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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Symes v Jonathan Guy Anthony Phillips & Ors [2005] EWCA Civ 533 (06 May 2005) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2005/533.html Cite as: [2005] EWCA Civ 533, [2005] 1 WLR 2986 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT – CHANCERY DIVISION
MR JUSTICE PETER SMITH
Strand, London, WC2A 2LL |
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B e f o r e :
and
LORD JUSTICE LONGMORE
____________________
ROBIN JAMES SYMES |
Appellant |
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- and - |
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JONATHAN GUY ANTHONY PHILLIPS & ORS |
Respondents |
____________________
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR A STEINFELD QC, & MR J STEPHENS & MR N MCLARNAN (instructed by Messrs. Lane & Partners) for the Respondents
____________________
Crown Copyright ©
Lord Justice Pill:
"If, through the action or inaction of a public authority, a criminal charge is not determined at a hearing within a reasonable time, there is necessarily a breach of the defendant's Convention right under Article 6(1). For such breach there must be afforded such remedy as may (section 8(1) [of theHuman Rights Act 1998]) be just and proportionate or (in Convention terms) effective just and proportionate… The appropriate remedy will depend on the nature of the breach and all the circumstances. If the breach of the time requirement is established retrospectively after there has been a hearing, the appropriate remedy may be a public acknowledgement of the breach, a reduction in the penalty imposed on a convicted defendant, or the payment of compensation to an acquitted defendant."
It is common ground that contempt proceedings are criminal proceedings for the purposes of Article 6.
The Order and judgment of 21 January 2005
"(1) Mr Symes' failure to comply with Undertaking 8 as embodied in the Order of 22nd May 2003, namely his failure to reveal the true source of the funds used by Lombardi to discharge RSL's indebtedness to Credit Agricole Indosuez ("CAI"). It will be recalled that Mr Symes has claimed that the funds were a gift to him from a lady called Hersa Hamad Aisa Fdala, whom the Claimants have been wholly unable to trace, and who is, they submit, a mere figment of Mr Symes' imagination. As will be explained below the true source of those funds was in fact the collection of art deco furniture by Eileen Gray ("the Eileen Gray Collection") owned by the Michailidis/Papadimitriou family and stolen by Mr Symes in March 2000, the proceeds subsequently having been laundered through two Liechtenstein trusts or companies and a newly formed BVI company (Lombardi) with a bank account in Gibraltar. The substance of this aspect of the matter lies in Mr Symes' failure to honour Undertaking 8 by revealing the true source of Lombardi's funds, but the reality is that it also goes right back to the commencement of these proceedings and arises in the context of –
- Mr Symes' failure to provide details of what happened to the proceeds of sale of the furniture as required by para 14(b) of the Order of Lloyd J. of 27th February 2001,
- The untruthful statement in his 2nd and 5th Affidavits when he said that the Eileen Gray Collection had been sold for just $4.4m, and
- The similarly untruthful statements in his 13th and 20th Affidavits when he said that the monies used to discharge RSL's debt to Credit Agricole had come from Ms Hersa Hamad Aisa Fdala.
(2) In the Summer and Autumn of 2003 Mr Symes sold to Sheikh Al-Thani for $3 million a statue of the Pharaoh Akhenaten ("the Akhenaten") despite that statue being –
- The property of RSL and a Relevant Chattel, and
- The sale thus being in breach of the Interlocutory Regime first put in place by Hart J on 7th March 2001, and still in force.
(3) Again in breach of the Interlocutory Regime it had become apparent prior to August 2003 that Mr Symes had engaged in wholesale breaches of the Interlocutory Regime by failing to disclose the existence of a number of objects in New York and by subsequently moving them from one location to another."
AND IT APPEARING accordingly to the satisfaction of the Court that the 1st Defendant –
a) has been guilty of contempt of Court in that in his 8th, 13th, 20th and 25th Affidavits he made false statements which he verified as being true that the true source of funds used to discharge a facility granted to the 2nd Defendant [RSL] by Credit Agricole Indosuez was money provided by way of gift by a lady whom he identified as one Hersa Hamad Aisa Fdala without having an honest belief in the truth of those statements.
b) has been guilty of contempt of Court in that he failed to reveal the true source of the funds referred to at sub-paragraph (a) above as required by undertaking 8 of the undertakings given to the Court on his behalf on 22 May 2003 and set out in the schedule to the Order of that date and is accordingly in breach of the condition pursuant to which the sentence of one year's imprisonment imposed on that date for the further contempt of Court referred to in that Order was suspended, and
c) has been guilty of a further contempt of Court in causing or permitting the sale of a statue of the Pharaoh Akhenaten belonging to the 2nd Defendant by a contract in writing dated 14th August 2003 in breach of the 1st Order of Mr Justice Hart of 24th July 2002.
