BUSINESS MORTGAGE FINANCE 4 PLC & ORS v RIZWAN HUSSAIN

For repeated and deliberate contempts of court, imprisonment is imposed only as a last resort and must be the shortest term properly required. The court assesses seriousness by reference to prejudice, harm to the administration of justice, culpability, deliberation, cooperation, remorse, mitigation and the risk of further breaches.

A suspended sentence is inappropriate where the contemnor has persistently defied court orders, shows no remorse, and is likely to continue unless restrained. The court may direct alternative service of committal documents where personal service is being deliberately evaded and the alternative means will bring the order to the contemnor’s attention. Costs in civil committal proceedings are determined under Civil Procedure Rules 1998, Part 44.

The court determined the appropriate sanction for eighteen proved contempts of an injunction. The contempts involved deliberate and repeated interference with the claimants’ business, including procuring unauthorised proceedings and communications in the claimants’ names.

The defendant had failed to attend the contempt trial and sanctions hearing without proper explanation, despite court orders requiring attendance. The issues included the appropriate custodial sanction, whether imprisonment should be suspended, whether personal service of the committal documents should be dispensed with, whether execution should be stayed pending appeal, the costs order, and whether material should be referred to the Attorney-General concerning possible vexatious-litigant proceedings.

1. Sanction. The contempts were repeated, deliberate, premeditated and contumacious. They involved concealment through others, interference with the administration of justice, harassment of third parties, serious prejudice to the claimants and substantial culpability. The defendant had shown no cooperation, remorse, apology or reasonable excuse.
2. Following the guidance in Solicitors Regulation Authority v Khan, the court treated imprisonment as a last resort and imposed the shortest term properly required. A fine would not meet the circumstances. The appropriate sentence for all the contempts taken together was twenty-four months’ imprisonment.
3. The sentence was not suspended. The defendant had continued to defy court orders and there was an overwhelming likelihood of further breaches unless he was restrained by imprisonment. The practical difficulty of proving breaches of conditions while he remained concealed further supported immediate custody.
4. The court exercised its power under CPR 81.9(3) to dispense with personal service. Service by email through the defendant’s solicitors and at known email addresses was sufficient to bring the order and warrant to his attention.
5. The committal order and warrant were to issue immediately. The court declined to stay them pending appeal, distinguishing the limited stay granted by Phillips LJ in relation to forcible entry and leaving any wider application for a stay to the Court of Appeal.
6. The defendant was ordered to pay the claimants’ costs on the indemnity basis. No special stay or protection was justified without evidence of his financial position. The evidence and orders were to be sent to the Attorney-General so that the Attorney-General could consider possible vexatious-litigant proceedings.

The judgment followed an earlier first-instance judgment finding the defendant in breach of the injunction: [2022] EWHC 449 (Ch). This hearing determined sanction and related consequential applications. The defendant was entitled to appeal the findings of contempt and sentence without permission, with the Court of Appeal identified as the appellate court.