Cherwayko v Cherwayko (No 2): contempt, contents of application notice

Mrs Cherwayko (W) applies to commit Mr Cherwayko (H) to prison for alleged breaches of an undertaking and orders. The context is that H, as he accepts, has failed to comply with payments under a financial remedy order made by consent. W first applied under the Family Procedure Rules 2010 (‘FPR 2010’) for enforcement by such method as the court may consider appropriate pursuant to Rule 33. 3 (2) (b) FPR 2010. W now seeks to commit H for three alleged breaches of, respectively, (i) an undertaking within the financial remedy order, (ii) an order made in the enforcement proceedings and (iii) a further order made as part of a freezing injunction. This is W’s second committal application following enforcement proceedings.

H argues (i) that the notice of application fails to comply with the FPR 2010 in that it does not specify the breaches with any let alone sufficient particularity (ii) he is not in breach of the undertaking (iii) he is not in wilful breach of the orders, or at least had no real choice to comply, and alternatively relies on this as mitigation.

Mr Daniel Bentham appears on behalf of W and Mr Duncan Watson on behalf of H.

W and H were married and are now divorced. They have 2 children, living with W in London. H is an oil trader; he says now based in Dubai. W is a full- time home maker. H was at the time of the divorce and until relatively recently CEO of Mart Resources Inc, a publicly listed Canadian company, trading in Canada and USA.

W has been represented by Stewarts Law throughout. H was represented throughout by Vardags until they came off the record on 19 June 2015.

On 24 February 2014 the parties reached agreement on their respective financial remedy applications following their divorce at a private FDR presided over by Sir Hugh Bennett.

On 26 February 2014 Mostyn J made an order by consent in terms reflecting the parties’ agreement.

By paragraph 6 of the order H was to pay a lump sum sufficient to redeem the mortgage on the matrimonial home and other lump sums to discharge the outstanding finance debt on W’s Bentley motor car and to refund the replacement for a particular chattel, and to transfer to the wife all his estate and interest in the former matrimonial home, all no later than 16.00 on 26 May 2014.

By paragraph 7 of the order H was and is to pay to the wife separate lump sums of:

By paragraph 8 of the order H is to make periodical payments to W at the rate of £350,000 pa, reducing to £200,000 pa (£16,667 pm) after H’s compliance with paragraph 6 of the order.

By paragraph 12 of the order H is to pay periodical payments for the children at £35,000 pa payable monthly in advance until the age of 18 or the completion of full time secondary education if later, together with school fees.

In support of those terms H undertook in recital 5 (inter alia):

The order records an agreement at recital (f) that “the 5,000,000 Mart shares to be held in escrow shall be released to the husband in three equal tranches upon his compliance with each of his successive obligations under paragraphs 7a, 7b and 7c” (referred to in paragraph above).

An email dated 11 March 2014 sent to Stewarts from the corporation secretary of Mart stated that he had received notification from H that he was in the process of delivery of two share certificates for an aggregate of 5,000,000 common shares and had also “confirmed to me that he will not deal with the aforesaid certificates while they remain in escrow with your firm”.

H defaulted on the lump sums due on 26 May 2014. W issued an enforcement application under FPR 2010 R33.3 (2) (b) on 1 August 2014 (the first application to enforce the financial order). It took over 7 weeks to effect personal service on H. Thereafter, in accordance with court orders, H has been served with all relevant documents in respect of the first and second enforcement and committal applications on each occasion through his solicitors by email and post, save for one occasion, when he was between solicitors, when he was served direct by the same method. The court has deemed this to be good service.

On 13 October 2014 Mostyn J ordered H to file a statement supported by a statement of truth including documentary evidence setting out why he has not complied with the financial order dated 26 February 2014; his proposals for compliance; and his current financial circumstances listing a wide range of information. A hearing was listed and H was ordered personally to attend.

H failed to comply with these orders and W issued committal proceedings (the first committal proceedings) on 26 November 2014. On 27 November 2014 Mostyn J ordered H to attend the hearing of W’s committal application.

H did not attend the hearing on 10 December 2014, although he did instruct solicitors and counsel, who attended. He had had a week from service to prepare for the hearing, which Mostyn J plainly considered to be sufficient in the circumstances. In his judgment ([2014] EWHC 4252) Mostyn J found H to be in breach (‘a blatant and defiant contempt’) on the basis that he had not attended court as ordered nor provided information as specified in the previous order. He made a committal order suspended until the payment of a sum of £500,000, in addition to a payment of £510,000 paid the previous day, and a further payment of £552,000 promised on that day, and on condition also that H file by 17 December 2014 a statement, supported by a statement of truth, setting out why he had not complied with the financial order, his proposals for compliance, and his current financial circumstances, defined to include his shareholding in Mart Resources Inc, and two other named entities. The sums were paid, and H filed a statement purporting to comply with the terms of the suspension on 17 December 2014. Mostyn J rejected the submission for W that the contempt was so grave as to demand an immediate term of imprisonment. He reminded himself that a committal order has two elements; namely coercion and punishment, and the two have to be carefully balanced. He concluded that on balance H’s defaults at that time did not justify an immediate term of imprisonment.

