Hicken v Ellison

A committal application for breach of disclosure and freezing orders may be heard in the respondent’s absence where the respondent had proper notice, sufficient opportunity to participate, and an adjournment is unlikely to secure attendance or representation. The court must assess the alleged breaches separately and prove contempt to the criminal standard. Orders requiring disclosure of means are construed in their procedural and substantive context. They require intelligible, sufficiently detailed information, rather than an unexplained mass of documents. A freezing order requiring disclosure of assets may extend to assets vested in the respondent as trustee, but does not necessarily require disclosure of assets in which the respondent has no established beneficial or legal interest. Where serious contempt is proved in the respondent’s absence, sentencing may properly be adjourned to allow compliance and attendance.

Mr Richard Hicken, trustee in bankruptcy of Dr Clive Malcolm Ellison, applied for Dr Ellison’s committal for breaches of orders requiring disclosure of his financial means, assets, income and expenditure, and for breach of a freezing order. The orders arose in the context of an income payments application following Dr Ellison’s bankruptcy.

Dr Ellison had provided several witness statements but failed to give adequate explanations of financial transactions, spread-betting receipts, bank accounts, property interests, trust-related payments and expenditure. He did not attend the committal hearing and was not represented. The central issues were whether the court should proceed in his absence, whether the alleged breaches were proved, and whether sentencing should take place immediately.

1. Proceeding in absence. The court applied the checklist in Sanchez v Oboz [2015] EWHC 235 (Fam), reflecting the factors identified in R v Hayward [2001] QB 862. Dr Ellison had notice, ample time to prepare, and had filed evidence. His stated depression was unsupported and he had not sought an adjournment. An adjournment was unlikely to secure attendance or representation, and proceeding caused no undue forensic prejudice.
2. Construction and breach of disclosure orders. The Lawson and Derrett Orders required a detailed and intelligible account of means, specifying all sources of income and expenditure, supported by necessary documents and tax returns. In context, the obligation extended over a reasonable historical period, including six years for income and expenditure, and required the whole history of dealings with IG Index unless a reasonable limitation had been agreed. Supplying unexplained or incomplete statements did not constitute compliance.
3. Freezing-order disclosure. The Carr Order required disclosure of assets worldwide exceeding £500, including assets held in the respondent’s own name or jointly. It extended to assets vested in him as trustee, although the evidence did not establish to the criminal standard that he beneficially owned the Trust’s assets. Undisclosed South African property and bank accounts were proved breaches. The failure to swear and serve the required affidavit was a separate and serious breach.
4. Findings and disposition. Breaches of the Derrett, Carr and Mann Orders were established to the criminal standard. The court did not proceed immediately to sentence. Following JSC BTA Bank v Solodchenko [2011] EWHC 1613 (Ch), the application was adjourned before sentence. The judgment was to be served on Dr Ellison, who was directed to attend the adjourned sentencing hearing and was advised that subsequent compliance would be taken into account.

Not an appeal. The judgment determined a committal application arising from earlier bankruptcy and disclosure orders.