Khawaja v Popat & Anor

In civil contempt proceedings, the applicant must prove the alleged breach to the criminal standard. An accused may remain silent, but an adverse inference may be drawn where the applicant’s evidence establishes a case calling for an explanation. Silence cannot alone or mainly establish guilt.

A person who performs an act prohibited by an injunction commits a breach even without a direct intention to disobey. A procedural defect in a committal application may be waived where it has caused no injustice; exceptional circumstances are not required.

The appellant challenged an order committing him to prison for three months, suspended for 12 months. The High Court had found that he procured five transfers from the bank account of a company subject to a freezing order and failed to provide transaction information required by a consent order.

The appeal concerned the sufficiency of the evidence, the drawing of an adverse inference when the appellant declined cross-examination, the scope of the freezing order, the effect of an alleged absence of intention, waiver of personal service and the severity of the penalty.

1. Appeal dismissed. The respondents had proved the breaches to the criminal standard. Their evidence of unexplained transfers to the appellant and companies under his control established a case calling for an answer. The judge was entitled to reject the explanations in the appellant’s affidavits and to draw an adverse inference when he declined to submit that evidence to cross-examination. The inference did not make silence the sole proof of guilt. This approach was consistent with Comet Products UK Ltd v Hawkex Plastics Ltd [1971] 2 QB 67, Interplayer Ltd v Thorogood [2014] EWCA Civ 1511 and Murray v UK [1996] ECHR 18731/91.
2. The appellant’s personal assets were immaterial because the relevant breach was his procurement of the company’s breach. A belief that the transfers were permitted did not excuse them. A person restrained by an injunction commits a breach by performing the prohibited act; a direct intention to disobey is unnecessary. The court applied the principle stated in Stancomb v Trowbridge Urban and District Council [1910] 2 Ch.190 and subsequently endorsed by the House of Lords.
3. The freezing order applied to each defendant. The later consent order expressly discharged it against the appellant and another company while continuing it against the company from whose account the transfers were made. The appellant’s property undertakings neither amounted to payment of £300,000 into court nor constituted an alternative form of security agreed with the respondents’ representatives.
4. The absence of timely personal service of the positive information obligation could be waived under paragraph 16.2 of Practice Direction 81. The governing question was whether the defect had caused injustice, not whether exceptional circumstances existed. The appellant knew of the consent order, had authorised his solicitors to sign it and described his failure to comply as an oversight. The judge therefore exercised the waiver power properly.
5. The suspended custodial sentence fell within the judge’s broad discretion. It was open to him to impose custody to secure continuing compliance during the suspension period. Permission to add the proposed grounds was refused and the appeal was dismissed. McCombe LJ delivered the judgment; Kitchin LJ and Arden LJ agreed.

1. Court of Appeal (Civil Division): Permission to amend the grounds of appeal was refused and the appeal was dismissed. The findings of contempt and suspended committal order were upheld.
2. High Court, Chancery Division: Peter Smith J found the appellant in contempt for procuring five transfers in breach of a freezing order and failing to provide information required by a consent order. He imposed three months’ imprisonment, suspended for 12 months. No neutral citation is stated.