H then defaulted on payments due on 26 February 2015, 1 and 21 April and on 1 May 2015, save that he made a payment of over £14,000. Just over £1.7m remained unpaid by the due date.

W made her second application to enforce the financial order pursuant to FPR 2010 R33.3 (2) (b) on 6 May 2015 setting out the breaches in payment and made a without notice application (save that Vardags were informed of it by telephone) the same day to Roderic Wood J, again supported by an affidavit of her solicitor Ms Ward.

Roderic Wood J listed W’s application to enforce for a hearing for 1 hour on 22 June 2015 and a further 2 hour hearing on 3 July 2015, since the Rules do not permit H to be compelled to provide the disclosure in advance of the first (i.e. 22 June 2015) hearing:

In mid-May 2015 after the issue of this enforcement application W through Stewarts discovered that Mart was subject to a takeover and that the transaction was due to complete on or about 16 June 2015. On 21 May Stewarts wrote to Vardags to seek to ensure that the cash proceeds of the “security” shares would be paid to Stewarts pending the outcome of enforcement proceedings and sought other measures to ensure preservation of assets. Vardags did not proffer any undertaking nor disclose what H had done with the shares.

In connection with the enquiry Mart’s lawyers informed Stewarts that in October 2014 H had reported to Computershare, Mart’s registrar and transfer agent, the loss of 5,000,000 common shares of Mart. H had first informed Computershare of the 'loss' on 16 October 2014, three days after the date of the first enforcement hearing. H had sworn an affidavit of loss in which he deposed that the certificates (the numbers of which confirmed them to be those deposited by way of security with Stewarts) were lost, stolen destroyed or misplaced. Computershare issued replacement certificates. Mart claimed no knowledge of these events. In December 2014 H sold over 5 million Mart shares including those 5 million for which he had obtained replacement certificates and which were subject to the undertaking, on the Toronto stock exchange.

H’s ‘affidavit of loss’ sworn by him and dated 21 October 2014 in support of the application for the replacement share certificates, now supplied by Mart, states that:

It is W’s case that this was obviously and knowingly untrue since H had deposited the certificates as security, in escrow, in accordance with the undertaking, and informed Mart of this, and agreed that there would be no dealings with the shares.

On 4 June 2015 Hayden J made a worldwide freezing order on W’s without notice application. The order specifically recorded that H was not thereby prohibited from spending £2,000 a week towards his ordinary living expenses and £15,000 on legal advice and representation (a single sum), or from complying with his financial obligations to W.

H was ordered within 7 days of service, (in fact 12 June 2015) to the best of his ability, to “inform the applicant’s solicitors of all his assets world-wide exceeding [a specified amount] whether in his own name or not and whether solely or jointly owned giving the value, location and details of all such assets. This shall include details of all money or assets due to the respondent from or in respect of Mart Resources, whether by way of cash, share proceeds, consultancy fees or otherwise”.

W has obtained a ‘mirror’ freezing order in Canada.

Service was effected as ordered by first class post and email on Vardags.

Vardags made an application to come off the record which was granted on Friday 19 June by Cobb J.

The hearing came before me on 22 June 2015. W was represented by Mr Bentham. H did not appear and had filed nothing. On the morning of the hearing Mr Bowers, solicitor with McCarthy Denning, sent in a witness statement sworn by him stating that he had been approached over the telephone the previous day by H, and was not yet formally instructed. He appeared in court. I agreed that he might speak to relay H’s instructions. Mr Bowers’ witness statement set out H’s case as related to Mr Bowers, dealing with H’s asserted reasons for non-payment, but not the alleged breaches. H asserted, through Mr Bowers, that Vardags had not been paid.

W indicated through Mr Bentham that she would issue committal proceedings and asked me to abridge service and order that the second part of the hearing on 3 July be used to hear that application.

I gave Mr Bowers an opportunity to take instructions over the telephone from H, which he accepted, and to read the affidavits of Ms Ward, and he told me that he had had sufficient opportunity.

Mr Bowers asked me to relist the second part of the hearing some weeks hence to give time for service and to instruct counsel. I ruled against him.

