Deutsche Bank AG v Sebastian Holdings Inc & Anor

A contempt application gives adequate particulars if, read against the relevant background, it provides a clear and succinct summary which enables the alleged contemnor to understand and meet the substance of each alleged breach. The necessary detail depends on the nature of the allegation and the information available to the applicant.

An order requiring attendance under CPR Part 71 to provide enforcement information requires truthful and complete answers. Deliberately withholding information or giving dishonest or contrived answers may constitute contempt through breach of the order itself. It need not be pursued exclusively as interference with the administration of justice.

Deutsche Bank AG had obtained a substantial judgment against Sebastian Holdings Inc. It subsequently obtained an order under CPR Part 71 requiring the company’s former beneficial owner, Mr Alexander Vik, to provide documents and answer questions about the company’s means.

The bank alleged that Mr Vik deliberately failed to provide truthful or complete information and failed to produce required documents. It applied to amend its committal application. Mr Vik cross-applied to strike it out for inadequate particularisation, abuse of process, delay, infringement of his right to silence and failure to obtain permission for allegations concerning his oral evidence.

The central issues were whether the original application sufficiently identified the alleged contempts, whether its pursuit was abusive, and whether false or incomplete answers at a Part 71 examination could constitute breach of the Part 71 order itself.

1. The strike-out application was dismissed and permission to amend was granted, subject to protection of Mr Vik’s right to silence. The original committal application, by a narrow margin, adequately identified the case which he had to meet.

2. The governing question was whether the application, read against its relevant background, gave the alleged contemnor enough information to understand and meet the substance of each alleged breach. The application notice needed a succinct summary; the supporting evidence could provide the detail. The degree of particularity depended on the nature of the alleged conduct, the information available to the applicant and the respondent’s knowledge of the circumstances. Neither the former nor the current CPR Part 81 required particulars equivalent to counts in a criminal indictment.

3. Because the original application was adequate, there was no procedural default to which the Denton framework applied. Had there been a defect, amendment would nevertheless have furthered the overriding objective. The proposed changes clarified existing allegations and caused no material prejudice. The court retained power to cure a defect where no injustice resulted.

4. The application was not an abuse of process. It had been pursued without objectionable delay and for the legitimate purpose of enforcing the judgment. The withdrawn allegations and errors represented a small part of the case and did not establish oppression, partisanship or an improper purpose. Committal may properly be used as a last resort to secure compliance with an enforcement order.

5. An alleged contemnor has an absolute right to remain silent. Evidence served in anticipation of a committal hearing remains inadmissible unless the respondent deploys it. The bank could use such evidence to prepare its reply, but its amended particulars could not refer to that evidence or depend upon it while it remained undeployed.

6. A CPR Part 71 order requiring a person to provide enforcement information necessarily requires truthful and complete answers. Deliberate stonewalling, contrived lack of recollection or dishonest and incomplete answers may therefore constitute contempt through breach of the order. The breach is functionally directed to enforcement of private rights and differs from the public wrong of interference with the administration of justice.

7. Under rule 81.3(5), permission was required only for the two specified categories. The present allegations fell within neither. They alleged breach of the Part 71 order, so no prior permission was required.

This was a first-instance determination of interlocutory applications within longstanding enforcement proceedings. Earlier stages included the substantive judgment in [2013] EWHC 3463 (Comm), the related costs appeal in [2016] EWCA Civ 23, and the dismissal of a jurisdiction challenge concerning service of the committal application in [2018] EWCA Civ 2011. The Supreme Court refused permission to appeal the jurisdiction decision.