Cherwayko v Cherwayko

Where a party knowingly breaches a financial disclosure order, the court may impose committal proceedings even if substantial payments have since been made. Service by an alternative method or at an alternative place is permissible under rule 37.8(2)(b) of the Family Procedure Rules. A committal order has both coercive and punitive elements, which must be carefully balanced. Immediate imprisonment may be disproportionate where a suspended warrant can mark the seriousness of the contempt while securing compliance. Suspension may properly be conditional on payment towards the judgment debt and full compliance with the disclosure order.

The applicant wife sought to commit the respondent husband to prison for contempt of an order requiring him to provide a statement, supported by documentary evidence, explaining his non-compliance with a financial order, proposing compliance and disclosing his financial circumstances. The order had been served on the husband’s solicitors by email and first-class post. The husband did not provide the required disclosure and did not attend the committal hearing, although payments towards the outstanding financial award had been made and further payment was anticipated.

The central issues were whether the service arrangements created a technical defence, whether the husband was in contempt beyond reasonable doubt, and what committal order was proportionate.

1. Contempt established. The husband was fully aware of the disclosure obligations. Service on his solicitors in accordance with the order was valid. The wife’s temporary decision to defer enforcement did not waive the obligation. The breach was deliberate and proved beyond reasonable doubt.
2. Service. The court had power under rule 37.8(2)(b) of the Family Procedure Rules to order service of the judgment or order by an alternative method or at an alternative place. The delay in sealing and serving the committal papers did not provide a technical defence, particularly since the husband had received them through his solicitors and had time to prepare.
3. Payments did not purge the contempt. The husband’s subsequent payments, and the prospect of further payment, did not excuse his continuing and defiant failure to provide the ordered disclosure. That disclosure remained relevant to enforcement of the outstanding award and the next instalment.
4. Proportionality and form of order. Committal involves both coercion and punishment, which must be balanced. Although the court sentenced the husband to six months’ imprisonment to mark its displeasure, immediate imprisonment would have been disproportionate. The warrant was therefore stayed on conditions that he pay £500,000 by 4 pm on 17 December 2014 and fully comply with the disclosure order by that date.
5. The warrant could be executed if an affidavit filed on 18 December stated that the conditions of suspension had not been met.