Microsoft Corporation v Mbaezue (aka Barry Ejiofor Omesuh)

Committal for contempt requires proof beyond reasonable doubt that the defendant breached an unambiguous order. The breach must be deliberate, although an intention to breach is unnecessary. Conduct calculated to frustrate the order is sufficient.

A freezing order requiring disclosure of assets may require disclosure of bank accounts regardless of whether they have a positive, zero or negative balance. It may also cover assets controlled indirectly through nominees or companies, even where ultimate beneficial ownership remains unresolved.

The claimant sought to commit the defendant for breaches of freezing and search orders made on 5 March 2008. The allegations concerned non-disclosure of offshore companies, bank accounts and property; countermanding disclosure authorities; failure to disclose a passport and an email account; deletion of emails; and dissipation of assets.

The defendant denied deliberate breaches and relied on ambiguity, lack of value, stress, alleged lack of control and the risk of self-incrimination arising from a separate criminal investigation. The central issues were whether the orders were sufficiently clear, whether the alleged breaches were proved to the criminal standard, and whether the relevant assets fell within the orders.

1. The claimant established beyond reasonable doubt that the defendant deliberately breached the freezing and search orders by concealing the OCRA companies and accounts, an Indian ITAC account and the Grange Road property; countermanding an Annex A letter; failing to disclose a passport and an email account and password; deleting emails; and dissipating assets of Sphere Global and ITIL.

2. Following Stancomb v Trowbridge Urban DC [1910] 2 Ch 190 and Director General of Fair Trading v Pioneer Concrete (UK) Limited [1995] 1 AC 456, contempt requires proof of breach of an unambiguous order to the criminal standard. A breach includes conduct calculated to frustrate the order. The act must be deliberate, but an intention to commit the breach is unnecessary.

3. The freezing order plainly required disclosure of every bank account within its definition, including accounts with zero or negative balances. The reference to assets exceeding £1,000 did not create ambiguity capable of excusing non-disclosure.

4. The order extended to assets which the defendant could deal with directly or indirectly as if they were his own, including assets held by companies whose nominees habitually obeyed his instructions. The court therefore did not need to determine ultimate beneficial ownership. Allegations that the assets might represent criminal proceeds were irrelevant to whether the freezing order had been breached.

5. The court considered the principles in Wisniewski v Central Manchester Health Authority [1998] EWCA Civ 596 concerning adverse inferences from silence. Although the claimant had established a case requiring an answer, no adverse inference was drawn because the defendant had a credible explanation based on the separate criminal investigation. The documentary evidence independently proved the dissipation breaches.

6. No contempt was found for failure to swear the asset affidavit. The defendant had been in custody during the original compliance period, and the later order did not clearly extend time or directly require swearing on the specified date.

First-instance decision. The judgment itself describes earlier procedural hearings before Mann J, Evans-Lombe J, Sir Donald Rattee and Arnold J concerning the freezing and search orders and the committal application.