted that she is out of pocket. He said that the clause could have been drafted in wider terms for instance to pay the school fees within so many days of the invoice being issued but it was not. He says that the applicant agrees she has never paid any of the school fees and so there is nothing to indemnify her in respect of.

    In response and now supported by a notice, the applicant seeks to amend ground 12 to particularise it. The particulars now read 'Costs and detriment of H failing to comply with court order to be solely responsible for educational costs and to indemnify the W against all liabilities arising from education -related costs. W's car repossessed on 24 February 2017 and recovered only on 7 March 2017. W quantifies the loss of the car for 14 days as 30?14 = £420. A CCJ was entered in the W's credit file and this affects the W's ability to obtain credit or secure a rental. It will last for six years'. Ms Alexander also seeks to amend to include an allegation in respect of a CCJ that was entered in March/April 2018.

    Committal for Contempt of Court by breach of an order.

    32. The summary of the substantive law of contempt in relation to the breach of an order below derives from the following cases.

    a) London Borough of Southwark v B [1993] 2 FLR 55

    b) Mubarak v Mubarak [2001]1 FLR 698

    c) Re A (Abduction: Contempt) [2008] EWCA Civ 1138, [2009] 1 FLR 1

    d) Re S-C (Contempt) [2010] EWCA Civ 21, [2010] 1 FLR 1478

    e) Re L-W [2010] EWCA Civ 1253, [2011] 1 FLR 1095.

    f) Re J (Children) [2015] EWCA Civ 1019

    g) Y v Z [2016] EWHC 3987 (Fam)

    33. The principles are:

    a) The contempt which has to be established lies in the disobedience to the order.

    b) To have penal consequences, an order needs to be clear on its face as to precisely what it means and precisely what it prohibits or requires to be done. Contempt will not be established where the breach is of an order which is ambiguous, or which does not require or forbid the performance of a particular act within a specified timeframe. The person or persons affected must know with complete precision what it is that they are required to do or abstain from doing. It is not possible to imply terms into an injunction. The first task for the judge hearing an application for committal for alleged breach of a mandatory (positive) order is to identify, by reference to the express language of the order, precisely what it is that the order required the defendant to do. That is a question of construction and, thus, a question of law.

    c) Committal proceedings are essentially criminal in nature, even if not classified in our national law as such (see Benham v United Kingdom (1996) 22 EHRR 293 at [56], Ravnsborg v. Sweden (1994), Series A no. 283-B);

    d) The burden of proof lies at all times on the applicant. The presumption of innocence applies (Article 6(2) ECHR)

    e) Contempt of court involves a contumelious that is to say a deliberate, disobedience to the order. If it be the case that the accused cannot comply with order then he is not in contempt of court. It is not enough to suspect recalcitrance. It is for the applicant to establish that it was within the power of the defendant to do what the order required. It is not for the defendant to establish that it was not within his power to do it. That burden remains on the applicant throughout but it does not require the applicant to adduce evidence of a particular means of compliance which was available to the accused provided the applicant can satisfy the judge so that he is sure that compliance was possible.

    f) Contempt of court must be proved to the criminal standard: that is to say, so that the judge is sure. The judge must determine whether he is sure that the defendant has not done what he was required to do and, if he has not, whether it was within his power to do it. Could he do it? Was he able to do it? These are questions of fact.

    g) It is necessary that there be a clear finding to the criminal standard of proof of what it is that the alleged contemnor has done that he should not have done, or in this case what it is that he has failed to do when he had the ability to do it. The judge must determine whether the defendant has done what he was required to do and, if he has not, whether it was within his power to do it.

    h) If the judge finds the defendant guilty the judgment must set out plainly and clearly (a) the judge's finding of what it is that the defendant has failed to do and (b) the judge's finding that he had the ability to do it.

    Committal for Contempt of Court: Procedural Issues

    34. The following principles relating to the procedural aspects of applications for committal for breach of a court order also emerge from the authorities referred to above. I have also considered the following decisions:

    a) L (A Child) [2016] EWCA Civ 173 in particular the judgment of Theis J,

    b) Cherwayko v Cherwayko (No 2) (Contempt, contents of application notice) [2015] EWHC 2436 (Fam) Parker J.

    35. The need for compliance is based on rules of natural justice in that:

    a) A person needs to know in advance of committing an act or omitting to do an act that there are potentially penal consequences in acting or omitting to act and,

    b) A person accused of contempt of court is entitled to a fair hearing both under the European Convention and in domestic law.

