Corbiere Ltd & Ors v Xu

Sentencing for contempt must serve the distinct purposes of punishment for disobedience and securing future compliance. A prior criminal sentence for substantially the same failure must be taken into account, and the contemnor must not be punished twice for the same conduct. It does not necessarily remove the civil court’s punitive or coercive jurisdiction.

Where a continuing failure to provide information is capable of being remedied, imprisonment may remain necessary. The sentence must be no longer than commensurate with the gravity of the contempt and the need for deterrence. The court should consider suspension and may identify a punitive element and a remittable coercive element. Successive sanctions require a proportionate, stage-by-stage assessment, including the cumulative time already served.

The claimants obtained an order dated 29 January 2018 requiring Mr Xu to disclose what he had done with copies of confidential information taken in August 2014. The court previously found him guilty of seven counts of contempt because he denied taking copies and consequently failed to comply with the order.

Mr Xu had previously received an 18-month prison sentence for breach of a Serious Crime Prevention Order requiring substantially similar disclosure. The issue was the appropriate sanction for the later contempt, including whether the earlier sentence exhausted the punitive or coercive purpose of imprisonment and, if not, what sentence was proportionate.

1. The court imposed a concurrent sentence of 13 months’ imprisonment on each of the seven counts. One month represented punishment and 12 months were capable of remission if Mr Xu purged his contempt.
2. Under [2011] EWCA Civ 1241, contempt proceedings uphold the court’s authority, punish disobedience, deter others and encourage compliance. Substantial breach of an order requiring disclosure is serious and ordinarily warrants imprisonment unless the circumstances justify another sanction.
3. The punitive and criminal purposes of contempt and criminal proceedings differ, as explained in [2002] 2 FLR 400. Nevertheless, the court had to avoid double punishment. Applying [2010] 1 WLR 1262, the prior criminal sentence was relevant and substantially satisfied punishment for the same failure to disclose, although breach of the court’s own order retained a small additional punitive element.
4. Applying [2011] EWCA Civ 1196 and [1983] 1 WLR 749, a fresh mandatory order and further imprisonment may be permissible where a positive obligation to disclose continues. The court must adopt a proportionate, stage-by-stage approach and ask whether any coercive purpose remains. Here it had not been exhausted because this was the first civil committal and compliance remained within Mr Xu’s control.
5. The factors identified in the guidelines appended to [2015] EWHC 821 (Comm) supported imprisonment: the failure was wholesale, deliberate, prolonged and aggravated by false disclosure, with no admission, remorse or belated compliance. Although the likely loss was difficult to quantify, that uncertainty increased the importance of disclosure to prevent misuse.
6. A further sentence was necessary and suspension would not provide sufficient coercive effect. The prior sentence, the passage of time and the uncertain prospect of future harm justified reducing the sentence from the upper range. Comparative decisions, including [2013] 1 WLR 1331 and [2005] EWHC 534, provided only limited assistance.