HOWARD FIELD v GIOVANNI DEL VECCHIO

This is an application for an order for committal for contempt of court made by the claimant against the defendant. I have already given a judgment in this case (on Wednesday of this week) and I set out the background to the matter then. I will simply repeat some of the most important points now.

The deceased, Mr Duggie Fields (as he was known), was the brother of the claimant, who is the administrator of his estate. Duggie Fields died in March 2021, when he was still living at 29 Wetherby Mansions in Earls Court. The defendant was living with him, and had been since about 2019. However, although the claimant became the administrator of Duggie‘s estate, he had difficulty in obtaining access to the flat and taking possession of the chattels which belonged to the estate, in particular, examples of Mr Fields’ artwork.

It appears that the defendant was negotiating for money to be paid to him in order to hand over the artwork, and the claimant was attempting to get possession of the artwork, but this failed. Eventually this claim was issued on 2 December for wrongful interference with and delivery up of goods. On 13 December, Marcus Smith J made an order, at a remote hearing in which the defendant participated by telephone, for delivery up on 20 and 21 December. That order, it appears, was not complied with. I will come back to questions of compliance in more detail.

A second application was made, this time to Falk J, who made a similar order, in similar terms, on 20 January 2022, for delivery up on 24 and 25 January. Again, there was no delivery up on those days.

This led to an application for judgment in default of defence issued on 4 February. I dealt with this on Wednesday, when I gave judgment in default of acknowledgement of service and defence. Subsequently, too, an application by notice was issued on 3 March 2022 for contempt. The notice of the hearing was given as being a three-day window from 23 March (that is Wednesday). This is the third day of those three days.

There then followed, on 7 March, an attempt by the process server engaged by the claimant to serve the application personally on the defendant. I will come back to that. Then a further application was made on 16 March by the claimant to regularise service of the contempt application if that should be necessary.

Since then, it appears that the defendant gave up possession of the flat on about 14 March. It further appears that artworks are missing from the flat, and also that damage has been done to the flat.

I come, therefore, to the committal application. The committal application in this case was, as I say, dated 3 March 2022. It provides in box 5 details of the nature of the contempt. It says the contempt is for breach of an order – in fact, two orders – and in the answer to box 7 it gives details of the two orders that have been breached; that of Marcus Smith J of 13 December and that of Falk J of 20 January. Both orders, I am entirely satisfied to the criminal standard, contained penal notices in appropriate form and, in addition, gave the statements required by r.81.4(2) of the Civil Procedure Rules.

As far as service of these orders is concerned, I have already held (on Wednesday) that the order of 13 December 2021 was served personally on the defendant and, in relation to the order of 20 January 2022, of Falk J, para.14 of her order dispensed with personal service and permitted it simply by email and post. I have been taken to the evidence of the service of the order of Falk J by email and by post and I am satisfied, to the criminal standard, that the defendant was served as required.

The contempt application, in an appendix, sets out the details of the relevant orders, the terms of the orders that matter. The order of Marcus Smith J directed the defendant, by para.1, to:

Then by the order of Falk J, dated 20 January 2022, the defendant was again directed in practically identical terms, by para.1, to deliver up to the claimant and the individuals listed in that order the artwork listed in schedule 1 to the order, until final determination of the claim or further order of the court, by providing the artwork to the claimant and those individuals on 24 and 25 January 2022. And then by para.2 of that order, the defendant was directed to permit access to the flat on 24 and 25 January 2022 to the claimant, to Ms Newman, to any one or more of Mr Tim Bignell, Ms Hooper, and Mr Fournillier of Howard Kennedy, and couriers employed by Williams & Hill Forwarding Ltd and/or Williams & Hill Fine Art Storage and Distribution Ltd., so that the claimant and those individuals could inspect and take delivery up of the artwork listed in the schedule to that order.

In the contempt application, box number 12 sets out the facts relied on as constituting the contempt of the defendant. I need not read the first two paragraphs because I have dealt with those, but the third paragraph says:

I have been taken to the affidavit evidence of Mr Fournillier, a solicitor of Howard Kennedy, in particular, and I have also been taken to the affidavit evidence of the process server, Mr Jaden Sepulveda.