    As well as the court's own duty, counsel and solicitors have their own independent duty to assist the court, particularly when considering procedural matters where a person's liberty is at stake.

    36. The principles are:

    a) There must be complete clarity at the start of the proceedings as to precisely what the foundation of the alleged contempt is: contempt in the face of the court, or breach of an order.

    b) Prior to the hearing the alleged contempt should be set out clearly in a document or application that complies with FPR rule 37 and which the person accused of contempt has been served with. The question is 'would the alleged contemnor, having regard to the background against which the application is launched, be in any doubt as to the substance of the breached alleged'? Provision of particularisation of allegations in an attached affidavit is insufficient, and the application itself must include the pleaded assertions. There is an important distinction between the charges made and the facts supporting them.

    c) Autrefois acquit and convict applies.

    d) If the alleged contempt is founded on breach of a previous court order, the court must be satisfied that the person accused had been served with that order, and that it contained a penal notice in the required form and place in the order.

    e) Whether the person accused of contempt has been given the opportunity to secure legal representation, as they are entitled to. By virtue of the quasi-criminal nature of committal process, Article 6(1) and Article 6(3) ECHR are actively engaged (see Re K (Contact: Committal Order) [2002] EWCA Civ 1559, [2003] 1 FLR 277 and Begum v Anam [2004] EWCA Civ 578); Article 6(1) entitles the respondent to a "a fair and public hearing"; that hearing is to be "within a reasonable time". Article 6(3) specifically provides for someone in the position of an alleged contemnor "to defend himself in person or through legal assistance of his own choosing." The accused is also entitled to "have adequate time and the facilities for the preparation of his defence" (Article 6(3)(b)).

    f) Where the alleged contempt is contempt in the face of the court, the court should consider whether the same judge should hear the committal application, or whether it should be heard by another judge.

    g) Following the conclusion of the applicant's evidence, the respondent is entitled to make a submission of 'no case to answer.'

    h) Immediately prior to the commencement of the defence case, the person accused of contempt must be advised of the right to remain silent. The court must inform the accused of the possibility of adverse inferences being drawn against them if they choose not to give evidence.

    i) If the person accused of contempt chooses to give evidence, the court must warn them about self-incrimination and their right not to incriminate themselves. The court must inform the accused of the possibility of adverse inferences being drawn against them if they choose not to answer any questions.

    Section 35 of the Criminal Justice and Public Order Act 1994) and Khwaja v Popat [2016] EWCA Civ 362 per McCombe LJ and paragraph 81.28.4 of Civil Procedure 2015 Vol. 1 (p.2460) states as follows:

    A person accused of contempt, like the defendant in a criminal trial, has the right to remain silent (Comet Products UK Ltd. v Hawkex Plastics Ltd. [1971] 2 QB 67, CA). It is the duty of the court to ensure that the accused person is made aware of that right and also of the risk that adverse inferences may be drawn from his silence (Interplayer Ltd. v Thorogood [2014] EWCA Civ 1511, CA

    j) Before the court moves to sentencing the contemnor must be given an opportunity to mitigate or to purge his contempt.

    37. Pursuant to paragraph 13.2 of PD37A, the Court is empowered to 'waive any procedural defect in the commencement or conduct of a committal application if satisfied that no injustice has been caused to the respondent by the defect'. Per Lord Woolf in Nicholls v Nicholls [1997] 1 FLR 649:

    While the requirements of Ord 29, r 1 are there to be observed, in the absence of authority to the contrary, even though the liberty of the subject is involved, we would not expect the requirements to be mandatory, in the sense that any non-compliance with the rule means that a committal for contempt is irredeemably invalid.

    Waiver is now based on the interest of justice and whether the alleged contemnor would suffer an injustice or prejudice. There is no longer a threshold of exceptionality, and the court has to ask itself 'did the alleged contemnor have enough information to meet the charge?' While an attached affidavit could not provide the particularisation required of a notice, it could justify the waiver of a defect. Cherwayko v Cherwayko (No 2) (Contempt, contents of application notice) [2015] EWHC 2436 (Fam). Whilst PD37A does not specifically refer back to FPR 4.6 'Relief from sanctions' and by and large, FPR 37 does not set out a specific sanction for failure to comply, the sorts of issues that the court might consider when dealing with applications to waive a defect in the committal process could well be informed by FPR 4.6. However the ultimate question will be waiver causes any injustice to the Respondent. It is clear that the power to waive a defect relates to the committal process. It does not relate back to defects in the order or undertaking itself. It does though apply to any aspect of the committal process whether it relates to particulars of the alleged breach not being included in the committal notice, to service issues or anything else which can properly be characterised as the commencement or conduct of the committal application. In cases where there is a wholesale failure to comply with the rules, whilst each individual failure might not cause injustice, the court may conclude that overall it is unfair, but also not in the interests of justice more broadly assessed, for a wholly defective process to be allowed to continue. It is in the interests of justice that the procedural code is followed; in particular where the liberty of the subject is at stake