The facts and matters relied on by W were fully set out in an affidavit dated 5 May 2015 by her solicitor, Ms Ward, which had been served by email and post in accordance with court orders. The matter was longstanding. Not to retain the 3 July hearing and to list another hearing would have lost more time. I directed that the fixture on 3 July be used for the committal hearing, before me, ordered that H be served by email and post, and that that be deemed good service, and abridged time for service. I renewed the freezing injunction, slightly amended, as discussed and ruled on in court. I issued a bench warrant against H.

I made a decision in principle that H should pay the costs of the hearing on 22 June 2015 since the hearing had been ineffective save for directions arising out of H's defaults. I reserved the issue of whether I should order costs to be paid on the indemnity or standard basis, and whether to order detailed assessment, and in what sum.

H in fact had in excess of 10 days to deal with the committal application after service. I am told that shortly before the hearing on 3 July Counsel instructed for H by Mr Bowers (I do not know precisely when) had to withdraw for personal reasons very much at the last minute and the brief was returned to Mr Watson. Mr Bentham appeared for W. H was absent again on 3 July. Mr Watson’s position statement was filed on the afternoon before the hearing. It did raise the point which became a major focus at the 3 July hearing, namely that the alleged breaches had not been sufficiently particularised, but did not refer to the case of Harmsworth v Harmsworth [1988] 1FLR 349 in support of that argument, which was significantly developed at trial. Mr Watson did argue in the position statement that H was not in breach of the undertaking because he has done what is required of him, i.e. lodge the certificates.

A witness statement from H dated 2 July 2015 was served and filed just before the court hearing commenced on 3 July. It purported to set out his financial affairs, explain non-compliance with orders for capital payments, and respond to the evidence filed by W’s solicitor in support of the notice of application. It had many pages of exhibits.

Mr Watson had a full opportunity to address me.

I ruled against the admission of a schedule attached to Mr Bentham’s skeleton argument because Mr Watson submitted to me that it was in effect evidence, rather than submissions, without ruling on the merits of the issue.

In deference to Mr Watson’s submissions to this effect, and again without ruling on the merits, I ruled that Mr Bentham might address me on legal principles and any authority giving guidance as to penalty, but not make any submissions on the merits, and I would disregard any already made.

The hearing on 3 July had overrun its estimate and in any event I needed to consider H’s submissions and witness statement. I adjourned for written judgment on the questions of breach and ruled that I would take written submissions on penalty, if breach was proved, and also deal with costs. Counsel accepted this.

The decision in Harmsworth set out a strict test and on the face of it presented the court with some difficulty as to how to deal with non-compliance with the rules.

Particularly in a case where the liberty of the subject is engaged, for the judge to carry out independent research without calling on counsel is inherently unsatisfactory. The judge’s research may be deficient and has the potential to create unfairness.

Whilst preparing this judgment I therefore asked counsel to assist me as to the differences between the waiver rules in existence when Harmsworth was decided and the present rules, and whether, in any event, there was other relevant authority.

Mr Bentham put in further submissions after the hearing as a result of my request. He says that he had been unable to address the Harmsworth argument (i.e. non- particularisation in the notice and inability to waive the defect) at the 3 July hearing because reliance was placed on it so late. He now relies on more recent authority to the effect that, at least to some extent, Harmsworth and its predecessors are no longer good law. He has made brief further submissions about the Rules as I requested, and with reference to that authority. Mr Watson has responded. In consequence my task has been made simpler. In retrospect (i) Mr Bentham ought to have asked me for permission to put in further written submissions, and (ii) I ought independently to have appreciated that I needed this assistance. Mr Watson apologises for the lack of notice occasioned by the lateness of the return to him.

As a result this judgment has been delayed. I handed down a written ruling on 24 July with the full judgment to follow. I invited representations on penalty and costs at the time of handing down that ruling.

W’s committal application alleges 4 breaches, contained in box 3 of the standard form. Box 3 of the application is headed ‘What order are you asking the court to make and why’. Box 3 asserts breach of :-

That is all that was said as to the alleged breaches in the notice of application to commit, which accordingly simply specified the paragraph numbers of the undertakings/orders allegedly breached without either specifying their terms or in what manner they were said to have been breached.