IT IS ORDERED THAT –
1. In respect of the contempt of Court recited at sub-paragraph (a) above there be no order (having regard to the sentence of imprisonment imposed below for breach of the undertaking there referred to).
2. For breach of the undertaking recited at sub-paragraph (b) above the 1st Defendant be committed to one of Her Majesty's Prisons for a period of nine months.
3. Without prejudice to any application that the Claimants might hereafter make in regard to any alleged failure on the part of the 1st Defendant to comply with any of the other undertakings given to the Court on 22nd May 2003, there be no Order lifting the suspension of the sentence of imprisonment imposed by that Order.
4. In respect of the contempt of Court recited at sub-paragraph (c) above the 1st Defendant be committed to one of Her Majesty's Prisons for a period of fifteen months.
5. The said sentences of imprisonment referred to at paragraphs 2 and 4 above do run consecutively.
The appellant was ordered to pay the costs of the application on an indemnity basis. An interim payment on account in the sum of £1,000,000 was ordered.
"The undertaking and the confession affidavit was therefore a culmination of years of deliberate lies by Mr Symes and a calculated cause of action on his part designed to conceal that he had deliberately taken the proceeds, used them for his own purpose and concealed matters. This is reinforced by his concealing of the Lombardi facility and his persistence in the correctness of the story right up until last Friday. He only confessed after he failed to obtain an adjournment on Thursday. When he addressed me on Thursday he was apparently having typed a confession as set out in the witness statement. He therefore on Thursday cynically maintained the appearance of not lying in the hope of obtaining an adjournment and only came clean when the adjournment was refused. This I regard as a serious and cynical contempt of court."
At paragraph 50, the judge stated:
"I am not impressed by Mr Symes' attempts to suggest that he is confused and muddled and does not know what is going on. The admitted contempts show calculated, cynical and well understood acts of deception. They are not the actions of a man who is muddled and confused. They were, as I say, deliberately orchestrated frauds perpetrated against the claimants, flouting of the orders of the court, and calculated solely to achieve financial benefits for Mr Symes."
"In addition to of course the serious contempt that Mr Symes holds for court orders, an assets worth at least $3 million has been removed from the available realisations of RSL's assets. So by two sales [the other was the Granodiorite statue] Mr Symes has caused the removal of in excess of $6 million from the claimants and all the other companies' creditors."
"51. Mr Symes is in contempt in that he has broken undertaking 8 that he gave to me on 22nd May. Second he is in contempt and in breach of the interlocutory regime imposed by the order of Hart J on 24th July 2002 by the sale of the Akhenaten statue. Third, he has broken the conditions upon which the order of imprisonment was suspended, namely he has failed to comply with undertaking 8. The two contempts are serious. The courts made orders to protect claimants and in those orders, like the interlocutory regime, they provided checks and balances to enable a claimant's legitimate right to preserve assets not to be used as a method of oppression. The interlocutory regime enabled Mr Symes to carry on the business and to sell objects during that business provided he sold them openly and for a proper price. Mr Symes chose deliberately on these two occasions at least not to do so.
52. He has therefore treated the orders as some things which he can ignore, despite being thrown a lifeline by the order of 22nd May in the sense that he was not sent to prison immediately but merely gave undertakings as to future good behaviour. He then chose to embark upon a further course of action within days of breaking that undertaking by providing a repetition of a false story and a matter of weeks later participating in a sale, possibly even during the course of the hearing in May, which was going to be a breach of the interlocutory regime of precisely the same type that he was then currently being sentenced for. The only time he has expressed any remorse is in his latest witness statement which, as I have said, arrived only after he failed to obtain an adjournment maintaining the same stance the day before. In addition, he has led the claimants on a very expensive merry dance.
53. It is important that the courts provide effective sanctions for breaches of interlocutory regimes like this. Interlocutory regimes like this only work if people comply with them. They are now of a sophisticated nature so that they cannot be used as oppressively as they were when they first came to be used by the courts but if people choose deliberately to ignore them, they can only expect serious consequences to be visited upon them.
54. I regard the Akhenaten sale as the more serious of the two breaches. I accordingly sentence Mr Symes to a period of 15 months imprisonment for breach of that interlocutory regime by that sale. The undertaking breach is also serious but not quite as serious as the deliberate sale of the Akhenaten. For that lesser breach I sentence Mr Symes to a period of imprisonment of nine months to be served consecutively to the period of 15 months making two years in total.