    38. FPR 37 and PD 37A set out detailed procedural requirements for the pursuit of committal applications. I do not intend to set them out in detail but they include

    (a) FPR 37.4 makes clear that if the judgment or order requires a person to do an act that there must be a time fixed by which it is to be done. It is clear from subsequent cases such as the Attorney General-v- Cambra-Jones that a date must be set as a precondition for such orders to be susceptible to committal applications.

    (b) FPR 37.5: unless the court dispenses with service a judgment or order cannot be enforced unless a copy of it has been served on the person (FPR 37.6 provides that orders must be personally served).

    (c) FPR 37.7 provides that documents recording undertakings will be delivered to the person giving the undertaking. FPR 37.8 provides the court can dispense with personal service if it is satisfied that the person has notice of it either by being present or by being notified of its terms subsequently. The court can dispense with service if it considers it just to do so.

    (d) FPR 37.9 orders to do or not to do an act may not be enforced unless there is prominently displayed on front of the order a penal notice. Undertakings may be enforced notwithstanding the absence of a penal notice. PD37A paragraph 2.1 provides that 'Subject to rule 37.9(2) the form of an undertaking to do or abstain from doing an act must be endorsed with a notice setting out the consequences of disobedience.' That requires essentially a penal notice. PD37A paragraph 2.2 provides the court may decline to deal with disobedience in respect of an undertaking by contempt of court unless the party giving the undertaking has made a signed statement to the effect that they understand the penal consequences.

    (e) FPR 37.10 requires that the application notice must set out in full the grounds on which the committal application is made and must identify separately and numerically each alleged act of contempt including, if known, the date of each of the alleged acts and be supported by one or more affidavits containing all the evidence relied upon. The application notice must be served personally on the respondent although the court may dispense with service if it considers it just to do so.

    (f) FPR 37.27 provides that at the hearing the applicant may not rely on any grounds other than those set out in the application notice but this is qualified by PD37A paragraph 10.2 which permits application to amend with permission of the court.

    Committal applications in respect of an order for the payment of money.

    39. The scheme in respect of applications to enforce orders for the payment of money by means of committal has to be collected from a number of statutory provisions. The Court of Appeal considered them in Nwogbe-v-Nwogbe [2000] 2 FLR 744.

    40. The following statutory provisions are relevant.

    Debtors Act 1869

    4 Abolition of imprisonment for debt, with exceptions

    With the exceptions herein-after mentioned, no person shall...be arrested or imprisoned for making default in payment of a sum of money.

    There shall be excepted from the operation of the above enactment:

    .. [not relevant]

    5 Saving of power of committal for small debts

    Subject to the provisions herein-after mentioned, and to the prescribed rules, any court may commit to prison for a term not exceeding six weeks, or until payment of the sum due, any person who makes default in payment of any debt or instalment of any debt due from him in pursuance of any order or judgment of that or any other competent court.

    Provided...

    (2) That such jurisdiction shall only be exercised where it is proved to the satisfaction of the court that the person making default either has or has had since the date of the order or judgment the means to pay the sum in respect of which he has made default, and has refused or neglected, or refuses or neglects, to pay the same.

    ...

    For the purpose of considering whether to commit a debtor to prison under this section, the debtor may be summoned in accordance with the prescribed rules.

    The Administration of Justice act 1970

    Part II Enforcement of Debt

    Provisions restricting sanction of imprisonment

    11 Restriction on power of committal under Debtors Act 1869

    The jurisdiction given by section 5 of the Debtors Act 1869 to commit to prison a person who makes default in payment of a debt, or instalment of a debt, due from him in pursuance of an order or judgment shall be exercisable only—

    (a) by the High Court in respect of a High Court maintenance order;...