The note below box 3 states, in italics “Please attach a draft copy of the order you are applying for’. The draft order accompanying and served by email with the notice of application to commit specified in paragraph 3 the precise terms of the undertaking and by paragraphs 4 and 5 the precise terms of the orders, and paragraph 7 specified the breaches to be recorded by the court as being of:-

Ms Wards’ affidavit in support was served by the same email as the notice of application and draft order. In his written submissions for the 3 July hearing Mr Watson had described Ms Ward’s affidavit as “attached to the application” and stated that he understood that H was preparing a witness statement dealing with his responses to the allegations and setting out his current circumstances. In submitting written commentary on the draft judgment, and in contrast to what was in his position statement, Mr Watson stated that it was impossible to establish whether the draft affidavit was attached to the application notice since it was simply received by email with the application. The contents of Ms Ward’s affidavit were not specifically incorporated in the application notice, but it was referred to. Paragraph 10 of the printed form of the application notice poses the question “What information will you be relying on?” The box entitled “the attached statement” was ticked, but it was not expressly referred to, or indeed referred to at all, otherwise. Ms Ward’s affidavit contained the allegations but particularised them in more detail and consistently with the application notice and draft order. The terms of the undertaking were set out. In summarising the alleged breach of the undertaking her affidavit records at para 9 that H “has dishonestly obtained replacement share certificates to those we were holding in escrow as security for the outstanding lump sums and then disposed of those shares in breach of his undertaking given to the Court on 26 February 2014”.

The relevant part of the order of 6 May 2015 was set out in the affidavit and it was stated that “the respondent was required to personally attend the hearing listed on 22 June 2015, and did not produced (sic) the required disclosure”, and (after setting out the relevant part of the freezing order dated 4 June 2015 requiring him to provide details of his worldwide assets) “the respondent has not provided us with those details”.

H’s affidavit attempts to explain his non-payment of the lump sums, and apologises for this, and for obtaining the replacement certificates and selling the shares. He asserts that he does not believe that this is a breach of the undertaking since he used the proceeds to make payments to W. He does not address the evidence or assertion that he misled Computershare to obtain replacement certificates. Mr Bowers had not addressed this either in his 22 June affidavit, and this was pointed out to him in court. H claims that he was unable to pay Vardags because of the freezing injunction, notwithstanding that it is subject to exceptions as recorded above. At the hearing of 22 June Mr Bentham had drawn the court’s and Mr Bowers’ attention to the provision which permitted H access to funds for living expenses and that W had agreed in correspondence to increase the allowance for withdrawal for legal fees from £15,000 to £35,000. H apologises for his failure to attend court on 22 June and file the documentation as provided by the order of 6 May 2015. He says that he has had to limit his travel as a result of health problems and that he has been unable to attend hearings because he has been required to attend business meetings in Dubai and Africa. H states that he has demonstrated his current resources. H repeats the assertion that his ability to raise moneys to pay his solicitors was inhibited by the terms of the freezing order and that Vardags had come off the record due to lack of funds, and thus he had not filed the documentation as ordered. H does not deal with the breach of the disclosure requirements in the 4 June freezing order.

I have not been able to work out what conclusions I should draw from the exhibited material. H says that it demonstrates that he does not have the funds to pay W, but I am not able to draw such a conclusion. In any event, the financial remedy order still stands.

This application is governed by Part 37 of the Family Procedure Rules 2010. Rule 37.10 (3)(a) provides that:-

“The committal 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 an affidavit.”

The notes to the Rule at p2270 in the Family Court Practice 2015 state:-

There is no reference in the notes to Rule 37.10 (3) (a) to Harmsworth or any other authority. Harmsworth is only referred to once in the Family Court Practice: it is the single authority cited in support of the statement in the Procedural Guide in the box ‘Committal applications (general)’ that “the affidavit or statement in support should narrate the facts relied on, but the list of alleged breaches must be given in the application notice” and FPR 37.10 is referred to. (That is not the full extent of what Harmsworth decided- see below.) It is not suggested in the Family Court Practice that any part of the Harmsworth decision has been overruled.

By FPR 2010 PD37 13.2 “The court may waive any procedural defect in the commencement of or conduct of a committal application if satisfied that no injustice has been caused to the respondent by the defect.”

Harmsworth was decided in 1988 and succeeds a long line of authority on committals. The central point in Harmsworth, per Nicholls LJ, as he then was, is:-

“Does the notice specify with sufficient particularity to enable the husband to know from the notice what were the alleged breaches so as to enable him to see the case being made against him.” - following Chiltern District Council v Keane [1985] 2 All E. R. 118.

Nicholls LJ said that:

In Harmsworth it was conceded on behalf of the Appellant that the points argued were technical. The court recognised that but concluded that the defect was not remedied by the affidavit in support.