First of all, in dealing with the question of service of the contempt application, I am entirely satisfied, to the criminal standard, that on 7 March 2022, in the Earls Court Road, the process server did indeed attempt to serve the defendant with an envelope containing the application and associated papers. After telling the defendant that these were important legal papers connected with a case in which he (the defendant) was involved, I am satisfied, again to the criminal standard, that he pushed the envelope at the defendant and it touched him, and that the process server let go of the envelope. Because the defendant refused to hold onto it, it fell to the floor and the defendant ran away from the process server down the road. The process server waited some twenty minutes to see if the defendant would return. He did not, so the process server picked up the envelope from the ground and took it to Wetherby Mansions. Having gained entry to the block, he left it leaning against the front door of the flat concerned.

The question I have to decide is whether that amounts to good personal service or whether, if not, I should exercise any power to dispense with personal service and to provide full recognition of what happened as sufficient service. The test for personal service has been set out in a number of cases. The most recent one, to which I was referred, is a decision of HHJ Pearce in Gorbachev v Goriev, where at para.27 HHJ Pearce says this:

In addition, I was referred to the decision of Phillips J (as he then was) in Tseitline v Mikhelson [2015] EWHC 2065 (Comm). In that case, which was a case concerning a purported service of proceedings just outside, and then inside, the Whitechapel Art Gallery in East London. The evidence, accepted by the judge in para.10 of his judgment, was on any view, the process server was able to walk up to the defendant and to tell him that he had some papers for him, and to push them at the defendant’s body, where they simply dropped to the floor or, possibly, lodged in the crook of somebody’s arm and then dropped to the floor by the arm. It does not matter which. Then, at para.44-45, Phillips J says, at 44:

That, of course, is very similar to what I have held happened factually in the present case. The documents were pushed towards the defendant by the process server so that they touched his body but, because the defendant refused to take them, they dropped straight to the ground and were left there whilst the defendant ran away down the Earls Court Road.

In my judgment, if the question is whether the envelope was left with or near the defendant, I have absolutely no doubt it was and I am satisfied of that to the criminal standard. So that part of the test is satisfied.

The second part of the test is whether the defendant was made aware that these were papers connected with legal proceedings in which he was engaged. I am satisfied again, to the criminal standard, that the process server did explain to the defendant that he was a process server and he was serving papers connected with the legal proceedings in which he was involved and that, therefore, the defendant knew very well the nature of the documents that were being served upon him. In these circumstances, I am in no doubt that the contempt application, and supporting paperwork, were personally served on the defendant.

In those circumstances, it is not strictly necessary for me to consider, therefore, whether a court should regularise service of the documents. I would only say that the law in relation to waiving or dispensing with personal service seems to be rather more complicated than it deserves to be on such an important aspect of our civil procedure. It is clear that in Mander v Falcke [1891] 3 Ch 488, Kekewich J was clear that the court could waive the requirement for personal service where the respondent was evading service.

Whether that is the only circumstance in which the court could dispense with personal service is not something which the judge in that case had to decide or which he actually dealt with. If, however, one looks at the discussion in the well-known textbook of Arlidge, Eady & Smith on Contempt (5^th ed), which I understand was published in 2019 and so before the revision of the current Part 81 of the Civil Procedure Rules, there, at para.12-40, the learned editors write:

Although that is, in my respectful view, a clear statement of what is considered to be the law, it has been thrown into some confusion by the statement in the consultation document that preceded the re-issue of Part 81, where, at p.14, in a commentary following the new r.81.5, what the authors of the consultation paper say this:

I go on to say that, had I not been satisfied that there was proper personal service of the contempt application on the defendant in this case, I would have considered that it was an appropriate case in which to treat the service attempts that were made as sufficient service upon the defendant. This because, first of all, the defendant well knew what the terms of the contempt application were, both in soft and in hard copy, by the end of 7 March, and, in any event, the defendant had tried to evade service upon him by the process server by running away after the documents had been pushed towards him. But, for the reasons I have already given, I hold that there was proper personal service of the application upon the defendant.