    Enforcement by attachment of earnings

    28 Other provisions for interpretation of Part II

    (1) In this Part of this Act, except where the context otherwise requires—

    "High Court maintenance order" [and "family court maintenance order"]...mean respectively a maintenance order enforceable by the High Court [and the family court]...;

    "maintenance order" means any order [, decision, settlement[, arrangement] or instrument] specified in Schedule 8 to this Act and includes [one] which has been discharged [or has otherwise ceased to operate], if any arrears are recoverable thereunder;

    SCHEDULE 8 Maintenance Orders for Purposes of 1958 Act and Part II of this Act

    Section 28

    1 An order for alimony, maintenance or other payments made, or having effect as if made, under Part II of the Matrimonial Causes Act 1965 (ancillary relief in actions for divorce etc).

    2 An order for payments to or in respect of a child being an order made, or having effect as if made, under Part III of the said Act of 1965 (maintenance of children following divorce, etc).

    2AAn order for periodical or other payments made, or having effect as if made, under Part II of the Matrimonial Causes Act 1973.

    It is accepted that an undertaking may fall within the definition above,

    41. FPR 33 deals with enforcement. Chapter 2 deals with committal by way of judgment summons. Section 1 is entitled enforcement of orders for the payment of money

    33.9 Interpretation

    In this Chapter, unless the context requires otherwise –

    'order' means an order made in family proceedings for the payment of money;

    'judgment creditor' means a person entitled to enforce an order under section 5 of the Debtors Act 1869;

    'debtor' means a person liable under an order; and

    'judgment summons' means a summons under section 5 of the Debtors Act 1869 requiring a debtor to attend court.

    42. FPR 37.1 which deals with the scope of applications and proceedings in relation to contempt of court identifies that it sets out the procedure in respect of committal for breach of a judgment, order, undertaking to do or abstain from doing an act. Thus it deals with acts rather than payment of money. FPR 37.4 provides that if a person required by judgment or order to do an act does not do it within the time fixed by the judgment or order or disobeys a judgment or order not to do an act then, subject to the Debtors Acts 1869 and 1878 and to the provisions of these rules the judgment or order may be enforced under the court's powers by an order for committal

    43. The combined effect of sections 4 and 5 of the Debtors Act, the Administration of Justice Act 1970 and the FPR seem to me to provide an exclusive route to seek committal for non-payment by way of judgment summons. The definition of judgment summons in FPR 33.9 identifies a judgment summons as the summons referred to in section 5 of the Debtors Act. The Administration of Justice Act identifies financial remedy orders (i.e. those made under part two of the MCA 1973) as being capable of application for committal pursuant to section 5. The provisions of FPR 37.1 and 37.4 reinforce that conclusion by appearing to exclude from the ambit of true committal applications to commit in respect of money orders. Undertakings within such orders are to be treated as orders themselves. Thus it appears that it is not open to a judgment creditor to seek the committal to prison of a debtor under part 37; their only route is through judgment summons. The order made on 27 November 2014 was clearly a Part II order.

    Conclusion on Submission of No case to Answer

    44. I return now to my conclusions in respect of the no case to answer points

    45. In respect of personal service of the committal application I conclude there is no injustice to the respondent in the failure to personally serve. The respondent has been aware of the application since late 2017 and has been able to respond to it and has been fully and ably represented following the grant of criminal legal aid.

    46. Taken together I consider that FPR 37.92 and PD37A 2.1 and 2.2 do not impose a mandatory obligation in respect of an undertaking contained in an order to carry with it a warning as to consequences or a statement signed by the person giving the undertaking that they understand the terms of the undertaking and the penal consequences of non-compliance. No doubt as a matter of good practice and certainly if the new standard family orders are used any order will contain both the penal notice as to orders and the warning as to undertakings. In this case the order of 27 November 2014 did contain a notice which followed on immediately after the undertakings which in fact was in more detailed form than that specified in the rules and which plainly related to the undertakings the respondent had given.

    47. I do not accept that the evidence makes clear that the issuing of the enforcement application alongside the committal was entirely strategic. The transcript of the hearing before Mrs Justice Parker shows that the applicant's counsel at that time was contemplating a committal application as soon as possible after Mr Justice Newton's order. It is not clear whether it was Mr Justice Newton or the applicants team who timetabled the applications as they were. So I do not accept that it is established that this was an entirely strategic application; although I am prepared to accept it was part of the thinking process of the applicant's legal team at that time that the enforcement application might generate useful material. The contents of the transcript suggests that there was or may have been a genuine desire to ascertain whether any other form of enforcement was feasible. Thus it does not fall into the category identified at paragraph 39 of Mohan (above) where it might be said to be entirely strategic and thus potentially an abuse of process. In any event I do not take the decision of the Court of Appeal in Mohan as authority for the proposition that if it is entirely strategic that the consequences are strikeout. In that case the Court of Appeal eventually concluded that documentary evidence disclosed could still be deployed even though obtained under compulsion. That is of course in contrast to, for instance, a statement or a Form E or other document created by the respondent himself which could not be deployed if obtained under compulsion. Thus even if the court concluded that it were a purely strategic move the consequences would have to be dealt with on a case-by-case basis applying the overriding objective and in particular doing justice and achieving fairness between the parties. In this case as it happens none of the remaining grounds are affected by any evidence that may have arisen as a result of the tandem process and I cannot see any unfairness arising out of the tandem approach that was adopted in this case.

