Frejek v Frejek

A contempt application may proceed in the respondent’s absence where the respondent has had clear notice, sufficient time to prepare, no adequate reason for non-attendance, and an adjournment is unlikely to secure participation. The court must weigh prejudice, fairness and the overriding objective.

Contempt must be proved to the criminal standard. Although a respondent may remain silent, the court may draw appropriate inferences from the failure to provide an explanation. Where contempt is established but sentencing in the respondent’s absence would be an extreme step, the appropriate course may be to issue a bench warrant requiring attendance for sentencing.

The claimant, appointed personal representative of his late mother’s estate after the first defendant was removed as executor, applied to commit the first defendant for contempt. The alleged breaches concerned failures to provide estate accounts, the original grant of probate, a completion statement for the sale of the deceased’s former home, and an inventory of household contents.

The first defendant had repeatedly failed to engage with the proceedings and did not attend the remote hearing. The central issues were whether the application could fairly proceed in his absence, whether the four breaches were proved, and what sanction should follow.

1. The court proceeded in the first defendant’s absence. Applying the checklist identified in Sanchez v Oboz [2015] EWHC 235 (Fam), the court found that he had received sufficient notice and adequate opportunity to participate, had advanced no reason for non-attendance, had repeatedly failed to engage with the proceedings, and was unlikely to attend or be represented after an adjournment. Further delay would prejudice the administration of the estate. It was fair to proceed.
2. The alleged breaches had to be proved to the criminal standard. The first defendant was entitled to remain silent, but the court could draw inferences from his failure to provide any explanation.
3. All four grounds of contempt were established. The first defendant had failed to provide any up-to-date estate account; failed within the required period to provide the grant of probate or an affidavit explaining its absence, notwithstanding later indirect provision of the document; failed to provide evidence of the sale proceeds; and failed to provide the required inventory of possessions and household contents.
4. Sentencing immediately in the first defendant’s absence would be an extreme step. The court therefore directed the issue of a bench warrant and ordered that he be brought before the court for sentencing.