“From the notice itself the person alleged to be in contempt should know with sufficient particularity what are the breaches alleged, a fortiori, in my view, where the document referred to is an affidavit, which does not set out the particulars in an itemized form, but which leaves the respondent to the committal application to extract and cull for himself from an historical narrative in the affidavit relevant dates and times and so forth, and to work out for himself the precise numbers of breaches being alleged and the occasions on which they took place.” as Nicholls LJ put it.

Previously in the judgment Nicholls LJ had commented that the wife’s supporting affidavit “in the usual narrative form” was deficient in that it was unclear, lacking in dates and insufficiently particularised.

The court said that if lengthy particulars are needed, they may be included in a schedule or other addendum either at the foot of the notice or attached to the notice. But a reference in the notice to a wholly separate document for particulars that ought to be in the notice is a different matter and “cannot cure what otherwise would be a deficiency in the notice”.

However “every notice of application to commit must be looked at against its own background. … If for example the defendant is subject to an injunction to leave a stated house no later than a particular time on a particular day, then it would be sufficient to say that he had failed to comply with that order, because it only permits of a single breach, namely failure to leave the house at the time stated. But where the order is not in simple form and it is possible for the defendant to be in doubt what breach is alleged, then the notice is defective.”

The Court acknowledged that it had power under s 13 (3) Administration of Justice Act 1960 to substitute a different order on appeal. It provides, under the heading “Appeal in cases of contempt of court” :-

The Court has a discretion to waive the irregularity but “such is the importance which the law attaches to the liberty of the subject that normally the procedural rules must be strictly compiled with, and it would only be in an exceptional case that, in the absence of the consent of the respondent, it would be just to waive an irregularity in a committal application, and it would only be in an exceptional case that in the absence of such consent the court would exercise its discretion and waive such an irregularity.”

It was argued that any deficiency in the notice goes to the vires of the court so that a defective notice is not a notice at all, and any subsequent proceedings on it would be null and void and a court would have no discretion to waive the defect. Nicholls LJ recorded the argument but declined to deal with it in the context of the admitted breaches.

Woolf LJ, as he then was, agreed that the notice must comply with the rules and that in an appropriate case it is possible to incorporate another document to give the respondent necessary particulars, so long as the notice still complies with the relevant rules. However the notice was not to be regarded as though it was an indictment in criminal proceedings. Particulars have to be given but not in the same way as separate counts must be put in an indictment.

He also said that if a notice is irregular and the court cannot, exceptionally, disregard the irregularity, so that the application must be dismissed, fresh committal proceedings may be brought.

He agreed that the court had power to waive the irregularity but if there is no proper notice to show cause the court should not exercise its powers under s 13 (3) AJA 1960 since “a defect can materially affect the fairness of the proceedings, so that a respondent does not have the opportunity to deal with the matters alleged against him”.

As is commented in the earlier cases, the court said that the Rules governing the contents of the Notice to Show Cause, as it then was in the High Court, and the Notice, in the County Court, did not specify precisely what the notice must contain.

Relying on Harmsworth, Mr Watson submitted that all its principles still require to be observed. The rule is that full particulars must be given in the notice of application and in it alone. The reasoning behind the rule is not an empty technicality but goes to the foundation of the principle that the alleged contemnor should know upon service of the notice and not from accompanying documents precisely what was alleged. He submitted that:-

Mr Bentham responded that the application notice was served together with a draft order of committal, containing proposed recitals as to particulars of the orders/undertakings and particulars of breach relied on, which was sufficient in the circumstances to give notice.

Mr Watson argued that this was simply insufficient. The draft order was not incorporated in the application notice, and indeed its terms not referred to in it. In any event, it was drafted on the assumption that the findings sought had been made, and although it did specify the findings sought and that they constituted breaches, the format was confusing, and this applied equally to all three breaches relied on. The affidavit simply could not be relied on at all. In any event its assertions were not incorporated in the notice either. He submitted that this was not an exceptional case and there should be no waiver. He also submitted that there was no power to waive the breaches at all because a defective notice was not a notice at all, relying on Nicholls LJ’s comments, above.

In his email in response to my enquiry Mr Bentham referred me to three authorities. All three principally concerned defects in the order. In M v P, Butler v Butler [1993] 1 FLR 773 the defect was that the committal orders were not served. The Court however addressed the wider issue of defects in the application as well as the order, since earlier authority stated inter alia that “no alleged contemnor shall be in any doubt as to the charges which are made against him”. Lord Donaldson of Lymington MR referred to the “rule of law which has evolved, or seems to be evolving, that failure to comply with the rules is fatal to the lawfulness of the committal, and that the court’s powers under s 13 (3) Administration of Justice Act 1960 permitted breaches to be waived only in exceptional cases” but:

Scott LJ pointed out the "sharp distinction" between errors affecting the process leading to a committal order and a procedural error following it.

