Ignite International Brands (UK) Limited & Anor v Inpero Limited & Anor

A committal application requires proof, to the criminal standard, that the order was clear, capable of compliance and deliberately breached. Where impossibility is raised and supported by some evidence, the applicant must prove that compliance was possible, in the sense that the respondent had a choice whether to comply. A breach is not merely technical where the respondent knowingly ignores a further order requiring a sworn affidavit, particularly after an earlier failure to comply. The court may consider whether committal proceedings establish only a technical contempt, but that concern does not apply where the breach is deliberate, significant and prejudicial.

The claimants sought to commit the second defendant, Mark Cooper, for contempt arising from two alleged failures to comply with court orders.

The first application concerned an order requiring delivery up of the claimants’ product inventory or provision of detailed information and supporting records explaining what had happened to missing stock. The second concerned a later order requiring Mr Cooper to file and serve a sworn affidavit identifying his and the first defendant’s assets exceeding £1,000 in value.

Mr Cooper disputed the first alleged breach on the basis that the stock schedule was inaccurate and compliance was impossible. He accepted the second non-compliance but characterised it as technical. The central issues were whether the breaches were proved to the criminal standard and whether they amounted to contempt.

1. Applicable requirements. The court adopted the requirements identified in Absolute Living Developments Ltd v DS7 Limited: the order must bear a penal notice and have been served; it must be clear and capable of compliance; the breach must be deliberate; and each allegation must be proved by the applicant to the criminal standard.
2. First contempt. Where impossibility is raised and supported by some evidence, the applicant must prove that compliance was possible, because the respondent must have had a choice whether to perform the required act. The evidence established a substantial unexplained shortfall in the products returned. The discrepancy could be demonstrated independently of the disputed schedule by reference to Mr Cooper’s own inventory count, his account of sales and the quantities collected. His explanation of disposals was incomplete, unsupported and deliberately evasive. He failed to provide the full details and documentary records required by the order. The first contempt was therefore proved to the criminal standard.
3. Second contempt. The failure to file and serve the sworn affidavit required by the later order was not a technical breach. Mr Cooper had been expressly told that an affidavit was required and had ignored the order, as he had ignored the earlier order. His explanation that he believed he had complied was unconvincing. The breach was deliberate and prejudiced the claimants, who were entitled to a complete and candid account of assets. The second contempt was established.
4. The principle concerning disproportionate or pointless litigation, discussed in Jameel v Dow Jones and Co and Sectorguard PLC v Dienne PLC, did not assist because the breaches were serious rather than merely technical. The factors identified in Crystal Mews Limited v Metterick supported that conclusion.
5. Mr Cooper was in breach of both orders and in contempt of court. The matter was listed for sanction, and the breaches remained ongoing.