Nebahat Evyap Isbilen v Selman Turk & Ors

Civil contempt for breaching a court order does not require an intention to breach the order. Once notice and knowledge of the relevant facts are proved, it is enough that the person deliberately performed the act, or deliberately omitted to act, and that the conduct objectively breached the order. A mistaken understanding may affect punishment.

An obligation to provide information by a specified time can remain effective after the deadline. Continued non-compliance may constitute a continuing breach, although it does not create a new contempt each day. A director who knows of an order against a company must take reasonable steps to secure compliance. A defective penal notice may be waived where this causes no injustice.

The claimant obtained a proprietary freezing and disclosure order against the first defendant and associated companies. The order required prompt disclosure of assets, transactions, traceable proceeds and related information. Sir Anthony Mann found five breaches proved to the criminal standard and imposed 12 months’ immediate imprisonment: [2024] EWHC 565 (Ch).

The defendant appealed against the findings, the fairness of the hearing and the sentence. He relied on his ADHD, alleged inadequate legal advice, the asserted absence of a sufficient mental element, questions about continuing disclosure obligations, his position as a company director and the wording of the penal notice. The claimant sought permission to cross-appeal against findings that further contempts had not been proved.

The central issues were the ingredients of civil contempt for non-compliance with a disclosure order, the duration of the obligations, director liability, procedural fairness and the proper sanction.

1. Disposition. The defendant’s appeal against the findings of contempt and the length of the 12-month term was dismissed. The appeal was allowed only to the extent that the term was suspended for three months from judgment. It could be activated if substantial non-compliance remained at the end of that period. Permission to cross-appeal was refused.

2. Civil contempt did not require proof that the defendant intended to breach the order or understood that his conduct constituted a breach. The claimant had to prove notice of the order, knowledge of the facts and deliberate conduct or omission which objectively breached the order. Subjective understanding and culpability remained relevant to sanction. The judge was entitled to find that the defendant had not genuinely embarked upon the required disclosure exercise and that several breaches were deliberate.

3. The obligations had not ceased when their initial deadlines expired. A broad obligation to provide information “forthwith” required performance on service or as soon as reasonably practicable. Different information might reasonably be supplied at different times. An order requiring performance by a fixed time could impose a continuing obligation or produce a continuing breach, without generating a fresh contempt every day. The extended date was therefore relevant when assessing the defendant’s understanding and whether the existing breaches merited punishment.

4. The hearing was fair. The judge held a ground-rules hearing, consulted the intermediary, adjusted questioning and breaks, and monitored the defendant’s participation. A court may assess expert evidence alongside its own observations, provided that it acts cautiously and gives reasons.

5. A director aware of an order against a company has a personal duty to take reasonable steps to secure the company’s compliance. This “responsible persons liability principle” applies to mandatory as well as prohibitory orders. The judge applied it correctly to the company-specific disclosure obligation.

6. Civil Procedure Rules 1998 rule 81.2 did not make the naming of an individual director in the penal notice an indispensable prerequisite to enforcement. Naming the director is good practice. Any defect could be waived where the respondent understood what was required and suffered no injustice.

7. Failure to provide ordered disclosure itself causes prejudice. It impedes the litigation, increases suspicion, cost and difficulty, and may prevent protective steps. The sanctions hearing therefore did not need to await trial. Deliberate and substantial non-compliance with disclosure supporting a freezing order will ordinarily justify an immediate custodial sentence measured in months. Caring responsibilities may justify suspension or a reduction, but do not compel suspension. Here suspension also served the coercive purpose of giving a final opportunity to comply.

1. Court of Appeal (Civil Division): By [2024] EWCA Civ 568, dismissed the appeal against the findings of contempt and the length of the term, but suspended the 12-month term for three months. It refused the claimant permission to cross-appeal.

2. High Court, Chancery Division: Sir Anthony Mann found five breaches of the disclosure order proved to the criminal standard, found a sixth allegation unproved, and imposed 12 months’ immediate imprisonment: [2024] EWHC 565 (Ch).