Siboni v Ferrari & Anor

Committal for contempt is a criminal process and should proceed in a defendant’s absence only where the circumstances justify doing so. Relevant considerations include the defendant’s presence in the jurisdiction, apparent deliberate absence, participation in the proceedings and involvement in the alleged breaches. The prosecution must prove, to the criminal standard, notice of the order, breach within the required time, an intentional act or omission, and knowledge of the facts making the conduct a breach. An intention to flout the order is unnecessary, although it is relevant to penalty. Where the evidence establishes deliberate breaches, the court may impose imprisonment, but imprisonment remains a punishment of last resort. A substantial compliance-based custodial term may be suspended or reduced where the contempt is purged.

The claimant applied to commit the defendants for contempt arising from alleged breaches of orders made in administration proceedings. The defendants were absent and unrepresented. The court distinguished between them.

The first defendant was resident outside the jurisdiction and had not herself carried out conduct in the jurisdiction amounting to breach. The court adjourned that application with liberty to restore it. The second defendant was present in the jurisdiction, appeared to be wilfully absenting himself, had participated actively in the proceedings and was alleged to have breached the orders.

The central issues were whether the committal application was procedurally regular, whether the relevant order was capable of supporting committal, whether the breaches were intentional and culpable, and what sanction was appropriate.

1. First defendant. It was inappropriate to proceed in her absence where she remained outside the jurisdiction, had not herself demonstrated conduct amounting to breach, and committal would provide no real benefit. The application was adjourned with liberty to restore.
2. Proceeding against the second defendant. The court proceeded despite his absence because he was present in the jurisdiction, appeared to be wilfully absenting himself, and had actively participated in both the proceedings and the breaches. This also served the importance of upholding court orders.
3. Procedural requirements. Applying Universal Business Team PTY Ltd v Moffitt [2017] EWHC 3251 (Ch), the application notice properly stated the consequences of committal, the permission order was valid, substituted service had been authorised because personal service was impracticable, and the supporting affidavit was regular. The order breached contained an appropriate penal notice and was capable of supporting committal.
4. Elements of contempt. Applying Farnsworth v Lacey [2013] EWHC 3487 (Ch) at [20], the claimant had to prove beyond reasonable doubt that the defendant had notice of the order, breached it by an act or omission within the specified time, intended the act or omission, and knew the facts which made it a breach. An intention to flout the order was unnecessary, although relevant to sentence.
5. The court found deliberate breaches, including disposal of property and payment from an administrator’s account. Although service before the breaches had been defective and there was an evidential gap, the defendant’s participation in the proceedings, knowledge of the originating order, correspondence and surrounding circumstances established the required notice, breach and culpability to the criminal standard.
6. The contempt was serious, ongoing, prejudicial and aggravated by non-cooperation, absence of admission, apology or remorse, and failure to purge the contempt. Imprisonment was the starting point. An appropriate sentence, if imposed immediately, would have been 14 months, comprising four months for punishment or deterrence and 10 months to secure compliance. The order was stayed for 28 days to allow submissions and an opportunity to purge the compliance element.