nChain Holding AG (formerly HEH Holding AG) v Christen Ager-Hanssen

In contempt proceedings, the court may proceed in the defendant’s absence where the defendant has proper notice, has sufficient time to prepare, has waived attendance, and an adjournment is unlikely to secure participation. The court must also consider any prejudice to the absent defendant, prejudice caused by delay, and the integrity of the forensic process.

Contempt must be proved beyond reasonable doubt. The applicant must establish that the defendant knew the order, breached it, and knew the facts making the conduct a breach. Deliberate, substantial and continuing breaches involving retained confidential information may justify immediate imprisonment.

nChain Holding AG applied to commit its former chief executive, Christen Ager-Hanssen, for contempt arising from non-compliance with orders made in October 2023 by Mr Charles Hollander KC and in January 2024 by Mr Justice Henshaw.

The orders required information about confidential information disclosed by the defendant, delivery up of company devices, surrender of personal devices and documents, and access for forensic imaging. The defendant had notice of the proceedings and orders but did not attend or participate meaningfully. The court therefore had to determine whether to proceed in his absence, whether the breaches were proved, and the appropriate sanction.

1. The court proceeded in the defendant’s absence. Applying the checklist identified in Sanchez v Oboz [2015] EWHC 235 (Fam), the judge found that the defendant knew of the orders and application, had been properly served by email, had sufficient notice, had advanced no adequate reason for non-attendance, and had waived his right to be present. An adjournment was unlikely to secure attendance. The claimant would suffer prejudice from delay, and proceeding would not cause undue forensic prejudice.

2. Contempt had to be proved to the criminal standard. Following the principles approved in Navigator Equities v Deripaska [2024] EWCA Civ 268, the court had to be sure that the defendant knew the terms of the order, acted in breach of it or failed to comply, and knew the facts making his conduct a breach.

3. The October order was breached because the required affidavit was not provided. Information previously supplied by the defendant’s solicitors could be relevant to sanction, but did not answer the separate question whether the court order had been complied with.

4. The January order was breached in several respects. The defendant failed to deliver up company devices and failed to surrender devices, documents and data access required for forensic examination. The requirements for contempt were satisfied, and the claimant had also complied with CPR Rule 81.4.

5. In determining sanction, the judge considered the guidance summarised in The All England Lawn Tennis Club (Championships) Limited v Hardiman [2024] EWHC 787 (KB) and the principles in JSC BTA Bank v Roman Vladimirovich Solodchenko [2011] EWCA Civ 1241. The breaches were deliberate, substantial, continuing and involved confidential information important to the claimant’s business. Immediate custody was appropriate. The two January breaches attracted concurrent sentences of 10 months’ imprisonment, and the October breach attracted a concurrent sentence of four months.

First-instance contempt decision. The judgment records earlier interlocutory orders made by Mr Justice Henshaw and Mr Charles Hollander KC, but no appellate decision.