Colin Suckling v Jill Margaret Suckling

A committal application may proceed in the respondent’s absence where the court is sure that the respondent had notice, deliberately failed to attend, and the alleged contempts are straightforward. The court must nevertheless take care to account for the respondent’s inability to address mitigation or penalty.

Contempt requires proof beyond reasonable doubt of a clear order, proper service, deliberate non-compliance and knowledge of the facts making the conduct a breach. A committal process cannot be used to enforce a costs order. Sentencing should address punishment, deterrence and, where appropriate, coercion of compliance. A custodial sentence should be no longer than necessary and may be suspended where that will effectively secure compliance.

The claimant applied to commit the defendant for contempt arising from her failure to comply with an order appointing a substituted personal representative of their deceased father’s estate. The order required her to deliver estate documents and provide verified accounts. It also required payment of costs on account.

The defendant had been personally served with the order and the committal application but did not attend. The court considered whether to adjourn for a warrant, whether procedural defects should be waived, whether the alleged breaches were proved, and what penalty was appropriate.

1. The court proceeded in the defendant’s absence. It was sure that she had notice of the application and hearing, had deliberately absented herself, and had engaged in a continuing breach causing ongoing prejudice to the estate. The alleged contempts were straightforward and could be determined beyond reasonable doubt. The court warned that the defendant’s inability to address mitigation required particular care.
2. The application notice lacked the prominent penal notice required by CPR Part 81 PD 13.2(4). That defect was waived under CPR Part 81 PD 16.2 because the defendant had personally received the order, which contained a penal notice, and a letter explaining the committal consequences. No injustice had been caused.
3. The formal requirements for committal were satisfied for the obligations to deliver documents and provide accounts: the order contained a penal notice, had been personally served, and service occurred before the compliance period expired. The costs obligation was different. The court held that committal could not properly be used to enforce it under CPR Part 81.4(1), and struck out that ground.
4. Applying FW Farnsworth v Lacy [2013] EWHC 3487 (Ch), the court found that the order was clear and unequivocal, the defendant knew its terms, and her total failure to comply was deliberate. The first two contempts were proved beyond reasonable doubt.
5. The purposes of sentence were to uphold the authority of the court, punish and deter disobedience, and encourage belated compliance. Relevant sentencing factors included prejudice, pressure, deliberateness, culpability, responsibility for the breach, appreciation of seriousness, co-operation, admission, apology, character and personal mitigation. The list was not closed.
6. Having regard to R v Montgomery [1995] 2 Cr App R 23, International Sports Tours Ltd v Shorey [2015] EWHC 2040 (QB) and The Official Receiver v Brown [2017] EWHC 2762 (Ch), the custody threshold was passed. A six-month custodial sentence was appropriate, reducible to two months if the contempt were purged. The sentence was suspended on terms requiring full compliance within 14 days of personal service. Activation would require a further application for a warrant.

Not stated in the judgment.