GML International Ltd & Ors, R (On the Application Of) v Harfield

In committal proceedings, the court may proceed in the defendant’s absence where proper notice and a fair opportunity to participate are established, the absence appears deliberate, an adjournment is unlikely to secure participation, and the balance of prejudice and the overriding objective favour proceeding. Contempt for breach of an order requires proof beyond reasonable doubt that the defendant knew the order, breached it by an act or omission, and knew the facts making that conduct a breach. It is unnecessary to prove an intention to breach the order or knowledge of its legal effect. Deliberate breach of a freezing order and its disclosure obligations is ordinarily a serious attack on the administration of justice and may justify immediate imprisonment. The court must nevertheless consider necessity, the shortest proportionate term, suspension, and any mitigation.

The claimants sought the committal of the defendant for failing to comply with a post-judgment worldwide freezing order. The order required him to disclose worldwide assets exceeding £1,000 and to serve an affidavit containing that information. The defendant had been served, but neither attended nor instructed his solicitors to appear at the committal hearing.

The court considered whether to proceed in his absence, whether the alleged breaches were proved to the criminal standard, and what sanction was appropriate. The central issues were the safeguards required before proceeding without a respondent, the elements of contempt for non-compliance with a court order, and the proper sentence for deliberate failure to comply with freezing-order disclosure provisions.

1. Proceeding in the defendant’s absence. The court proceeded despite the defendant’s absence. Applying the checklist in Sanchez v Oboz as set out in ICBC Standard Bank Plc v Erdenet Mining Corp LLC (EMC), the defendant had been properly served, had ample notice, had access to legal advice, and had offered no reason for non-attendance. His effective withdrawal of instructions for this hearing indicated a deliberate choice to be absent. An adjournment was unlikely to secure attendance or representation. The disadvantage to him was limited and substantially self-created, while delay risked prejudice to enforcement. Proceeding was consistent with the overriding objective and with Article 6.
2. Contempt established. The order had been served and contained the required penal notice. The court was sure that the defendant knew its terms, had failed to provide the required asset information and affidavit, and knew the facts constituting the breaches. Under Masri v Consolidated Contractors International Company SAL, the three requirements were knowledge of the order, conduct involving breach, and knowledge of the facts making the conduct a breach. The relevant intention concerned the act or omission, not an intention to breach the order or knowledge of its legal effect. The defendant was therefore in contempt of court for breaching paragraphs 7 and 8 of the freezing order.
3. Sentence. The court treated the breaches as deliberate, continuing and particularly serious. Disclosure was a critical element of the freezing order’s efficacy. Applying the sentencing principles discussed in Asia Islamic Trade Finance Fund Ltd v Drum Risk Management Ltd and Templeton Insurance Ltd v Thomas, the court considered necessity, proportionality, suspension, mitigation and the purposes of punishment and coercion. Nothing less than custody would suffice. A term of nine months’ imprisonment was the shortest commensurate term, it was not suspended, and no fixed punitive element was specified. The defendant could apply for remission if there were later compliance. A warrant for committal was issued.