Deutsche Bank AG v Sebastian Holdings Inc & Anor

An individual committed to prison for contempt, including under a suspended committal order, may appeal as of right against the committal order and challenge the underlying finding of contempt. That remains so where liability and sentence were determined at separate hearings. Before any committal order is made, however, permission is required to appeal a standalone order recording contempt.

On an appeal against factual findings in contempt proceedings, the criminal standard of proof does not reduce the appellate court’s restraint. Intervention requires a material and identifiable error, or a conclusion that was plainly wrong. Earlier civil findings may be considered as context, but the committal court must independently decide the alleged contempt on the evidence before it.

Following a judgment debt owed by Sebastian Holdings Inc, Deutsche Bank obtained an order under CPR Part 71 requiring Alexander Vik, a director of the company, to provide information and documents about its means.

Mrs Justice Moulder found that Mr Vik had deliberately given false evidence at his examination and had deliberately failed to produce required documents: [2022] EWHC 1599 (Comm). She subsequently imposed a 20-month suspended sentence of imprisonment, conditional on further co-operation: [2022] EWHC 2057 (Comm).

Mr Vik appealed both the contempt findings and sentence. The appeal raised a preliminary question about permission to appeal where contempt and sanction are dealt with separately, as well as challenges to factual findings, credibility, fresh evidence, and sentence.

1. Appeal dismissed. An individual committed to prison for contempt has an appeal as of right under section 13 of the Administration of Justice Act 1960 and CPR r 52.3(1)(a)(i). That appeal may challenge both the sentence and the antecedent finding of contempt. The right is not lost because the court first records the finding of contempt and only later makes the committal order. Before a committal order is made, however, an appeal against a standalone contempt order requires permission.

2. The court should ordinarily direct that time for appealing the contempt finding does not run until sentence has been determined. If the individual is then committed, the appeal lies against the committal order. If a lesser sanction is imposed, permission to appeal remains necessary. A corporate contemnor, which cannot be committed to prison, requires permission.

3. The appeal against the findings failed. The criminal standard applies to the elements of contempt, but an appellate court does not retry the case or reassess credibility. It may interfere only for a material error of law or fact, a failure to consider material evidence, a serious logical flaw, or a conclusion outside the range open to a reasonable judge. The first-instance judge had independently assessed Mr Vik’s credibility on the evidence in the committal proceedings. She could take account of earlier findings as background without treating them as proof of the present allegations.

4. It was not unfair to consider Mr Vik’s responses concerning allegations no longer pursued as false-evidence allegations. The underlying documents remained relevant to a live complaint of non-disclosure and to credibility. Mr Vik had notice of the matters and an opportunity to respond.

5. The proposed fresh evidence was refused. It had been available at the committal hearing, no adequate explanation had been given for its absence, and it had minimal probative value. The 20-month sentence was also upheld. The judge had properly assessed high culpability and harm, selected the shortest commensurate term, and was entitled to include both punitive and coercive elements.

• Court of Appeal (Civil Division): Appeal dismissed: [2023] EWCA Civ 191.
• High Court, Commercial Court: Found Mr Vik in contempt for deliberately giving false evidence and failing to produce documents: [2022] EWHC 1599 (Comm).
• High Court, Commercial Court: Imposed a 20-month suspended committal order, conditional on future compliance: [2022] EWHC 2057 (Comm).