Phillips & Anor v Symes & Anor

Affidavits purporting to comply with undertakings supporting a suspended committal order do not become ineffective merely because the deponent declines cross-examination. The court must first decide whether there is a prima facie case of non-compliance. It may then permit the deponent a further opportunity to comply, conditional upon cross-examination directed towards compliance.

That examination should remain distinct from a general post-judgment examination and from proceedings alleging fresh contempt. A person may claim privilege against self-incrimination in fresh contempt proceedings, but not when the sole question is whether conditions attached to an existing suspended sentence have been fulfilled.

Apparent bias arises where a fair-minded and informed observer would conclude that there is a real possibility of bias. The principle extends to apparent bias against a material witness.

The administrators of a deceased partner’s estate pursued proceedings concerning a partnership dealing in antiquities. Following findings of contempt, the judge imposed a 12-month sentence of imprisonment on Mr Symes, suspended upon undertakings intended to identify and preserve partnership assets.

The Court of Appeal considered three applications. The first challenged a finding that a particular statue had been wholly owned by a partnership company. The other applications challenged an order requiring cross-examination concerning compliance, assets and further alleged contempts, and the judge’s refusal to recuse himself because of comments and conduct concerning two potential witnesses.

The central procedural questions were how purported compliance with undertakings should be tested, how that process should relate to fresh contempt proceedings and general post-judgment examination, and whether the judge’s treatment of the potential witnesses created an appearance of bias.

1. Disposition. The court refused permission to appeal the finding concerning ownership of the statue because Mr Symes had no sufficient interest in disturbing it. It granted permission on the cross-examination issue and allowed that appeal. It dismissed the application for permission to appeal the refusal of recusal.

2. Affidavits purporting to comply with undertakings could not be treated as though they had never been served merely because the deponent declined cross-examination. The claimants first had to establish a prima facie case of non-compliance. If that case was established, Mr Symes could be allowed a further opportunity to comply, but the court could require him to submit to cross-examination on the existing and any further evidence. If he refused, the affidavits remained admissible and their weight was for the judge.

3. Cross-examination intended to secure compliance with the undertakings had to be kept distinct from a general post-judgment examination directed towards tracing partnership assets. The judge misdirected himself by blending those purposes. Any general examination should follow the ordinary procedure and would ordinarily take place before a master.

4. The privilege against self-incrimination was available in proceedings alleging fresh contempts, including any contempt based on breach of the operative order. It was unavailable where the only issue was compliance with the conditions attached to a sentence already imposed for an established contempt. The latter process concerned implementation of the existing sentence, not a fresh application to commit.

5. The fresh contempt applications could conveniently be listed with the compliance issue, subject to procedural separation where Mr Symes declined to give evidence on contempt. In that event, contempt had to be determined first. If proved, sentence was to be adjourned until after determination of compliance with the undertakings.

6. The test for apparent bias was whether a fair-minded and informed observer would conclude that there was a real possibility of bias. Apparent bias against a witness could be as serious as bias against a party. Although some of the judge’s remarks were improper and his questioning risked entering the arena, the whole history would not lead the informed observer to conclude that there was a real possibility of bias. The judge could therefore continue to hear the proceedings.

1. Court of Appeal (Civil Division): By [2003] EWCA Civ 1769, permission to appeal was refused on the ownership and recusal issues. Permission was granted on the cross-examination issue and that appeal was allowed.
2. High Court, Chancery Division: Peter Smith J found that the statue was wholly owned by Robin Symes Ltd, ordered attendance for cross-examination, and refused to recuse himself. No neutral citation for those rulings is stated in the judgment.