Prosser v Prosser

A consent order is subject to the ordinary requirements governing enforcement by committal. The court nevertheless has a broad power to dispense with service, including service of a penal notice, where it is just to do so and the evidence clearly establishes that the respondent understood the order and the consequences of breach. An order requiring instructions to be given so that sale proceeds are placed in security is not an order for payment of a debt within section 4 of the Debtors Act 1869. Contempt must be proved to the criminal standard. Matters increasing culpability or aggravating the contempt must also be proved to that standard, while mitigation may be proved to the civil standard. Sentencing should mark the court’s disapproval and, where practicable, secure future compliance.

The claimant, an assignee of claims belonging to a company formerly operated by the parties, obtained a consent freezing order on 10 March 2010. It required the defendant, if his property was sold, to instruct the conveyancing solicitors to remit the sale proceeds to a nominated account held by the claimant’s solicitors.

The property was sold for £475,000. The defendant instead received the net proceeds and transferred £450,000 to three accounts in Hong Kong. The order had not been personally served before the breach and contained no penal notice. The claimant applied to commit him for contempt. The issues included service, the court’s power to dispense with service, section 4 of the Debtors Act 1869, proof of contempt, culpability, ability to recover the money, and sentence.

1. Service and dispensation. A consent order is not equivalent to an undertaking and must ordinarily comply with Order 45 before committal can be enforced. However, Order 45 rule 7(7) confers a general power to dispense with service, applicable to mandatory as well as prohibitory orders. The discretion must be exercised cautiously and in accordance with justice. It was just to dispense with personal service and the penal notice because the defendant had received a detailed explanation of the order, understood that the proceeds had to be paid into the nominated account, and appreciated that breach would have serious consequences (paras [86]–[109]).
2. Debtors Act. Section 4 of the Debtors Act 1869 did not apply. The order did not require payment of an ordinary debt to the claimant. It required the defendant to instruct his solicitors to place sale proceeds in an account providing security for the claim. The reasoning in Bates v Bates was followed; nothing said obiter in Graham v Graham undermined it (paras [93]–[103]).
3. Proof and contempt. The claimant had to prove the contempt and facts relied upon to increase culpability beyond reasonable doubt. The defendant deliberately failed to give the required instructions, knowing that he was breaching the order and intending to place the money beyond his brother’s reach. Contempt was therefore proved beyond reasonable doubt. It was not proved to that standard that the defendant’s account was wholly fabricated or that he remained able to recover the money (paras [73]–[77], [110]–[119]).
4. Sentence. The purposes of contempt sentencing are to mark disapproval and, where possible, secure compliance. Relevant considerations include prejudice, pressure, deliberateness, culpability, the involvement of others, appreciation of seriousness and co-operation. Since the court could not find that the defendant could purge the contempt, the sentence was principally punitive. His age and infirmity justified substantial reduction, but the seriousness of the deliberate dissipation required immediate imprisonment for five months (paras [120]–[137]).

First-instance committal decision. No earlier appellate decision is stated in the judgment.