Xu v Corbiere Ltd & Ors

In sentencing for civil contempt, punitive and coercive purposes must be kept distinct. A coercive prison term remains available where compliance is within the contemnor’s power and imprisonment can still serve a proportionate incentive. Previous criminal punishment, confiscation and civil remedies are not automatically prior coercive sanctions for the disclosure obligation. The court must assess whether coercion remains useful, considering the potential value of information and the difficulty of quantifying harm; no precise financial figure is required. A pending deportation, or the Secretary of State’s view of the public interest, does not prevent the committal court imposing the shortest sentence necessary to secure compliance.

The appellant, a former quantitative analyst, had accessed and copied confidential investment strategies belonging to the respondents. In related civil proceedings, the High Court ordered him to disclose what copies he had taken and what had become of them. Zacaroli J found seven contempts, proved beyond reasonable doubt, and imposed concurrent immediate sentences of 13 months’ imprisonment, comprising one month punitive and 12 months coercive.

The appeal challenged only the coercive element. The appellant argued that coercion had become purposeless, that there was insufficient evidence of harm, and that the judge had failed to account for the public interest in his deportation. The central issue was whether a proportionate coercive sentence remained justified.

Appeal dismissed unanimously.

1. The punitive and coercive purposes of imprisonment for contempt must be distinguished. The criminal sentence substantially exhausted the punitive element, but this was the first occasion on which the coercive effect of committal for contempt had arisen. The appellant’s criminal conviction, confiscation order, civil judgment and serious crime prevention order could not be treated collectively as earlier coercive measures for the disclosure obligation. The court should not jumble proceedings serving different purposes.
2. The guidance in Wilkinson v Anjum and another [2011] EWCA Civ 1196, [2012] 1 WLR 1036 applied. A point may be reached when further imprisonment is no longer necessary or proportionate, but that point had not been reached. The appellant could end the coercive element by complying with the order, and the first coercive committal was significant.
3. No specific figure for damage was required. Difficulty in quantifying loss may itself justify disclosure designed to prevent misuse. The information had substantial potential value when taken, and the appellant’s continued refusal to disclose its whereabouts supported the inference that it retained value to him. The value to the contemnor could be more important than a precisely quantified loss to the claimant.
4. The judge was entitled to determine the appropriate sanction within the contempt proceedings. The Secretary of State’s earlier view concerning deportation did not prevent imprisonment, particularly where the Secretary of State had not participated in the committal proceedings to contend otherwise. Deportation could follow completion of the sentence.
5. The sentence was proportionate. The order of 13 months, including a 12-month coercive element, was the shortest sentence the judge considered necessary and was properly imposed for immediate imprisonment.

• Court of Appeal (Civil Division): The appeal against the committal sentence was dismissed. [2018] EWCA Civ 1899
• High Court of Justice, Chancery Division: Zacaroli J found seven contempts and imposed concurrent immediate sentences of 13 months’ imprisonment. [2018] EWHC 1650 (Ch)