The question of whether, as I say, the affidavit evidence satisfies me to the criminal standard that the breaches alleged by the defendant were, in fact, committed, is clear. The affidavit of Mr Fournillier was made on 3 March 2022. What Mr Fournillier says in his affidavit, at para.12 onwards, was that he attended the flat on 20 December and that he tried to buzz the flat but received no answer. He managed to obtain access to the building through the building manager and he attended the flat by himself. There were notices on the door, stating, in handwriting of which I have seen a photograph and which says, specifically addressed to Mr Bignell of Howard Kennedy:

Then insofar as concerns the second order, Mr Fournillier says that he attended on 24 January and again he buzzed the flat but received no response. As it happens, he was accompanied by the claimant’s daughter, Ms Newman, who had a key to the building which had been provided by the manager of the building, and so the parties gained entry to the building and went up to the flat. There were no longer any signs attached to the building doorbell or to the front door of Flat 29. However, the door handle to the flat was now missing and when Mr Fournillier rang the doorbell there was no answer. He subsequently called the defendant on his mobile number but there were no responses to his calls. The solicitor considered that there was some concern about the defendant’s conduct and that they should call the police.

The Metropolitan Police attended. As it happens, Mr Fournillier is himself a former police officer and was aware of the practices of the police. The police arrived and there was then a discussion with the police. The police went upstairs to the flat and were permitted entry to the flat by the defendant. The defendant discussed the situation with the police. Eventually Mr Fournillier actually went inside the flat to join them, although the defendant initially resisted this. Discussions then took place between the police and the defendant and between the police and Mr Fournillier. It went nowhere in the sense that the defendant refused to allow Mr Fournillier to enter or to hand over any of the chattels which were the subject of the orders.

In my judgment, this evidence satisfies me to the criminal standard that the orders were not complied with. So the question I have to ask myself is what is the test for contempt?

The first point to make, as was made to me by Mr Sherwin, is that the court’s jurisdiction to deal with contempt of court applications is a very important one in the administration of justice today. In the Court of Appeal’s decision in JSC BTA Bank v Ablyazov (No.8) [2013] 1 WLR 1331 [188], Rix LJ – with whom the other judges, Toulson LJ and Maurice Kay LJ, agreed on this point – said this:

On the back of that, the test which has been applied in the context of contempt of court applications was summarised by Christopher Clarke J (as he then was) in para.150 of his decision in Masri v Consolidated Contractors International Company SAL & Ors [2011] EWHC 1024 (Comm), where he says this:

In para.155, the judge comes to this conclusion:

So in these circumstances it is clear that, although the defendant, or respondent to the application, must know the facts which actually amount to a breach, it is not necessary that the applicant proves to the criminal standard that the respondent was aware that those acts did amount to a breach, as a matter of law, of the order.

Looking then at the position in this case, so far as concerns knowledge of the orders themselves, in relation to the order of Marcus Smith J, the defendant did actually participate in that hearing and knew that the judge was making the order. In any event, Mr Fournillier explained the terms of that order to him on the telephone outside his flat subsequently, on 20 December 2021.

In relation to the order of Falk J, the defendant knew about its terms because it had been served on him both by email and by post. In addition, Mr Fournillier explained that to him in person on the occasion when he was at the flat with the defendant.

The second point is whether there was actually a breach of the orders. Did the defendant fail to act in such a way as to amount to a breach of the orders? In my judgment, I am satisfied, to the criminal standard, that he did. He refused to let the claimant’s agents into the property as directed and he failed to deliver up the chattels, as directed.

Thirdly, did he know of the facts which actually, as a matter of law, amount to a breach even if he did not know that they were a breach? In my judgment, he deliberately refused to allow the claimant’s agents access to the flat, even after the service of the orders had been explained, and he has taken no action subsequently as if to say, “I did not understand at the time but I understand now”, to try and comply with the orders or to mitigate his actions or, indeed, apply to the court to vary or, indeed, to make any kind of apology, except a minimal one in a subsequent email which I have seen and which does not amount to anything more than a recognition of the fact that he ought to have complied with the orders but in fact did not.

In these circumstances, I am entirely satisfied to the criminal standard that the defendant is in contempt of court for failing to comply with the two orders that I have referred to.

The next question is the question of sentence. Mr Sherwin has quite properly drawn my attention to a number of authorities which deal with this and, in particular, the decision of Briggs J (as he then was) of JSC BTA Bank v Solodchenko [2011], where the learned judge said that the court should pause before proceeding to the sentencing question when the defendant is not present. So that is what I propose to do.

