Hollie Louise Totton & Anor. v Mark David Totton

A committal application may proceed in the defendant’s absence where the defendant had notice of the application and hearing, sufficient time to prepare, no adequate explanation for non-attendance, and an adjournment is unlikely to secure attendance or representation. The court must balance the defendant’s disadvantage, prejudice to the applicant, the integrity of the forensic process and the overriding objective.

To establish civil contempt, the applicant must prove beyond reasonable doubt that the defendant knew the terms of the order, breached it, and knew the facts making the conduct a breach. The defendant need not know that the conduct amounted in law to contempt. The court may draw proper inferences from silence, while respecting the right to silence.

The applicants, beneficiaries of an estate, sought committal of the respondent executor for failing to comply with an order requiring information about the estate, an affidavit, a full inventory and accounts. The order had been personally served and contained a penal notice. The respondent did not engage with the proceedings, attend the hearing or provide an explanation.

The court first considered whether the committal application should proceed in his absence. It then determined whether the applicants had proved the alleged breaches and the respondent’s knowledge to the criminal standard. The issue was whether liability for civil contempt had been established in respect of the two requirements in the order.

1. Proceeding in the respondent’s absence. Applying the principles identified in the notes to CPR Part 81.8.3, the court proceeded in the respondent’s absence. He had been served with the relevant documents and notice of the hearing, had sufficient time to comply or explain, had given no reason for non-attendance, and had deliberately failed to engage with the proceedings. An adjournment was unlikely to secure attendance or representation. The applicants had already suffered substantial prejudice, and proceeding was consistent with the overriding objective. [16]–[17]
2. Elements of civil contempt. The court applied the three elements identified in Masri v Consolidated Contractors International Co SAL: knowledge of the terms of the order; conduct involving breach of the order; and knowledge of the facts making the conduct a breach. The burden was proof beyond reasonable doubt. [19]–[20]
3. The respondent knew the terms of the order because it had been personally served on him and carried a prominent penal notice. He breached paragraph 7 by failing to provide the required asset information by 7 May 2022 or thereafter. He breached paragraph 9 by failing to serve the required affidavit, inventory and accounts by 21 May 2022 or thereafter. [21]–[23]
4. The applicants proved that the respondent knew the facts constituting the breaches. It was unnecessary to prove that he knew his failures amounted legally to breaches. The court could draw inferences from his failure to provide an explanation, while recognising his right to silence. [20], [24]–[25]
5. Liability for both alleged contempts was established. Sentence was adjourned because the respondent was not present and should first have an opportunity to be heard. [25]–[26]

First-instance committal decision. No appellate history was stated in the judgment.