Universal Business Team PTY Ltd & Ors v Moffitt (aka Laurie Moffitt)

A contempt application for breach of a court order requires proof to the criminal standard. The order must be unambiguous, the defendant must have notice of it, and the prohibited act or required omission must be deliberate, with knowledge of the facts making it a breach. An intention to flout the order is unnecessary, although intention is relevant to penalty. A search order must be obeyed according to its terms. The defendant cannot decide unilaterally how compliance should occur or withhold devices for later verification. Deliberate obstruction of the order’s execution, dissemination of the order, non-disclosure of access information and destruction of potentially relevant evidence may justify immediate imprisonment.

The claimants applied to commit the defendant, Mr Moffitt, to prison for thirteen alleged contempts arising from breaches of three orders concerning a search order. The Search Order, made by Birss J on 17 October 2017, required the preservation and delivery of physical and electronic address books and access information. A further order was made on 20 October 2017 and a third order by Rose J on 23 October 2017.

The alleged breaches included preventing execution of the search, failing to hand over listed items and access information, using electronic devices and social media, publicising the proceedings, factory-resetting devices, and failing to provide information. The central issues were procedural compliance, the legal test for contempt, whether each alleged breach was proved beyond reasonable doubt, and the appropriate penalty.

1. Procedural requirements. The committal application was procedurally regular. The orders carried the necessary penal notices and, save for the Second Order, had been personally served before the relevant compliance deadlines. The court retrospectively dispensed with the service difficulty concerning the Second Order, but held that the decisive question was whether the defendant had subjective notice of the order before the time for compliance.
2. Legal test. Applying Farnsworth v Lacy [2013] EWHC 3487 (Ch), the claimants had to prove the alleged contempt to the criminal standard. The order had to be unambiguous. The defendant had to have notice of it, perform a prohibited act or fail to perform a required act within the specified time, intend the act or omission, and know the facts making it a breach. The breach had to be deliberate rather than inadvertent, but an intention to flout the order was unnecessary.
3. Findings. All alleged contempts were proved beyond reasonable doubt except Contempt 11, which concerned email distribution and was not proved. Contempt 4 was proved only in part because the court was not sure that the address books had been held or transmitted through electronic devices rather than solely through cloud platforms. The other established contempts included deliberate obstruction of the search, failure to provide information, publication of the order and proceedings, unauthorised use of devices, and factory-resetting two devices.
4. Penalty. The court held that a search order must be obeyed according to its terms until varied. Its efficacy depends upon strict compliance, particularly because such orders are ordinarily granted and executed without notice. Immediate imprisonment was the only appropriate outcome. Sentences ranged from one month to fourteen months and ran concurrently, with the most serious sentence imposed for the deliberate factory-resetting of devices and the destruction or concealment of potentially relevant evidence. The court took the defendant’s late admissions and apologies into account.