Todaysure Matthews Ltd & Anor v Mattar

A company’s undertaking to the court is enforceable as an order. Committal requires proof to the criminal standard that the respondent knew the order’s terms, breached it, and knew the facts constituting the breach. A director or officer may be committed for the company’s contempt where he knew of the order and was responsible for the breach.

Service may be dispensed with retrospectively where the respondent had actual notice. Sentencing must mark the court’s disapproval and, where possible, secure future compliance. Deliberate, concealed and financially motivated disobedience, particularly involving false evidence and no apology, may justify immediate imprisonment.

The claimants sought committal orders against Waleed Mattar for breaches of undertakings given by Marketing Ways Services Ltd in proceedings concerning a performance guarantee securing a subcontract for the manufacture and supply of incinerators.

The defendant received payment under the guarantee but failed to pay the money to its solicitors for payment into court. It also failed to comply with a later order requiring payment to replacement solicitors. Mr Mattar did not attend the hearing and sought an adjournment, asserting that he had not received notice of the application. The court first refused the adjournment and then considered whether the company and Mr Mattar were in contempt, whether service could be dispensed with, and the appropriate sentence.

1. Contempt established. Under CPR 81.4, an undertaking given by a party may be enforced by committal as if it were a judgment or order. Applying the requirements summarised in Masri v Consolidated Contractors (International) Company S.A.R.L. [2011] EWHC 1024 (Comm), the court was sure to the criminal standard that the defendant knew the undertaking, received the guarantee proceeds on 25 February 2015, and failed to pay them forthwith to King & Wood Mallesons.
2. There was a further breach of the order made by Cooke J on 17 December 2015 because the money was not paid to Quigg Golden. The evidence from Barclays, together with Mr Mattar’s own affidavit evidence, established receipt and non-payment.
3. Applying Dar Al Arkan Real Estate Development Co v Al Refai [2014] EWCA Civ 715, Mr Mattar was personally liable to committal because he knew of the order and was responsible for the company’s dealings with the cheque. His position as founder, chief executive and president, his conduct of the litigation, and his personal involvement established responsibility.
4. The formal requirements were satisfied. A penal notice was unnecessary for enforcement of an undertaking. Although formal personal service of the undertaking on Mr Mattar had not been shown, the court retrospectively dispensed with service under CPR 81.8 because he plainly had notice of the order and its terms.
5. In sentencing, the court considered the factors identified in Crystalmews Ltd v Metterick [2006] EWHC 3087 (Ch). The contempt was deliberate, concealed, financially motivated, involved false evidence, and was accompanied by neither explanation nor apology. In accordance with Gulf Azoz Shipping Ltd v Idisi [2001] EWCA Civ 21, only immediate custody reflected the gravity of the conduct. Mr Mattar was committed to Pentonville prison for 18 months, with permission to apply to purge the contempt by returning the money.