IFACO Feed Company SA v Societe De Distribution Nouvelle D'afrique (SODINAF) SARL & Anor

The court may dispense with personal service of a contempt order or committal application where the respondent has actual notice and dispensing with service is just. A committal application may proceed in the respondent’s absence where the respondent has notice, sufficient time to prepare, no adequate reason for non-attendance exists, an adjournment is unlikely to secure participation, and proceeding causes no material forensic prejudice. A director who knows of a company’s order and is responsible for its breach may be committed for contempt. A wilful failure to procure compliance, or wilful interference with the administration of justice, is punishable as contempt. A continuing and flagrant breach of an asset-disclosure order may justify a two-year coercive sentence, subject to release or variation when compliance is achieved.

IFACO obtained a London GAFTA arbitral award against SODINAF for unpaid goods. Butcher J recognised the award under section 66 of the Arbitration Act 1996 and ordered SODINAF to disclose worldwide assets exceeding €10,000. The order was served through several channels and was endorsed with a penal notice addressed also to Mr Siaka, SODINAF’s chief executive.

SODINAF failed to disclose its assets. IFACO applied to commit SODINAF and Mr Siaka for contempt. The respondents did not appear, although they had notice of the order, application and hearing. The court considered whether service should be dispensed with, whether the application should proceed in their absence, whether both respondents were in contempt, and what sentence was appropriate.

1. Service. Under CPR 81.8(2), the court dispensed with personal service of the disclosure order on Mr Siaka. He had clear actual knowledge of the order and its terms, and personal service would have added nothing. Under CPR 81.10, rule 5A, service of the committal application was also dispensed with because repeated steps had brought it to his attention and it was just to proceed.
2. Absence of the respondents. The court applied the nine-factor checklist identified in R v Jones, Sanchez v Oboz, Taylor v Van Dutch Marine Holdings Ltd and Calderdale and Huddersfield NHS Foundation Trust v Sandip Singh Atwal. The respondents had notice and ample time, gave no reason for non-attendance, appeared indifferent to the proceedings, and were unlikely to attend or participate after an adjournment. Their breach was effectively unanswerable, while delay would prejudice IFACO through wasted costs. It was therefore just and fair to proceed.
3. Contempt. SODINAF’s non-compliance was proved beyond reasonable doubt and constituted contempt. Under Da Al Arkan Real Estate Development Company v Al Refai, a director or officer must know of and be responsible for the company’s breach. Knowledge of the order places the director under a duty to take reasonable steps to secure compliance. A wilful failure to procure those steps, or aiding and abetting the breach, is punishable as contempt: Westminster City Council v Adbins Ltd. Even absent technical office-holder status, wilful interference with the administration of justice, proved to the criminal standard, suffices: Attorney-General v Newspapers Publishing plc. Mr Siaka knew of the order, controlled SODINAF and had procured or instigated the breach.
4. Sentence. Although JSC BTA Bank and Solodchenko required consideration of an adjournment before sentencing, the court found no practical purpose in delaying sentence. Applying Lightfoot v Lightfoot and JSC BTA Bank v Stepanov, the flagrant, continuing and unexplained breach, the substantial judgment debt and the respondents’ disengagement justified a two-year custodial sentence. Mr Siaka was committed to prison for two years, with liberty to apply to vary or discharge the order upon compliance or an adequate explanation.

This was a first-instance committal application. The judgment records earlier procedural orders by Butcher J and Andrew Baker J, but no appellate decision.