In Nicholls v Nicholls [1997] 1 FLR 649 the Court of Appeal confirmed that as long as the contemnor had had a fair trial and the order had been made on valid grounds, a defect either in the application to commit or in the committal order would not result in the order being set aside unless this was required in the interests of justice.

Lord Woolf MR commented that the provisions of s 13 (3) AJA were drafted in generous terms and where a defect in the committal application for a committal order or the committal order itself causes no injustice “you would expect that powers would enable this court to overcome a purely technical error which has not caused any prejudice.” However, “in the past the courts have indicated that strict adherence to the rule is required and any significant departure from them would result in a committal being set aside irrespective of the fact that such a result would be far from just.”

But, having referred to M v P, Butler v Butler, he agreed that:

The court itself has a very substantial interest in seeing that its orders are upheld. If committal orders are to be set aside on purely technical grounds which have nothing to do with the justice of the case then it has the effect of undermining the system of justice and the credibility of the court orders. In the future therefore it should not be necessary to revisit the authorities prior to the decision in M v P, Butler and Butler. It should be recognised that Order 59 Rule 10 and Section 13(3) of the 1960 Act give the court a discretion which they are required to exercise. To decline to exercise that discretion because of a technical error in the notice of application to commit or the committal order itself, in the absence of any prejudice, is to derogate from that discretion.

The Court of Appeal in The Mayors and Burgesses of The London Borough of Hillingdon v Vijayatunga [2007] EWCA Civ 730 adopted the same approach.

Mr Watson does not take issue with these authorities.

The line of authority identified by Mr Bentham including and following M v P, Butler v Butler, goes to the important issue of waiver rather than the issue of what constitutes proper notice of what is alleged. I have not been referred to or identified any authority subsequent to Harmsworth which addresses that issue and it is significant in my view that neither have the authors of The Family Court Practice.

The court in family proceedings now has specific power to waive defects under FPR 2010, defined in terms which reflect the foregoing authority, as opposed to the general power exercised in Harmsworth.

In my view the basic premise of Harmsworth is still good law (and the principle was confirmed in M. v P, Butler v Butler) that an alleged contemnor must be informed of the allegations against him with particularity. Nicholls LJ’s test “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 breaches alleged?” is still the right one. Harmsworth has not been specifically affirmed or overruled in respect of that principle, but it is wholly consistent with and obviously the foundation of FPR 37 10 (3) (a), and supports the comments to the Rule in the Family Court Practice 2015.

The requirements are not a mere technicality. They go to the fundamental issue of whether enough information is given to permit the alleged contemnor to meet the charge: as specifically stated by Woolf LJ in Harmsworth.

In Harmsworth when Nicholls LJ stated that the relevant information and particulars must be in the notice itself, he made three separate though interrelated points:

FPR 2010 37.10 (3) (a) maintains the important distinction between the contents of the notice which sets out the charges, and the affidavit which provides the evidence in support. In the standard form printed application notice this distinction is maintained. Question 3 asks ‘What order are you asking the court to make and why?’ That question is directed to the pleaded assertions rather than the evidence/ facts relied on, which is governed by question 10 headed ‘What information will you be relying on?’ with four boxes to be ticked: ‘the attached statement', the petition, the affidavit in support of the petition, and ‘the evidence set out in the box below’. This is not an idle distinction. It is purposeful. The rules are based upon and reflect the underlying principle that the alleged contemnor must know what he/she is said to have done in breach of the order/undertaking with sufficient particularity so as to be able to meet and address the allegation. I am not suggesting that the Rule or its underlying principle can be disregarded. I accept that the Rules require particularisation, although do not precisely specify in what manner. I accept that the provision of those particulars in the affidavit in support in this case itself does not comply with the Rules. I accept also that in this case that although the particulars of breach are contained in the affidavit in support, they could have been provided in the body of the notice. And the more complex the assertion, the more the need for particularisation: as in this case, where the breaches of the orders are straightforward simple omissions, whereas in respect of the undertaking, what acts were done, and in what manner it was breached, needs to be set out.

It is no longer the law that defects in the notice can only exceptionally be waived. The test is the interests of justice, and whether the alleged contemnor has suffered any injustice or prejudice. The court has to address the fundamental point: did the alleged contemnor have enough information to meet the charge?

That the notice should be distinguished from the evidence in support recognises the distinction between proposition and fact, which is extremely important. It does not create a principle to be applied rigidly so as to create injustice. I do not see what Lord Nicholls said as preventing a court in principle from waiving the defects in the notice on the basis of the contents of the affidavit in support under the current rules and following more recent authority.

