Thursfield v Thursfield

Where contempt consists of a continuing failure to disclose information required by court order, imprisonment will ordinarily be appropriate. A substantial fine may suffice where the contempt has been purged and relevant assets recovered. The court may impose a sentence combining punishment for past breaches with a coercive element designed to encourage prompt future compliance. Failure to attend a contempt hearing in breach of an order may aggravate the contempt. The seriousness of deliberate, wholesale and materially unsupported non-compliance may justify a sentence towards the upper end of the available range.

The claimant sought the committal of her former husband for contempt arising from breaches of orders requiring disclosure of assets and litigation funding. The orders required sworn information, supporting documents and details of the source and terms of funding. An earlier appeal concerning the orders had been dismissed after security for costs was not provided, and a stay had been refused.

The defendant provided late and materially incomplete affidavits, failed to attend the committal hearing despite an order requiring his attendance, and sought an adjournment and permission to give evidence by videolink. The central issues were whether the alleged disclosure failures were deliberate contempts and, if so, the appropriate sentence.

1. The application was allowed in part. Contempt was proved in relation to the failure to disclose the source and terms of funding under paragraph 5 of the earlier order and in relation to questions 2, 3 and 4 of its schedule. The alleged breaches concerning shares, questions 5 and 6, beneficial interests and the bank-account disclosure were left out of account or not treated as serious contumacious breaches.

2. The defendant’s disclosure was deliberately inadequate. It lacked the supporting documentary evidence expressly required by the order, gave obfuscatory explanations for substantial transactions, and contradicted his earlier evidence in the Michigan proceedings. Offers to enable the claimant to obtain information herself did not satisfy an order requiring the defendant to provide the information.

3. The defendant’s failure to attend the hearing, despite an express order requiring attendance and despite preparation for cross-examination, aggravated the contempt. The court declined an adjournment and rejected the proposal that a further opportunity for compliance or a suspended sentence would adequately reflect the gravity of the breaches.

4. Applying the guidance in JSC BTA Bank and Solodchenko & Ors (No 2) [2012] 1 WLR 350, a continuing failure to disclose relevant information may justify a long sentence, potentially up to two years, to encourage future co-operation. The court also applied the guidance in JSC BTA Bank v Ablyazov [2012] EWCA Civ 1411 that failure to attend in circumstances amounting to an aggravating feature may increase the seriousness of contempt.

5. A punitive sentence of twelve months was imposed, together with the remainder of the full two-year sentence as a coercive measure intended to encourage full and prompt compliance.

The judgment records that permission to appeal an earlier order was granted by Lord Justice Lewison on 15 February 2012. Lord Justice Etherton refused a stay and ordered security for costs on 24 May 2012. Security was not provided, and the appeal was dismissed automatically on 7 June 2012.