Symes v Jonathan Guy Anthony Phillips & Ors

An appeal against committal for contempt may succeed in part even where serious breaches are admitted. A contemnor is entitled to a fair hearing and to have mitigation assessed by the judge. A judge who has conducted related, without-notice disclosure proceedings likely to reveal evidence relevant to the contempt should not ordinarily hear the committal. If a voluntary interview is arranged to assess co-operation, the judge must evaluate the transcript and the contemnor’s conduct. A comprehensive committal application should ordinarily resolve the alleged contempts and any suspended sentence, rather than use successive hearings to circumvent the two-year maximum under the Contempt of the Court Act 1981. Serious contempt may justify a substantial sentence, but procedural unfairness and admissions may require a reduction.

The claimants’ proceedings arose from a disputed former partnership and involved orders regulating assets and requiring disclosure. The High Court, Chancery Division, committed Mr Symes to 24 months’ imprisonment for breach of an undertaking and for selling a statue in breach of an interlocutory regime. The sentences were consecutive, and a previous suspended sentence was left in operation.

Mr Symes appealed, alleging procedural unfairness arising from refusal of an adjournment, lack of representation, the judge’s prior conduct of related disclosure proceedings, the treatment of a voluntary interview, and the handling of outstanding contempts and the suspended sentence. The central issues were whether the committal hearing was fair, whether the sentencing procedure complied with the statutory maximum, and what remedy was appropriate.

Pill LJ gave the leading judgment, and Longmore LJ agreed with the material conclusions. The appeal was allowed in part. The total sentence was reduced from 24 months to 12 months, comprising consecutive terms of five months and seven months. The suspended sentence was discharged, and the unresolved alleged contempts were not to be pursued on a later application.

1. Fair hearing and adjournment. The judge was entitled to proceed despite the refusal of legal aid and the appellant’s health complaints. The relevant background included earlier adjournments, the absence of medical evidence establishing pneumonia at the hearing, intact comprehension, and the availability of pro bono assistance. The Court of Appeal therefore did not interfere with that decision.
2. Prior related proceedings. The same judge should not have heard both the without-notice disclosure proceedings against the appellant’s former solicitor and the committal proceedings. The former proceedings involved prolonged enquiries into assets and dealings which were likely to throw light on the appellant’s conduct. The unfairness did not depend on proving the actual effect of that material on the judge.
3. Voluntary interview. Having arranged an interview to assess co-operation and indicated that co-operation could mitigate sentence, the judge should have considered the transcript and evaluated the appellant’s conduct. The utility of information to the claimants was not the only relevant consideration, and the evaluation could not be left entirely to the party seeking committal.
4. Sentencing procedure. Section 14 of the Contempt of the Court Act 1981 prevented a contemnor being left subject to more than two years’ imprisonment on any occasion. Applying Villiers v Villiers [1994] 1 WLR 493 and Re W(B)(an Infant) [1969] 2 Ch. 50, it was ordinarily wrong in a comprehensive application to leave alleged contempts unresolved and retain a suspended sentence so as to obtain a greater cumulative sentence later. Exceptional circumstances were not excluded, but they were absent here.
5. Privilege. Pill LJ expressed reservations about the broad test adopted below from Aoot Kalmneft v Denton Wilde Sapte [2002] 1 Lloyd’s L.R. 417. The principles in O’Rourke v Darbishire [1920] AC 581 required more than an allegation of fraud before privilege could be displaced. The detailed propriety of the disclosure order was not determined because it had limited relevance to the appeal.
6. Sentence. The conduct was serious and warranted substantial punishment. However, the procedural unfairness deprived the appellant of a proper assessment of mitigation, and his admissions warranted some discount from the maximum sentence. Applying the remedial approach in Attorney General’s Reference (No 2 of 2001) [2004] 2 AC 72, the Court reduced the sentence as stated above.

1. Court of Appeal (Civil Division): In [2005] EWCA Civ 533, the appeal was allowed in part. The sentence was reduced from 24 months to 12 months, the suspended sentence was discharged, and the unresolved alleged contempts were not to be pursued.
2. High Court, Chancery Division: Peter Smith J’s order of 21 January 2005 committed Mr Symes to 24 months’ imprisonment, imposed consecutively for two contempts, and left a previous suspended sentence in operation.