    48. Nor do I accept the premise of Mr Horton's argument in respect of the second limb of his abuse argument namely the hearing of non-disclosure and non-payment allegations alongside each other. The allegation in this case is of a failure to disclose material prior to September 2017. The fact that the respondent has subsequently produced the evidence in relation to that order and which may thus go to mitigation if the breach is proved does not make that evidence inadmissible. As the Court of Appeal made clear in Mohan evidence which is produced in answer to orders which predate the committal application is admissible in any event. In addition documentary evidence in the form of bank statements or other documents which have an independent existence was held to be admissible by the Court of Appeal in Mohan even if it was produced as a result of the enforcement and committal tandem processes. It appears relatively common from the authorities for applications for committal for non-payment and applications for committal for failure to disclose to be heard in tandem.

    49. Thus I do not consider that Mr Horton has substantiated his abuse of process argument to the extent that it has any effect on the committal application overall or individual grounds within it.

    50. However it seems to me that Mr Horton submission as to the proper approach to committal applications in respect of money orders is right. The combined effect of the statute and the procedure identifies a clear route for enforcing money orders which is by judgment summons. Although the court has the general power to waive defects in compliance with the procedural rules if no injustice is caused, in respect of a wholesale failure to comply based on a deliberate choice not to pursue that route I conclude that it would be unjust to treat the committal application as a judgment summons application. The rules are there for a purpose and in particular the difference between the six week penalty available in respect of a judgment summons and the two-year penalty which arises in committal as a matter of not only justice between the parties, but also in upholding the need for compliance with the procedural code and the statutes. This leads me to conclude that I should not permit the applicant to pursue this by treating the committal application is a judgment summons. This may require the applicant to use the liberty to apply permission under the 2014 order to seek clarification as to the precise sum owed with the option of issuing a judgment summons thereafter if any such sum identified is not paid.

    51. In any event I am driven to conclude that the undertaking which ground 7 relates to is not susceptible to committal by judgment summons at the current moment in any event for a number of reasons. They are as follows

    (a) The undertaking contains no time limit as to when the sum was to be paid by.

    (b) There is a dispute of substance as to the amount that might be payable. The court would need to determine whether the respondent was the true beneficial owner of the other 50% of the shares held in Mr Kebbekeh's name; the court would need to determine what expenses were properly recoverable. These it seems to me go to the issue of whether the undertaking is in a form which is sufficiently clear so as to be capable of committal at the current time. I accept Mr Horton submission that it in effect requires the court to imply into the undertaking further terms and that the proper way of resolving these disputes is not under the umbrella of a judgment summons, but by activation of the liberty to apply direction. In respect of the amounts said already to have been paid I consider that those could properly be determined within a judgment summons application is that simply goes to whether the amount has been paid or not.

    52. In respect of Mr Horton's submission as to service and the validity of an obligation imposed across the July and August 2017 orders, it is clear that the respondent was aware of the obligations imposed by the July 2017 order. It was made upon his application for variation and he was present in court when it was made. Although he was not present when the August order was made it was served on him in accordance with the direction Mr Justice Hayden gave in that order. I therefore do not consider there is any injustice to the respondent in dispensing with the service of the July order.

    53. The decision of Munby J in Harris has to be looked at in context of the orders that were in issue there. It emerges from the judgment that there were 6 orders which needed to be composited in order to understand the obligation they imposed. Munby J referred to the proper practice when drawing up an order amending an existing injunction was to express the new order as discharging the earlier injunction and granting a new injunction in the desired terms. I note that in the White book at 81.4.2 it states that

    'it is recognised good practice that, where there is a series of related orders prohibiting a party from doing an act, with the latter varying the former, they should be consolidated into a single order so that any person affected could see clearly in a single document what he or she was prohibited from doing and should be able to understand without significant difficulty the operative terms of the order. It goes on to say adherence to this practice simplifies the court task of determining, in committal proceedings, whether or not the respondent is in breach, and may reduce the incidence of such proceedings being brought when misconceived or unnecessary.'

