Muhammmad Waris Saleemi v Asif Parvez

A court may hear a contempt application in the respondent’s absence where service and notice are sufficient, the absence is wilful, an adjournment is unlikely to secure attendance or representation, the applicant would suffer prejudice from delay, and the forensic process can proceed fairly. Contempt for breach of an order requires proof to the criminal standard that the respondent knew of the order, deliberately failed to perform the required act, and knew the facts constituting the breach. Knowledge that the conduct amounted to a breach was unnecessary. Although sentencing is ordinarily adjourned to permit mitigation and purging, the court may sentence immediately where the contempt is clear and serious, the respondent has evaded the process, and a further hearing would be disproportionate.

The claimant, the sole beneficiary of an estate, applied to commit the defendant, its sole executor, for breach of orders requiring an account and payment of the estate sum in default. The orders were personally served and carried penal notices. The defendant failed to comply, ceased engaging with the proceedings and did not attend the committal hearing. A bench warrant had been issued but could not be executed.

The court considered whether to proceed in the defendant’s absence, whether contempt was established, and whether sentence should be imposed without a further adjournment.

1. Proceeding in absence. The court applied the checklist in Sanchez v Oboz [2015] EWHC 235 (Fam). The defendant had adequate notice, had advanced no reason for non-attendance, had acted wilfully, was unlikely to attend after an adjournment, and had not been materially disadvantaged because the claimant’s case was fairly presented. Delay would prejudice the claimant and proceeding was consistent with the overriding objective.
2. Contempt. Applying Cuciurean v Secretary of State for Transport [2021] EWCA Civ 357, the court required proof to the criminal standard that the defendant had notice of the orders, deliberately failed to perform required acts within the specified time, and knew the facts making the omission a breach. The defendant’s personal service, knowledge of his executorial duty and failure to account established contempt.
3. The court also applied the guidance in Varma v Atkinson [2020] EWCA Civ 1602: once knowledge of the order and the relevant acts or omissions is proved, it is unnecessary to prove that the defendant knew those acts or omissions constituted a breach.
4. Sentence. The usual course identified in JSC BTA Bank v Solodchenko [2011] EWHC 1613 (Ch) is to adjourn sentencing for mitigation, purging the contempt and the possibility that attendance may be secured. The court recognised a discretion to sentence immediately, as in XL Insurance v Ipors Underwriting Ltd [2021] EWHC 1407 (Comm). That unusual course was justified because the contempt was clear and serious, the defendant had evaded a previously issued bench warrant, and a further hearing would impose disproportionate expense on the claimant.
5. Contempt was established and the court proceeded directly to sentence.