MR RIYADH NASSER ALOKAILI & Anor v MR BALJINDER CHOHAN & Ors

A person commits contempt by breaching an order only where the order was known, the required act was omitted deliberately, the relevant facts were known, and compliance was within the person’s power. The criminal standard of proof applies. A deliberate failure to comply with disclosure orders made to assist enforcement of a judgment is an attack on the administration of justice. Sentencing must balance punishment for past defiance with coercion towards future compliance, while treating the punitive purpose as paramount. Imprisonment may be required where the breach is serious, deliberate and continuing.

The claimants obtained money judgments against the defendants following disputes concerning off-plan property transactions. Orders made in the enforcement proceedings required the second defendant, both personally and as an officer of corporate judgment debtors, to provide information and documents concerning the judgment debtors’ means and the application of funds.

The second defendant failed to comply with the order of 9 November 2021, as extended by consent. He accepted the breaches shortly before the committal hearing, offered explanations based principally on impecuniosity and difficulties obtaining documents from solicitors, and produced partial disclosure. The issue was whether the breaches constituted contempt and, if so, the appropriate penalty.

1. The application for committal was granted. The court considered the breaches of the order of 9 November 2021, rather than treating the earlier order of 22 September 2021 as a separate contempt.

2. Applying the principles stated in FW Farnsworth Ltd v Lacy and approved in Cuadrilla Bowland Ltd v Persons Unknown, contempt by breach of an order required proof beyond reasonable doubt that the defendant had notice of the order, had deliberately failed to perform the required act, knew the facts making the omission a breach, and had the power to comply. An intention to flout the order was unnecessary, although intention was relevant to sentence.

3. The second defendant had actual knowledge of the orders. He knew what was required and knew that he was not complying. His failure was deliberate. Impecuniosity, difficulties experienced by the solicitors holding documents, ill health and the absence of a prior application for relief did not establish inability to comply. He had delayed taking steps to obtain the documents and had produced only partial and late compliance.

4. The breach was serious, deliberate and calculated to hinder enforcement of the judgments. It caused prejudice to the claimants. The sentencing guidance in Liverpool Insurance Company Ltd v Zafar and Asia Islamic Trade Finance Fund Ltd v Drum Risk Management Ltd was relevant. The sentence had to punish defiance of the court’s order and encourage future compliance, but the coercive purpose did not override the punitive purpose.

5. A custodial sentence was necessary. The court imposed 32 weeks’ imprisonment, allowing very slight credit for the admission made on the eve of the hearing and the limited disclosure. The sentence was not suspended. Its commencement was postponed to 11 July 2022 to allow compliance with a further focused disclosure order. The future judge could determine whether compliance sufficiently purged the contempt.