Therium (UK) Holdings Ltd v Brooke & Ors

Sentencing for contempt must reflect both punishment for defiance of the court and, where appropriate, coercion to secure future compliance. Deliberate and substantial breaches of freezing and ancillary disclosure orders ordinarily merit immediate imprisonment. A continuing breach may justify a sentence at or near the two-year maximum where a lengthy term is needed to encourage cooperation. The court should consider whether imprisonment is necessary, the shortest necessary term, suspension, and the statutory maximum. Relevant seriousness factors include prejudice, pressure, deliberateness, culpability, responsibility for others’ conduct, appreciation of seriousness, cooperation, responsibility, apology, remorse and any reasonable excuse. A contemnor may purge the contempt under CPR 81.31(1), and the coercive element may then be remitted.

The claimant applied to commit the first defendant for contempt arising from breaches of freezing and ancillary disclosure orders concerning litigation proceeds. Findings of contempt had already been made, including transferring proceeds out of a restrained account, failing to procure payment into court and failing to disclose their location. The first defendant did not attend the sentencing hearing and had not purged his contempt. The court considered the proper sentence, including the effect of continuing non-compliance, alleged ill-health, age and a suggested possibility of settlement.

1. Sentence. A concurrent sentence of 21 months’ imprisonment was imposed for each finding of contempt.
2. The governing principles were those summarised in Asia Islamic Trade Finance Fund Ltd v Drum Risk Management Ltd [2015] EWHC 3748 (Comm). The penalty serves punitive and coercive purposes. The court must consider whether imprisonment is necessary, the shortest necessary term, suspension, and the two-year maximum.
3. A breach of a freezing order and its disclosure provisions attacks the administration of justice and usually merits immediate imprisonment of a substantial length. A continuing breach may justify a long sentence, potentially approaching two years, to encourage future cooperation. The sentence may include a punitive element for past breaches and a coercive element directed to future compliance.
4. The seriousness of contempt is assessed by factors including prejudice and its remediability, pressure, deliberateness, culpability, the role of others, appreciation of seriousness, cooperation, responsibility, apology, remorse and reasonable excuse. The breaches concerning the proceeds were deliberate, premeditated, sustained and seriously prejudicial. Public defiance and absence of remorse aggravated them.
5. Age and ill-health afforded limited mitigation because the defendant could reduce imprisonment by purging the contempt. A theoretical possibility of settlement did not justify suspension where there was no evidence of a real prospect of compliance. The defendant could apply to be discharged under CPR 81.31(1); the coercive element would be expected to be remitted if the contempt were purged.