This morning I gave judgment in this matter indicating that I found proved, to the criminal standard, the contempt of court committed by the defendant in failing to comply with the orders of Marcus Smith J, of 13 December, and of Falk J, on 20 January 2022. I said that I would pause, in accordance with the suggestion made by Briggs J in the JSC BTA Bank v Solodchenko case, at para.16, until this afternoon in order to consider the position.

I have had a most helpful address from Mr Sherwin, counsel on behalf of the claimant – still, of course, in the absence of the defendant/respondent – and he has taken me to a number of authorities which I do not think I need to discuss in any detail. But I will just mention that, in addition to the cases which he had already referred me to, such as the Solodchenko case, the Sanchez case and the Johnson v Argent case, he also referred me to another authority, XL Insurance Co. SE v IPORS Underwriting Ltd. [2021] EWHC 1407 (Comm), a decision of Cockerill J. This was a case where the judge decided, after considering the matter, that she would, having found the contempt proved, proceed immediately to sentence, even in the absence of the respondent.

It is worth making the point that the judge in that case dealt with the question of whether to proceed immediately to sentence in the absence of the respondent by reference to the checklist which was used by Cobb J in Sanchez v Oboz [2015] EWHC 235 (Fam), and other cases, including Navig8 Chemicals Pools Inc and ICBC Standard Bank Plc, and she repeated it in para.46 of her judgment. Then in para.47 she considered the application of that checklist on the actual facts of her case. I should just say that she considered, therefore, that it was right in the circumstances of that case to proceed direct to sentence.

One aspect of that case which was similar to the others was that the only evidence, and it was only slight evidence, as to the whereabouts of the respondent was to the effect that he was perhaps in Portugal but, anyway, out of the jurisdiction. I think that the court proceeded on the basis that he at least was possibly outside the jurisdiction. As she said para.47 of her judgment:

The point I am making is that here, in the present case, we have someone who has been living in the United Kingdom for a number of years, was living with the deceased, Duggie Fields, from about 2019 until his death in 2021, and continued to live in his flat until he gave it up only a week or two back, and has not been heard of since. There is no evidence to show that he has left the country, even though he is a national of the Republic of Italy and might be expected to have friends and family there. At the moment, we are in the position where we do not know whether or not he has left the country or, indeed, if he did leave the country, whether he has come back. It appears on the material before me that whether I issue a bench warrant or proceed to sentence and then issue a committal warrant, in either case the police will liaise with the immigration authorities and put a stop on ports and airports so that if he tries to leave the country this will come to the notice of the authorities, and he can be restrained, or, alternatively, if he is outside the country and comes in, notice will be given to the authorities that way and the warrant – whichever kind it is – can be put into operation.

In these circumstances, as it appears to me, and I hope I am not wrong about this, the benefits that flow from either the bench warrant or the committal warrant, so far as information of whereabouts is concerned, is much the same, then there is no especially good reason that I can see for proceeding to sentence today and further, as it were, overriding the rights to a fair trial to a further extent that are guaranteed by the European Convention on Human Rights, Article 6.

The better course, as it seems to me, therefore, is to issue a bench warrant, to defer sentencing for a period and then, if it turns out that information comes to light to show that he has already left the country and is not coming back, then a sentencing hearing can be arranged. If, on the other hand, he is in the country and he is arrested, or he tries to leave the country and he is stopped, then a sentencing hearing can take place in which he can participate and be legally represented should he so wish. The idea at the end of the day, after all, is not just to punish a person who commits a breach of an order and thereby a contempt of court. It is to try and secure compliance with the orders because that is what the claimant had embarked upon the litigation for and, despite having the orders, they have not yet been enforced. So I am concerned to do whatever is necessary to see them to be enforced but not the unnecessary expense of overriding the rights to a fair trial which a defendant otherwise has.

Accordingly, for these reasons, I propose therefore to issue a bench warrant today for the arrest of the defendant/respondent, Mr Del Vecchio, and to adjourn the sentencing hearing for a period of six weeks from today but with liberty to apply in the meantime to the claimant if it appears that any of the assumptions on which I have made this decision should prove to be unfounded and if it should be more advantageous to the claimant if there were a sentencing hearing so that the claimant can apply to the court and say, “Please can we move straight to a sentencing hearing?”

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