Hollie Louise Totton & Anor. v Mark David Totton

A person subject to a committal order who wishes to rely on privilege against self-incrimination must raise the privilege within the time allowed for compliance and explain the refusal to provide information. Late reliance may establish compliance from the date of the affidavit, but it does not retrospectively remove contempt already committed. Where contempt continues until late compliance, the court may retain the custodial element reflecting past breaches while discharging a prospective element intended to secure future compliance. Suspension is inappropriate where there is no realistic prospect that it will encourage compliance with the underlying obligation.

The applicants, beneficiaries of an estate, sought committal of the respondent, who was both a beneficiary and executor, for breaches of an order requiring information and steps connected with the administration and distribution of the estate.

The respondent had previously been found in contempt and sentenced to three months’ imprisonment, comprising six weeks for past breaches and six weeks directed towards future compliance. The sentence was deferred to allow him to purge his contempt. He later filed an affidavit relying, in part, on privilege against self-incrimination. The issue was whether that reliance retrospectively answered the earlier breaches and, if not, how the sentence should be varied.

1. Approach to purging contempt. The court adopted the approach in Alokaili v Chohan [2022] EWHC 2043 (Ch): where a respondent claims to have complied with the original order but the applicants contend that contempt continues, the applicants must prove to the requisite standard that the respondent remains in contempt.
2. Privilege against self-incrimination. The respondent was entitled to rely on the privilege, but he had to raise it within the time periods specified by the order and explain why the relevant information was not being provided. His failure to engage with the process meant that reliance first raised on 6 October 2022 did not retrospectively eliminate the earlier contempt. Compliance was established only on that date.
3. Sentence. The committal order was not discharged in full. The six-week custodial element representing past breaches remained appropriate, having regard to the respondent’s lack of engagement and late compliance. The prospective six-week element was discharged because the respondent had ultimately complied with the order to the extent that he relied on the privilege.
4. Suspension. The sentence was not suspended. Although the respondent remained in employment and had no previous trouble with the police, he remained in breach of his obligations to administer the estate and distribute the applicants’ entitlements. There was no sufficient prospect that suspension would secure that compliance.
5. The order was varied so that the respondent was to serve an immediate six-week custodial sentence, commencing on 10 October 2022. He was informed that he could apply to purge his contempt by making further disclosure and complying with his obligations.

The judgment records earlier procedural steps in the same committal proceedings:

• 31 August 2022: the respondent was found in contempt in his absence and the application was relisted.
• 15 September 2022: the respondent was present, was committed to prison for three months, and the sentence was deferred to allow compliance.
• 7 October 2022: the court varied the order, retaining an immediate six-week sentence and discharging the prospective element.