55. As I said earlier in this judgment, I indicated yesterday that I was going to implement the suspended sentence consecutively. I cannot do that. There has been a breach of the conditions upon which the suspended sentence was suspended. To activate it now would only benefit Mr Symes because it would then merge in the two year sentence and would mean that Mr Symes would be lifted from any further continuing obligations in respect of those undertakings and conditions.
56. Given the fact that it is clear that the claimants do not accept he has yet complied with all of those conditions I do not think it is appropriate that Mr Symes should obtain the benefit of a wiping out of that suspended sentence regime in this way. I have accordingly decided to make no order lifting the suspension of the sentence of imprisonment and the regime of my order of 22nd May 2003 remains in place. I draw the attention of Mr Symes expressly to the fact that I could have lifted it today and that there are matters that are still outstanding. It follows that if the claimants wish further to bring that to the court at a future date and establish there are further breaches, then they will be in a position so to do. If that is correct then it is inevitable that that suspension will then be lifted. "
General mitigation
The application to adjourn
The Slade Proceedings
"(a) Information relating to a statue of Akhenaten including its location and the proceeds of sale if it has been sold.
(b) The identity of the persons who have found or delivered or disclosed three caches of objects and their former or current whereabouts
.….
(d) Any other information relating to any other Relevant Chattels as defined in the 1st Order of 24th July 2002 made in the action Phillips and Others v Symes and Others HC0100810."
"In those circumstances… the court will wish to consider whether it is appropriate to override privilege… and order me to disclose information that might be used against Mr Symes on an application to commit him for contempt. Mr Symes might point out that if he is not to be compelled to give evidence on such an application it is equally inappropriate to order his former solicitor to disclose Mr Symes' instructions, which might then be used against Mr Symes on an application to commit for contempt. Mr Symes might contend that to do so would at least partially undermine the order of the Court of Appeal [confirming the appellant's privilege against self incrimination]."
"Now in the present case, having seen the information, I am quite satisfied that the claimants have made out a strong case that Mr Symes has, by fraudulent conduct, sought to conceal the whereabouts of assets which are partnership assets. It is also clear that Bracher Rawlins and Mr Slade in particular might well have in their possession information that might assist the claimants in their legitimate recovery of assets which have been hidden away by Mr Symes. It is therefore right as a matter of principle in my judgment that the case is made out for an Order of the type sought by the claimants."
The judge then referred to the claimants' acceptance that documents disclosed "should be redacted so that no reference is made to any advice sought or any advice given". He referred to the prima facie case that the appellant had fraudulently concealed assets so that there was no "question of the privilege being capable of being invoked by Mr Symes as an answer to the claimants' present application." The claimants undertook not to use information and documents disclosed for the purposes of any application for committal, without first having the permission of the court.
Norwich Pharmacal
"It was in those circumstances that the [claimants] brought Norwich Pharmacal proceedings against Mr Slade. The object of those proceedings was to obtain from Mr Slade, as a person innocently involved in "wrongdoing", information as to the whereabouts of the Akhenaten and/or the proceeds of its sales. An Order requiring such disclosure was duly made at an inter partes hearing at which the learned Judge's attention was drawn expressly to the issue of potentially privileged material being disclosed, and to an authority that indicated that privilege was not maintainable in these circumstances." [The parties referred to are the claimants and Mr Slade]
"… there is a prima facie case that Mr Symes has fraudulently concealed assets, the whereabouts of which he ought to have located before. There is therefore to my mind no question of the privilege being capable, of being invoked by Mr Symes as an answer to the Claimants' present application."
"No one doubts that the claim for professional privilege does not apply to documents which have been brought into existence in the course of or in furtherance of a fraud to which both solicitor and clients are parties. To consult a solicitor about an intended course of action, in order to be advised whether it is legitimate or not, or to lay before a solicitor the facts relating to a charge of fraud, actually made or anticipated, and make a clean breast of it with the object of being advised about the best way in which to meet it, is a very different thing from consulting him in order to learn how to plan, execute, or stifle an actual fraud."
Viscount Finlay stated, at page 604:
"But it is not enough to allege fraud. If the communications to the solicitor were for the purpose of obtaining professional advice, there must be, in order to get rid of privilege, not merely an allegation that they were made for the purpose of getting advice for the commission of a fraud, but there must be something to give colour to the charge. This statement must be made in clear and definite terms, and there must further be some prima facie evidence that it has some foundation in fact. It is with reference to cases of this kind that it can be correctly said that the Court has a discretion as to ordering inspection of documents. It is obvious that it would be absurd to say that the privilege could be got rid of merely by making a charge of fraud."
The interview of the appellant
"This is an entirely voluntary exercise and the claimants will be entitled to take notes of it. They cannot use it at any committal proceedings and it shall not be adduceable in evidence on the resumed hearing on Thursday because the only non-committal application outstanding is really paragraph 8 and that is already admitted.
