Therium (UK) Holdings Ltd v Brooke & Ors

Contempt of court must be proved to the criminal standard. The essential ingredients must be established so that the court is sure, but individual items of circumstantial evidence may be assessed on the balance of probabilities and considered cumulatively. Deliberate intention to breach an order is not generally required, although a different approach may apply to assisting, causing or procuring another person’s breach. A person charged with contempt may decline to give evidence, but an adverse inference may be drawn where the case calls for an answer. An order requiring an act by a specified date ordinarily creates a continuing obligation until compliance.

Therium applied to commit Mr Brooke for contempt arising from alleged breaches of freezing, disclosure and payment orders made in proceedings concerning litigation proceeds held by Cable Plus BV. The allegations included failure to procure payment of the proceeds into court, dealing with or disposing of the proceeds, assisting Cable Plus’s breaches, and failing to disclose assets, bank information and the proceeds’ whereabouts.

The court considered the effect of Mr Brooke’s failure to attend for cross-examination, the evidence concerning the control of Cable Plus, and the applicable criminal standard of proof.

1. Applicable standard and ingredients. Each contempt had to be proved so that the court was sure of the essential ingredients. These included service of an order containing a penal notice, knowledge of its terms, conduct amounting to breach, and knowledge of the facts constituting the breach. The court applied the principles discussed in Masri v Consolidated Contractors International Co SAL [2011] EWHC 1024 (Comm).
2. Circumstantial evidence. It was unnecessary to prove every disputed evidential fact to the criminal standard. Findings on individual pieces of evidence could be made on the balance of probabilities and combined cumulatively, provided the essential ingredients of the contempt were established to the criminal standard. The court applied the approach explained in JSC BTA Bank v Ablyazov (No 8) [2013] 1 WLR 1331.
3. Intention. A deliberate or conscious intention to breach an order was not required. The court assumed, without deciding, that an intention to interfere with the administration of justice would be required for the alleged assistance, causing or procuring of Cable Plus’s breaches.
4. Failure to give evidence. Mr Brooke was entitled not to give oral evidence. However, because he deliberately failed to attend despite being available and medically fit, and because aspects of his evidence called for an answer, the court drew adverse inferences. This was consistent with Comet Products UK Ltd v Hawkex Plastics Ltd [1971] 2 QB 67 and Inplayer Ltd v Thorogood [2014] EWCA Civ 1511.
5. The obligation to procure transfer of the proceeds into court continued after the specified deadline. Mr Brooke had the ability to procure the transfer by unequivocal written instructions, but knowingly and deliberately failed to do so.
6. The court found proved the contempts concerning failure to procure payment, dealing with or disposing of the proceeds, assisting or procuring Cable Plus’s breaches, failures to disclose, and failure to provide bank and card statements or an authority for their release. The allegation that undisclosed personal assets funded legal and living expenses, and the allegation concerning expenditure without notice, were not proved.