Seatriever International Holdings Ltd v Daly

For committal for breach of a mandatory order, the applicant must establish the order’s precise requirements, the defendant’s failure to comply, and the defendant’s ability to comply. The criminal standard applies throughout.

A breach must be deliberate, meaning intentional conduct with knowledge of the facts constituting the breach. It is unnecessary to prove that the defendant understood that the conduct contravened the order. For false statements of truth, the applicant must prove falsity, knowledge of falsity or absence of an honest belief, and an intention or awareness that the statement was likely to interfere with the administration of justice. Recklessness suffices for the mental element concerning truth, but carelessness does not.

The claimant applied to commit the defendant, Andrew Daly, to prison for breaches of preservation, disclosure and delivery-up orders and undertakings, including concealment of an email account and associated Dropbox, failure to deliver up a family iPad and hard-copy documents, and late compliance with other requirements.

A second application concerned false statements of truth in the defendant’s Defence and witness statements. The defendant admitted the principal conduct and apologised, but disputed aspects of the alleged breaches and relied on personal circumstances, limited prejudice and subsequent disclosure. The central issues were whether the relevant orders and undertakings had been breached, whether the conduct was deliberate, whether the statements of truth satisfied the requirements for contempt, and the appropriate sentence.

1. Procedural requirements. The court was satisfied that the committal applications complied with the procedural requirements. Personal service of the second order was dispensed with under Civil Procedure Rules 1998, rule 81.8, because the defendant had notice of the order and its undertakings through represented negotiations and correspondence. The third order had been sufficiently served on his legal representatives while he was present in court under rules 81.7 and 81.8.
2. Breach of mandatory orders. Applying Re L-W (Enforcement and Committal: Contact) [2010] EWCA Civ 1253, the court had to identify what the order required, determine whether it had been done and whether compliance was within the defendant’s power, and apply the criminal standard. The claimant established that the defendant deliberately concealed and deleted the JBB email account, failed to disclose the associated Dropbox, failed to deliver up the family iPad and hard-copy documents, and failed to comply with other delivery and notification requirements. The family iPad fell within the order because it had stored a schedule A document. The defendant’s narrow construction of the reference to Frank Demeyere in schedule A was rejected.
3. Deliberate breach. The court accepted the principles in Khawaja v Popat [2016] EWCA Civ 362, Stancomb v Trowbridge UDC [1910] 2 Ch 190 and Spectra Vest Inc v Aperknit Ltd [1988] FSR 161. The defendant’s conduct was deliberate because he knew of the orders and intentionally acted in response to them. A mistaken belief that conduct was permitted did not excuse the breach.
4. False statements. The court found established all contempts arising from the statements of truth. The statements were false, the defendant knew they were false or lacked an honest belief in their truth, and he intended, or knew it was likely, that they would interfere with the administration of justice.
5. Sentence. Following Universal Business Team Proprietary Limited v Moffitt [2017] EWHC 3251 (Ch), the court considered prejudice, culpability, pressure, admissions, remorse, previous character and the effect on the defendant’s family. The concealment caused substantial prejudice and was deliberate, calculated and sustained. The defendant was committed to prison for 182 days. The proceedings against him were stayed until 28 days after his release.