Olu-Williams v Olu-Williams

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.

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.

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.

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

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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

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;

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

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:

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:

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

The principles are:

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:

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

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.

The following statutory provisions are relevant.

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

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

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.

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

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.

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.

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.

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.

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.

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.

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

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

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.

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.

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

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.

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.

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.

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

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.

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.