In my view a carefully drafted, itemised affidavit or other document which sets out the relevant terms of the orders/undertaking, and particularises the breaches, can, depending on the circumstances and the context, justify waiver of a defect in the notice with which it is served under the FPR.

In Harmsworth the Court recognised that it should look at the context in which the application is made. In contrast to Harmsworth this is not a multi-incident harassment case, but concerns three separate individual alleged breaches, each wholly distinguishable from each other, and each supported by a clear assertion and particularised by a statement of facts, very like in fact those contained in an indictment, separately and clearly set out in the draft order and the affidavit of Ms Ward.

FPR Rule 37.10 (3) (a) must require some focus on the context in order to interpret what may be required by way of particulars. There is a still a degree of judgment and discretion to be applied to what the notice should contain by way of particularisation and the Rules are not wholly prescriptive as to what is in fact required, perhaps inevitably, since circumstances may vary widely.

The commentary in the procedural guide in the Family Court Practice that there must be a ‘list of breaches’ does not refer to particularity. My view is that the degree of particularity must always depend on the context and the answer to the question “what needs to be said in order to permit the respondent to meet the charge”.

Nichols LJ’s discussion of this argument does not suggest that he found it a compelling one, and it can no longer be sustained in the light of the M v P, Butler v Butler line of cases. In any event the application could be re-issued.

The Rules are clear about some things that must be in the notice.

In the notice here the grounds are identified separately and numerically as the Rules provide. Dates are not identified but no precise date could be identified. The failure to include any reference to dates is in breach of the Rules. That is a technical defect. Precise references to the orders and their dates, paragraph numbers and dates of the undertaking and the relevant parts of the orders were set out in the notice of application.

The Rules do not require the terms of the relevant order or undertaking to be included in the notice. It must depend on the context whether it is necessary to recite the terms of the order. In my view as a general proposition the requirement for particularity as to what is alleged must relate to information which lies with the applicant alone and which may be disputed by the respondent, rather than a court order which is a matter of record. The contents of the orders must be known or presumed to be known to the respondent, or at least be ascertainable by him, and although to avoid dispute it may be advisable to recite at least the themes of the order or undertaking, in order to explain the alleged breach, which may otherwise be ambiguous, it is not a requirement.

The relevant paragraphs of the orders specify that H must attend court and produce or file the documents specified. The orders are simple and breach could take only one form.

The allegation as to the breach of the injunction is not straightforward and in my view the notice does not comply with Order 37 in failing to provide any particularity.

Mr Watson did not assert that at the date of trial H had in fact suffered any prejudice in defending the application, save insofar as he says he did not have the orders with him when the notice was served.

The affidavit was served with and referred to in the application notice, as was the draft order.

The order defectively does not specify the date or time bracket of the alleged breaches. This defect should be waived.

If, contrary to the view above, the notice is defective in failing to specify the terms of the undertakings/orders, this omission should be waived.

If, contrary to the view above, H’s breach of the orders to attend court and provide documentation needed to be particularised in the notice, this omission should be waived.

I accept that H’s alleged breach of the undertaking should have been particularised. This omission should be waived. H did not have to trawl through undigested material in order to find out of what he was accused. The allegation was particularised in the draft order and the affidavit in support.

W’s case was clearly set out in the draft order and in her solicitor’s affidavits. H has had ample opportunity to respond and he has responded with selective admissions and purported explanations.

It is open to W to reissue her application in proper form on precisely the same grounds, or for the court to order a new trial. That would be wholly wasteful.

The totality of the documents served on H would have left him, or indeed any reasonable person in his position, in no doubt as to the case he had to meet.

A number of criticisms regarding the application notice are borderline. Even if the totality of those criticisms was established the sufficiency of the information overall is not borderline and neither is my view as to the interests of justice.

It is in the interests of justice to waive all defects in the notice of application.

I therefore waive the defect(s) and decline to dismiss the application to commit.

It is not for H to prove anything, but, as Mr Bentham argues, the primary evidence relied on in respect of the obtaining of the replacement shares comes from H’s own sworn statement in support of that exercise. He must have known it was false.

H’s case is that he lodged the shares and therefore complied with his undertaking. Mr Watson submits that the words “to stand as security” and “held in escrow until the husband’s compliance” are descriptive only, simply add context, and do not form part of the undertakings. Mr Watson submits that H complied with his undertaking as he did lodge the shares.

