Frank Eric Hersman v Alexandra Caroline De Verchere

A court may proceed with committal proceedings in the respondent’s absence where the respondent has proper notice, understands the hearing and has deliberately chosen not to attend. The applicant bears the burden of proving contempt beyond reasonable doubt. The court must not draw adverse inferences from the respondent’s silence or absence. Contempt may be established by proving separate breaches of an order, even where other alleged breaches are not proved. Sentencing serves both to punish contempt and to secure compliance. Deliberate, prolonged and unapologised non-compliance with orders may justify immediate imprisonment, while the sentence may be reduced where the contempt is serious but not at the highest level.

The applicant sought to commit the respondent for contempt of court arising from alleged breaches of financial remedy and enforcement orders concerning Chalet Pearl, a French property beneficially owned by the applicant. The alleged breaches included failure to give vacant possession, surrender keys and access codes, provide management documentation, transfer rental deposits, pay rental income into an escrow account and transfer legal title.

The respondent had notice of the proceedings but did not attend or instruct representatives. The court considered whether it could proceed in her absence, whether the individual allegations were proved to the criminal standard, and what sentence was appropriate.

1. Proceeding in absence. The respondent had been given proper notice of the order, the committal application and the hearing. She had been informed of her rights to representation, an interpreter, preparation time, silence and legal aid. She deliberately chose not to attend. The court therefore proceeded in her absence.
2. Proof of contempt. The applicant bore the burden of proof and had to establish each alleged breach beyond reasonable doubt. The court drew no adverse inference from the respondent’s failure to attend or give evidence. Breaches consisting of failure to give vacant possession, surrender the keys and access codes, provide the required documentation and transfer rental deposits were proved beyond reasonable doubt.
3. The allegation concerning payment of rental income into the escrow account was not proved. Although the court considered it unlikely that there had been no net income, it had not investigated the respondent’s outgoings or prepared a balance sheet. The allegation concerning transfer of legal title was also not proved beyond reasonable doubt because it was unclear whether the respondent had been presented with the necessary transfer documents or informed sufficiently of the applicant’s refinancing arrangements.
4. Sentence. Contempt of the High Court is serious whether arising in children proceedings or other Family Division work. Relevant considerations included the deliberate and prolonged nature of the non-compliance, the absence of remorse or apology and the absence of any clear intention to comply. Sentencing had two purposes: punishment and securing compliance. An immediate custodial sentence was necessary. The court imposed three months’ imprisonment, of which half was to be served, and permitted the respondent to apply to purge her contempt by complying with the outstanding requirements.

The judgment records that the respondent appealed an earlier enforcement order. Moylan LJ refused permission to appeal on 7 July 2023, concluding that the proposed appeal had no real prospect of success. The present judgment determined the subsequent committal application at first instance.