Hart v Hart

For contempt arising from breach of a court order, the court must first construe the order and identify precisely what it required. It must then decide, on the criminal standard of proof, whether the respondent failed to comply and whether compliance was within that respondent’s power. The applicant bears the burden throughout. A finding of contempt against one respondent does not establish contempt against another, even where the allegations and evidence overlap. A director’s formal control and demonstrated ability to provide corporate information may establish power to comply. Bare speculation about undue influence, domination or another person’s control is insufficient without evidence.

The applicant sought committal orders against Susan Byrne and Halesowen Estates Ltd for alleged breaches of information and document-production orders made on 24 February and 29 July 2016. The orders had been made by consent. The alleged failures concerned information and records relating to Drakestown Properties Ltd and Halesowen Estates Ltd.

The court had previously found John Hart, the first respondent, in contempt for related failures. Mrs Byrne and Halesowen did not give evidence and argued that they might have been unable to comply because of Mr Hart’s control or influence. The central issue was whether the applicant had proved beyond reasonable doubt both non-compliance and the respondents’ power to comply.

1. Contempt principles. The court must construe the express language of the order and identify precisely what it required. It must then determine as questions of fact whether the respondent complied and, if not, whether compliance was within the respondent’s power. The applicant bears the burden throughout. The criminal standard applies, so the court must be sure both that the order was breached and that compliance was possible.
2. Separate assessment of respondents. The earlier finding that Mr Hart had breached related orders did not establish the allegations against Mrs Byrne or Halesowen. Their position had to be considered separately. The absence of evidence from them did not reverse the burden of proof, but it left the applicant’s evidence unanswered.
3. Power to comply. Mrs Byrne had consented to the orders, knew what they required, and had accepted that she and Halesowen could provide the information. She was the relevant director and had asserted control over, and knowledge of, the companies and their records. There was no evidence that Mr Hart’s influence or control prevented her from complying. The court rejected speculation that she or the company had been dominated or obstructed.
4. Corporate liability. Mrs Byrne had legal control of Halesowen and the power and right to provide information concerning both companies. Her decision not to comply placed Halesowen in the same position for the purposes of proving contempt. No logical basis existed for differentiating between them.
5. The court found both Mrs Byrne and Halesowen in contempt of the 24 February and 29 July 2016 orders, to the same extent as the breaches previously established against Mr Hart.

This was a first-instance determination. The judgment records that Mr Hart had previously been found in contempt, and that the Court of Appeal allowed by consent the appeal concerning enforcement of the undertaking while dismissing the remainder, including the challenge to sentence. A subsequent appeal to the Supreme Court was unsuccessful.