Moutreuil v Andreewitch (Contempt: Sentence) (Rev 1)

For a deliberate and substantial breach of a freezing order, imprisonment may be the appropriate sanction because such conduct undermines the administration of justice and risks dissipation of assets. Imprisonment is a measure of last resort and must not be imposed merely because a contemnor cannot pay a fine. The court must assess both punishment for the historic breach and the need to secure future compliance. A custodial sentence may be suspended where the impact of immediate imprisonment on children or other vulnerable persons, together with the contemnor’s insight and prospects of compliance, justifies suspension. A serious breach may therefore attract a custodial term which is suspended on terms designed to secure compliance.

The applicant sought sanctions against the first respondent for multiple deliberate breaches of a freezing injunction made on 22 March 2019. The breaches had been established at an earlier hearing and reported as [2020] EWHC 1301 (Fam). The court had subsequently determined that the funds removed from the account belonged beneficially to the applicant in proceedings reported as [2020] EWHC 2068 (Fam), from which permission to appeal had been refused. The present hearing concerned the appropriate sentence for the proven contempt, including whether imprisonment should be immediate or suspended.

1. The court had power under Family Procedure Rules 2010, rules 37.4 and 37.9(1), to impose an appropriate sanction for disobedience of an order. Under rule 37.28, an order for committal could be suspended. Section 14(1) of the Contempt of Court Act 1981 permitted imprisonment for up to two years, and the court could also impose an unlimited fine.

2. Following Oliver v Shaikh [2020] EWHC 2658 (QB), the objects of sentence were to punish the historic breach and secure future compliance. Imprisonment was a measure of last resort. It was appropriate where the conduct was so serious that no other penalty would suffice, but not merely because the contemnor could not pay a fine. Genuine insight into the seriousness and unlawfulness of the conduct could reduce the risk of future breach.

3. The principles stated in JSC BTA Bank v Solodchenko (No.2) [2012] 1 WLR 350 confirmed that a deliberate and substantial breach of a freezing order was a serious matter ordinarily warranting imprisonment. A substantial fine might suffice where the contempt had been purged and assets recovered. The present breaches were deliberate, repeated and committed over an extended period, with the account treated as the respondent’s own and materially depleted.

4. The court applied the guidance in Liverpool Victoria Insurance Ltd v Khan [2019] EWCA Civ 392; [2019] 1 WLR 3833 concerning the impact of committal on others and the circumstances in which imprisonment could be suspended. The respondent cared for a school-age child and had contact with his other children. Preserving family relationships and enabling engagement with family therapy justified suspension, although it did not reduce the seriousness of the contempt.

5. Little weight was given to good character, applying Templeton Insurance Limited v Thomas and Panesar [2013] EWCA Civ 35, because previous good character provided limited assistance in cases involving serious breaches of freezing orders. The respondent’s sincere apology and stated intention to repay the money were taken into account.

6. Only imprisonment was appropriate. The respondent was sentenced to six months’ imprisonment, suspended for 12 months. He was warned that further non-compliance with orders carrying a penal notice would have serious and immediate consequences. The applicant was awarded her costs on the indemnity basis, subject to detailed assessment if not agreed.

This was a first-instance sentencing hearing. The earlier contempt findings were made in [2020] EWHC 1301 (Fam). The substantive judgment was reported as [2020] EWHC 2068 (Fam), and permission to appeal that decision was refused on 16 October 2020.