Bond Turner Limited v Patrick Maginn

On a committal application, the court must identify precisely what the order required, determine whether it was breached and whether compliance was within the defendant’s power, and apply the criminal standard of proof. The burden remains on the applicant throughout.

Where serious breaches of a clear order are proved, imprisonment may be justified even if the defendant is absent and has offered no mitigation. A custodial sentence may be suspended for purposes extending beyond the immediate purging of contempt. Any condition must have practical force but should be tailored to the present circumstances and should not impose measures that are no longer necessary.

Bond Turner Limited applied to commit Patrick Maginn for contempt arising from alleged breaches of an order made on 14 December 2023. The order required him to deliver up confidential information and devices, provide information about his use or disclosure of that material, and file an affidavit confirming compliance.

Mr Maginn did not attend the hearing or respond to the application. Earlier, the court had dispensed with personal service of the original order and permitted alternative service of the committal application by post, WhatsApp and email. The central issues were whether the application could proceed in his absence, whether the breaches were proved to the criminal standard, and what sanction was appropriate.

1. Procedure and service. The evidence supporting the application was in a witness statement rather than an affidavit, contrary to Civil Procedure Rules 1998, rule 81.4(1). The court directed that the evidence could nevertheless be used because the mistake was genuine, the witness confirmed its truth orally, and there was no conceivable prejudice. Alternative service had been properly effected under rules 6.27 and 6.28. The application satisfied the formal requirements of rule 81.4(2), and it was reasonable and proper to proceed in the defendant’s absence.
2. Proof of contempt. Applying the five-stage approach summarised in L-W (Children) (Enforcement and Committal: Contact) [2010] EWCA Civ 1253, the court identified the requirements of the order by construction, found that they had not been performed, and found no realistic basis for concluding that compliance was impossible. The claimant bore the burden throughout, and the breaches were proved to the criminal standard.
3. Sentence. The breaches were serious. The defendant had made no attempt to comply, seek variation or discharge, explain his position, apologise or engage with the proceedings. Applying the guidance considered in Isbilen v Turk [2024] EWCA Civ 568, including the guidance derived from Liverpool Victoria Insurance v Khan [2019] 1 WLR 3833 and Attorney General v Crosland [2021] 4 WLR 103, only custody was adequate. Four months’ imprisonment was proportionate.
4. Suspension. A suspended sentence is not confined to encouraging the contemnor to purge the contempt. It must have an effective condition. The court declined to require full compliance with the original order or extensive imaging of devices, because circumstances had changed and those measures were no longer necessary. The sentence was suspended for six months on condition that, within 28 days of service, the defendant provide a witness statement explaining what he had done with the material and verifying its deletion and non-use beyond the conduct identified in the order. Default could lead to an application for a warrant of committal.