I disagree. The undertaking must be looked at against the background of a husband who had agreed a raft of provisions which were stated to be designed to protect funds and assets from which payments due to W would be satisfied. The whole point of the undertaking was the provision of security. The undertaking has to be read as a whole. It also has to be read in context and in conjunction with undertaking (b) and with recital (f) (the agreement for security). W relied on the undertaking. (see paragraphs 12 and 13 above)

H confirmed to Mart that he would not deal with the certificates whilst they remained in escrow. That did not form part of the undertaking, but it demonstrates that he knew what was required and acted deliberately.

Escrow entails deposit for security, is based on contract, and in this case the contract is between H and W. The depositee is not a party.

The undertaking to deposit the share certificates as security was meaningless unless the certificates were security for the payment due. H knew from undertaking (b) that there were to be no dealings with the shares. He did not inform W or her solicitor that he had realised them.

Lodgement is not a single but a continuing act: it is not just the act of lodging but the keeping of an item, usually a document, with a third party, and the continuing nature of the act of lodging is demonstrated by the word ‘lodgement’ in undertaking (b). For H simply to perform the act of depositing the certificates would not have been to lodge them, for instance if he had handed them in and then taken them straight back. The shares were to be held until released by agreement after H complied with the payments.

H’s actions deprived the certificates of their character as security.

Their being held in escrow was fundamentally undermined by H’s obtaining the substitute share certificates.

What was lodged after H obtained replacements was not the share certificates. What remained with Stewarts were worthless pieces of paper. The share certificates were in H’s possession.

H has admitted that he realised the shares. He has apologised for the same. He has not dealt with the assertion that he misled Computershare/Mart to obtain the replacement certificates, but he could have done so. He has not challenged it.

The word ‘wilful’ does not mean malign or ill intentioned. It means knowingly and deliberately.

H plainly knew that he was disobeying court orders and an undertaking. He does not seriously suggest that he was not in knowing deliberate breach. H’s subterfuge and untruths demonstrate that.

He seems to be relying on an argument akin to duress. But what he describes is not duress, so I do not need to decide whether duress is a defence to breach, or whether it is simply mitigation. I am inclined to the view that it is the latter.

H has not produced any medical evidence to support his case for non-attendance. Although time was abridged he still had opportunity to obtain it. In any event H says only that he had been advised to “limit his travel” and sets out where he has had to go on business. He provides no compelling evidence as to why business commitments took precedence over attendance. He plainly had choices. The requirements of the orders were plain, simple and straightforward.

Whether H could have accessed legal advice or not, he was under a personal duty to provide documentation and information as to his means. He made absolutely no attempt to do so.

H deliberately misled Computershare and obtained replacement certificates and sold the shares in breach of his undertaking.

I find beyond reasonable doubt H to be in wilful breach of undertaking (a) in the order of 26 February 2014, to lodge the share certificates to be held by way of security in escrow, pending payment of the lump sums, by obtaining replacement certificates and realising the shares; and of paragraph 3(a), 4 and 6 of Order 6 May 2015, by failing to attend court and provide the specified documentation, and paragraph 18 of Order 4 June 2015 by failing to produce the specified information.

I shall take submissions on penalty and costs in writing. I shall convene an oral hearing if requested.

The Rules are clear and should be complied with. Their importance is underlined by the court’s power to waive defects, but only in the interests of justice. Nothing in this judgment is intended to imply that the Rules can be disregarded.

The court will not waive compliance with the rules in the notice as a matter of routine, and waiver is not just a formality.

There may be cases where an application will have to be dismissed because of a defect in the notice, which does cause real injustice, and cannot be rectified at trial, or at any rate the application may have to be adjourned at inconvenience and expense, or even reissued.

This is not an invitation to prolixity or over- inclusivity in drafting notices. It does require attention to be given to the contents of the Notice, and it would be prudent to err on the side of caution in giving particulars.

I note that the 26 November 2014 application notice to commit had attached to it Annex 1, as referred to in Box 3 in that form ‘Please see Annex 1 hereto’, which asserted breach of the order of 10 December 2014 and recited the term allegedly breached. Why the same practice was not followed on this application I do not know.

In this case I have concluded that it was not necessary to recite the terms of the orders, because of their simplicity, but that the undertaking should have been summarised, and the breach identified, notwithstanding the clarity of Ms Ward’s affidavit and undertaking. As a matter of general practice (and as in the 2014 application) :-

In retrospect the undertaking could have recorded that H was not to deal or induce anyone else to deal with the share certificates or the underlying shares, but what he did was devious and unpredictable, and not every ingenious method of circumventing an undertaking can be foreseen, and injunctions/undertakings should not be burdened with too many refinements. It may be prudent however to give some thought to drafting orders/undertakings in such a manner so as to obviate obvious potential breaches and/or make it clear what is the underlying purpose of the provision.