Cherwayko v Cherwayko (No 2): contempt, contents of application notice

In a committal application, the notice must identify each alleged contempt with sufficient particularity to enable the respondent to understand and meet the charge. The notice must be distinguished from the evidence supporting it, but the distinction is not applied rigidly. Under the Family Procedure Rules 2010, a procedural defect may be waived where the interests of justice require it and the respondent has suffered no injustice or prejudice. A carefully drafted, itemised document served with the notice may justify waiver, depending on the context. An undertaking to lodge property as security is continuing in nature: it requires the property to remain available as security until the specified obligation is fulfilled. Knowingly and deliberately defeating that security constitutes a wilful breach.

The applicant sought committal of the respondent for alleged breaches of a financial remedy order, an undertaking to provide shares as security, an order requiring attendance and production of financial documents, and a freezing order requiring disclosure of worldwide assets. The application notice identified the relevant orders and paragraph numbers but did not fully particularise the alleged breaches. The supporting affidavit and draft order supplied further detail.

The respondent argued that the notice was invalid or defective under the Family Procedure Rules 2010 and that the defects could not be waived. He also denied breach, or alleged that any breach was not wilful. The court had to determine whether the notice defects should be waived, whether the undertaking and orders had been breached, and whether the breaches were wilful.

1. Notice and waiver. The application was not dismissed. Rule 37.10(3)(a) FPR 2010 requires the notice to set out the grounds and identify separately and numerically each alleged act of contempt. The alleged contemnor must be told, with sufficient particularity, what is alleged, judged in the context of the application and by asking whether a reasonable person in that position would be in doubt about the substance of the charges.
2. The notice must be distinguished from the supporting evidence. The undertaking breach ought to have been particularised in the notice, and the absence of dates was a technical defect. However, the defects could be waived under PD37 paragraph 13.2 where the interests of justice required it and no injustice or prejudice had been caused. The affidavit and draft order were served with the notice, clearly set out the allegations, and gave the respondent ample opportunity to answer them. It was therefore just to waive all defects. The power is discretionary and will not be exercised routinely.
3. Undertaking. The undertaking to lodge share certificates so that they would stand as security and remain in escrow pending payment had to be read as a whole and in context. Lodgement was a continuing act. It required the certificates to remain available as security, not merely their initial delivery. Obtaining replacement certificates and realising the underlying shares deprived the lodged certificates of their security and breached the undertaking.
4. Wilfulness and orders. Wilful breach means knowingly and deliberately disobeying the obligation; it does not require malign intent. The respondent knowingly obtained replacement certificates and sold the shares. He also deliberately failed to attend the ordered hearing, produce the specified documents, and disclose the worldwide assets required by the freezing order. The suggested financial, legal and business difficulties did not establish duress or excuse the failures.
5. The court found, beyond reasonable doubt, wilful breaches of the undertaking and the orders. Penalty and costs were reserved for written submissions.