Hart v Hart

An undertaking to the court is a voluntary promise. A party wishing to cease to be bound must seek release or discharge from it, rather than appeal its terms.

A court retains power after a final financial remedy order has transferred an asset to make orders which are supportive or ancillary to its effective implementation. This can include requiring information, documents or keys needed to use the transferred asset. In contempt proceedings, imprisonment is reserved for contempt serious enough to require it. A sentence may identify both a punitive element for past breaches and a coercive element intended to secure compliance.

Following a final financial remedy order, the husband transferred his shares in a property company to the wife. The wife then sought company records and information needed to manage the business. Orders made in February and July 2016 required the husband to provide specified information, documents and keys.

HHJ Wildblood QC found breaches proved to the criminal standard and committed the husband to prison for concurrent terms totalling 14 months. The husband appealed the committal order and sentence. He also sought an extension of time and permission to challenge the undertaking and the two enforcement orders. The central issues were jurisdiction, compliance, and whether imprisonment and its length were justified.

1. Appeal allowed in part. The wife conceded, for pragmatic reasons, that the committal order founded on breaches of the undertaking should be set aside. That concession did not affect the separate committal findings or sentences for breaches of the February and July 2016 orders.

2. The court refused an extension of time and permission to appeal the undertaking and the two orders. The delay was serious, unexplained and highly prejudicial to the wife. In any event, an undertaking is a voluntary promise to the court. It cannot be appealed as though it were an imposed order; a party seeking to cease to be bound must apply for release or discharge: Birch v Birch [2017] 1 WLR 2959.

3. The court had jurisdiction to accept the undertaking and to make the enforcement orders. The transfer of the shares did not exhaust its powers. Rule 20.2 of the Family Procedure Rules 2010 and section 37 of the Senior Courts Act 1981 permitted orders for information and delivery up of documents which were supportive or ancillary to the wife’s substantive rights under the financial remedy order: Goyal v Goyal [2016] 4 WLR 140.

4. The orders did not improperly determine rights in company property or pierce the corporate veil. They required the husband to deliver documents which he had no right to retain to the wife, who was the company’s sole director and shareholder. It was a permissible case-management decision not to require the company to be joined. The February order was expressly confined to documents within the husband’s possession, custody or control, and the judge was entitled to find that the relevant documents were under his control.

5. The judge’s findings of breach disclosed no error. He had analysed the evidence meticulously and was sure that the husband had failed to provide the required information and documents.

6. The sentence was upheld. A contempt sentence may punish past disobedience and encourage later compliance: JSC BTA Bank v Solodchenko [2012] 1 WLR 350. Imprisonment was necessary given the deliberate, sustained and harmful contempt. The nine-month punitive and five-month coercive elements were not excessive, and the sentences for the February and July orders were distinct from, and uninfluenced by, the set-aside undertaking committal.

• Court of Appeal (Civil Division)—Allowed the appeal only to set aside the committal order based on breaches of the undertaking. It otherwise refused an extension of time and permission to appeal, and dismissed the appeal from the committal order and sentences for breaches of the February and July 2016 orders: [2018] EWCA Civ 1053.
• High Court of Justice, Birmingham District Registry sitting at Bristol (HHJ Wildblood QC)—On 15 March 2018 found the husband in contempt for breaches of an undertaking and orders made in February and July 2016, and imposed concurrent terms of imprisonment totalling 14 months.