Sellers v Podstreshnyy

Sentencing for contempt arising from deliberate breach of a freezing order must protect the administration of justice while imposing the shortest necessary term. Such breaches usually require immediate imprisonment. The court must nevertheless give full weight to mitigation, including admissions, cooperation and the effect of imprisonment on children or vulnerable adults.

An admission attracts greater credit when made early. A maximum reduction of one third is appropriate only where the contempt is admitted when proceedings commence, with the reduction ordinarily falling to about 10% when admission occurs at trial. Serious adverse effects on a contemnor’s child may reduce the term or, where sufficiently powerful, justify suspension. Suspension remains exceptional where the public interest requires immediate custody.

The appellant was committed to prison for three admitted breaches of freezing orders obtained by the respondent. The breaches comprised prolonged failures to disclose assets and bank accounts and a failure to identify the sources of money used for living expenses. Falk J imposed concurrent terms of nine months for the two disclosure breaches and six months for the living-expenses breach: [2019] EWHC 469 (Ch).

The appellant contended that insufficient credit had been given for her admissions, her proposed cooperation in selling properties to discharge the judgment debt, and her responsibilities for her 13-year-old son. She also argued that the terms should have been suspended. The central issues were whether the sentences were manifestly excessive and whether the personal mitigation justified suspension.

1. Appeal allowed in part. The two nine-month terms were reduced to six months and were to run concurrently with the existing six-month term. The circumstances did not justify suspension.
2. An appellate court should not ordinarily interfere with the sentencing judge’s assessment unless the sentence was wrong in principle or manifestly excessive. Sentencing for breach of a freezing order must address punishment, deterrence and coercion. Relevant considerations include prejudice, deliberateness, culpability, pressure, responsibility, remorse, cooperation and any reasonable excuse.
3. The appellant’s admissions were made only at the start of the committal hearing, after prolonged non-compliance and after many assets had been discovered through other means. She was therefore entitled to only minimal credit. Following Liverpool Victoria Insurance Company Ltd v Zafar [2019] EWCA Civ 392, best practice is first to determine the appropriate term after considering aggravating and mitigating features, and then to state the reduction for the admission. Failure to express those stages separately is not itself an error of law.
4. The court must be fully informed about the effect of imprisonment upon children or vulnerable adults for whom the contemnor is the sole or principal carer. Adequate alternative care does not remove the need to consider the harm caused to the relationship between parent and child. The evidence of the son’s distress justified reducing the two longer terms to six months.
5. Breaches of freezing orders are attacks on the administration of justice and ordinarily require immediate imprisonment. Although serious adverse consequences for dependants may justify suspension in an appropriate case, the mitigation here was not sufficiently powerful. It warranted shorter terms but did not outweigh the public interest in immediate custody.
6. The prospective sales of property and possible payment of the debt were too uncertain to affect sentence. The contempt could not be treated as purged before payment occurred. The appellant remained entitled to apply to the High Court for remission if the judgment debt was subsequently paid.

1. Court of Appeal (Civil Division): The appeal was allowed to the extent that the two nine-month terms were reduced to six months. The concurrent six-month term was left unchanged, and immediate custody was maintained: [2019] EWCA Civ 613.
2. High Court, Chancery Division: Falk J imposed concurrent custodial terms of nine months, nine months and six months for three admitted breaches of freezing orders and refused to suspend them: [2019] EWHC 469 (Ch).