Hart v Hart

In contempt proceedings, 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 the respondent’s power. The burden remains on the applicant throughout. A broad undertaking may be enforceable where its language is plain and its purpose requires continuing practical steps. An undertaking to enable the effective management of a company may require delivery of its accounting, banking, contractual, tax and operational records. A finding of contempt must state clearly both the breach and the respondent’s ability to comply.

The applicant sought committal orders against her former husband and related respondents for alleged breaches of a financial remedies order, a subsequent undertaking and later enforcement orders. The undertaking required the first respondent to take all necessary steps, including providing information and documentation, so that the applicant could manage a transferred company effectively.

The proceedings concerned only the allegations against the former husband. The issues were whether the undertaking and enforcement orders were sufficiently clear, whether the required information had been provided, whether it was within his power to provide it, and whether the breaches had been proved to the criminal standard.

1. Applicable principles. The court adopted the agreed approach that construction of the order is a question of law. Whether the respondent complied, and whether compliance was within his power, are questions of fact. The burden remained on the applicant throughout. Before finding contempt, the court had to be sure both that the respondent had failed to do what was required and that he had the ability to do it. Any judgment finding contempt had to identify plainly and clearly the breach and the ability to comply.
2. Construction of the undertaking. The undertaking to take all steps necessary to enable the applicant to conduct the efficient and effective management of the company took effect immediately. Its breadth was deliberate, given the responsibilities transferred to the applicant. The obligation included providing the company’s records and the information needed to maintain proper accounts and operate the business.
3. Findings. The respondent failed to provide essential records, including complete bank statements, historic leases and licences, accounting records, ledgers, invoices, VAT records and information explaining transactions between companies. The court rejected the submission that the undertaking was too vague or lacked a sufficient time reference. The respondent had controlled the corporate structure and had the power to obtain and provide the information.
4. The court was sure that the respondent had acted in contemptuous disregard of the undertaking and the orders of 24 February and 29 July 2016. His contempt was persistent, deliberate and only partly remedied. His subsequent non-compliance and untruthful evidence aggravated its seriousness. The finding concerned Mr Hart only; issues concerning the other respondents were adjourned. Sentence and consequential submissions were adjourned to a later hearing.

The judgment records that the Court of Appeal dismissed the applicant’s appeal from the substantive financial remedies decision on 31 August 2017. No citation for that decision is stated. The present judgment determined the committal allegations at first instance and adjourned sentence.