    54. I conclude that there is not an absolute rule that requires an order imposing obligations with penal consequences to be incorporated in one single document. It will be fact specific. In many, possibly in most cases good practice would be to ensure that all of the order is contained in the most recent order. However in a case such as this where Mr Justice Hayden's order simply extended the time for compliance with Mrs Justice Parker's earlier order and imposed a penal notice which (quite properly) had not been incorporated in the earlier order it was not essential for the operative parts to be repeated. As a matter of construction it is absolutely clear what it was that the respondent was required to do in terms of disclosure. I do not consider that there is any defect in respect of the orders of July and August. Even if there were would not be unjust to proceed.

    55. In respect of Ground 7 I accept that there would be a case to answer in respect of the evidence as to the attribution of the monies that the respondent has paid. However given that I have concluded that for legal reasons ground 7 cannot proceed this is no longer relevant. It may of course become so if the applicant operates the liberty to apply clause and the court determines what sum should properly have been due in respect of the share sale. Either the court would in that forum determine whether those payments could be attributed to the respondent paying her in compliance with his undertaking or whether they were paid for other reasons. Alternatively if once the sum is ascertained a judgment summonses issued the issue would be determined at that stage.

    56. It is fundamental to an application to commit that the order or undertaking must be clear as to what obligation it imposes. Terms cannot be implied into undertakings or orders. In respect of Ground 8, I cannot imply into that undertaking a requirement on the respondent to transfer the Agriterra shares to the applicant when it only refers to Red Rock or Red bunch. There is therefore no case to answer in respect of ground eight.

    57. The effect of the Court of Appeal decision in Nicholls (above) is to give the court a general discretion to waive a procedural defect where no injustice has been caused. This is the conclusion which emerges from that decision but which also was the conclusion reached by Parker J in Cherwayko (above). Although Ms Alexander did not seek to amend the particulars in respect of ground 9 it seems to me that the court with its own independent obligation to uphold its orders and undertakings should go a little beyond the position of the advocate for the applicant. The affidavit filed by the wife did clearly identify in respect of this ground the particulars in which it was said the respondent was in breach. That appears at paragraph 19 of the affidavit and is in these terms

    'the respondent did not inform me or seek prior approval from me before selling my shares. Instead he kept reassuring me that my shares (18,900,000) were safe.

    That allegation is supported by independent evidence exhibited by the wife in the form of the email of 15 March 2017. I therefore conclude that there is no injustice to the respondent in permitting this ground to go ahead on the basis of amended particulars incorporating the wording at paragraph 19 of the applicant's affidavit. I do not consider there is any injustice to the respondent in waving the defect in the particulars in this respect because the allegation is clearly set out in the affidavit and evidenced. Notwithstanding the lateness of the specification of the particulars I do not consider that the respondent is in any way disadvantaged. The issue of what ground 9 covered arose earlier in the hearing and I pointed out that this was a specific allegation made and that the respondent might wish to deal with it. I therefore conclude that ground 9 can continue on that basis.

    58. In respect of ground 12 and indemnities, Halsbury's Laws show that in respect of the interpretation of what an indemnity means that 'each case must be governed by its facts'. I do not consider that the indemnity in respect of school fees means that the husband can be in breach only if the wife incurs a financial liability. In respect of the absence of particulars in the committal grounds this is clearly a defect but again the basis of the breaches set out at paragraph 26 of the affidavit in support. I do not consider there is any injustice to the respondent in permitting the applicant to amend her notice to rely on the failure of the respondent to pay the school fees in good time and the subsequent entry of a judgment against the applicant and the seizure of her car as evidencing a breach of that undertaking to indemnify. I therefore do not consider that there is no case to answer in respect of ground 12 in amended form.

    Conclusion

    59. As I have already referred to earlier in this judgment the outcome of the hearing following my decision on the submission of no case, the hearing of evidence from the respondent and submissions was that on his own admission the respondent was found to be in contempt of court in respect of grounds 3, 4, and 9. I acquitted him on ground 12. The other grounds were either withdrawn or dismissed. I have adjourned sentencing to await the outcome of the hearing before Mr Justice Cohen in order to seek to achieve some clarity in respect of the respondent's ability to pay a fine.

Judgment, published: 22/11/2018

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Published: 22/11/2018

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