If you co-operate, the fact that you have co-operated is something that the court will take into account in any sentence it decides to impose by reason of the breaches. I am not going to get into an argument about whether or not there has been co-operation. In other words if everybody meets and we just have a big row then I will take the view that it is neutral, it does not count against you and does not count for you, but if there is genuine co-operation and the claimants perceive it as such then that will be taken into account. But as I have said, I am not going to have an argument. If you say you co-operated and they say you have not I am not going to get involved in a big argument about that."
"What I said on Tuesday was that I would not entertain any argument about whether or not he had complied. The position as I see it is that your clients have not received, I suspect from your submissions, details of any further assets from Mr Symes. Therefore, there are not mitigating circumstances to suggest that he has revealed other matters as a result of that meeting. Is that a fair summary?"
The judge's indication
"On the admissions it is difficult to see how the sentence would be less than two years in addition to the lifting of the suspension making three years in total. Is anything to be gained from going through more matters at this stage when it might be thought that it is always open to somebody sentenced for contempt to seek to have the contempt purged?
Given those admissions, if Mr Symes goes to prison for that period of time he might well think about his position in other aspects of the case a little more seriously than he apparently does at the moment."
and added:
"That is why I am reluctant, at this stage, for the reasons that you set out in the skeleton argument to deal with any other further contempt so that Mr Symes can simply say I will do 18 months time and that is the end of it because it is not. I see no point in spending the court's time going through dealing with other matters when they can be adjourned and Mr Symes can consider his position in a more secure environment."
"What I am going to do is I am going to deliver judgment at 10 o'clock tomorrow. The judgment will explain my reasons why I think it is appropriate that tomorrow you go to prison for a total of three years and I will set these out in my judgment tomorrow. I am doing it tomorrow because I want you to have an opportunity to organise your affairs, bearing in mind that I am going to send you to prison tomorrow for that period of time. I am also, as I have said to Mr Steinfeld, adjourning the other contempt application in relation to the movement of chattels. The reason why I am doing that is because I do not believe you, Mr Symes, in respect of those matters, and those matters will, if appropriate, be revisited."
Matters left unresolved
"… It emerges clearly from the judgments of Lord Denning MR and Russell LJ with which Winn LJ agreed that the court is not obliged to activate a suspended sentence upon mere proof of breach of the suspensory condition. The judge has a discretion, taking into account both the past and the current situation and the gravity of the breach, either to activate the original sentence or to impose a reduced sentence or a fine or not to punish at all. In other words there is nothing automatic about the activation of a suspended sentence, and it involves an exercise of judicial judgment on the occasion when the issue of activation arises."
"Mr Munby, in the course of his submissions, has drawn attention to a number of situations which could give rise to argument and difficulty. For example, he has indicated that a judge might sentence for one contempt in the morning and another in the afternoon, or for one contempt one day and another contempt the next day in the belief that by doing so he would not be imposing the sentences on one occasion. I could imagine circumstances in which this court would have little hesitation in holding that there had been a manipulation of the timetable such as to amount to an abuse of process. On the other hand, where, in the ordinary course, different contempts came before the court on different occasions and without any manipulation of the timetable it may be that cumulative sentences of more than two years could be justified. But it is, I think, clear as I have suggested, that a contemnor must not, on any occasion, leave the court subject to a sentence of more than two years. If in doubt as to whether an occasion is to be treated as a single occasion or more than a single occasion it is incumbent on any judge in such a position to bear in mind the statutory provisions and the obvious object of the statutory provision and bear in mind also the duty of fairness which is owed to any contemnor."
Conclusions
Lord Justice Longmore:
(1) the judge ought not to have heard both the proceedings against Mr Slade and continued to hear the proceedings against the appellant. It is occasionally necessary, after litigation against one defendant has begun, for proceedings to be brought against another defendant who has to be restrained from informing the first defendant of the existence of such second proceedings. If, in the course of such second proceedings, a judge learns something detrimental to the interests of the first defendant in his absence, it is (to say the least) a delicate question whether it can be appropriate for that same judge to continue hearing the first proceedings. This is a matter to which both claimants (who have instigated both sets of proceedings) and the judge must consider most carefully. There is no indication that the difficulty received the careful consideration which, in this case, it deserved;
(2) the judge ought not to have encouraged the appellant to have participated in the meeting of 17th January 2005, in the course of the hearing, and then to have decided to have no regard to what happened at the meeting. I have no doubt that, in giving such encouragement, the judge was only trying to be helpful, but justice required that that assistance should have been followed up by an assessment of the degree to which (if at all) co-operation from the appellant was forthcoming.