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||Neutral Citation Number:  EWCA Civ 1053
||Case No: B6/2018/0644, 0651, 0672 & 0673
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
BIRMINGHAM DISTRICT REGISTRY
SITTING AT BRISTOL (HHJ WILDBLOOD QC)
||Royal Courts of Justice
Strand, London, WC2A 2LL
||11 May 2018
B e f o r e :
LORD JUSTICE KITCHIN
LORD JUSTICE MOYLAN
LADY JUSTICE ASPLIN
|| JOHN RALPH HART
||- and -
Mr Grant Armstrong (instructed by The Law Practice Solicitors) for the Appellant
Mr Peter Mitchell (instructed by Irwin Mitchell Solicitors) for the Respondent
Hearing date : 18 April 2018
HTML VERSION OF JUDGMENT APPROVED
Crown Copyright ©
Lord Justice Moylan:
- The husband, as I will call the Appellant, who is now aged 83, appeals from a committal order made by His Honour Judge Wildblood QC on 15th March 2018 ("the March 2018 order"). This aspect of his appeal does not require permission.
- The judge found that the husband was in breach of (i) an undertaking he had given on 25th June 2015 which formed part of a final financial remedy order ("the undertaking"); (ii) a consent order made on 24th February 2016 by which the husband was required to provide information by way of an Affidavit and to give the wife specified documents ("the February order"); and (iii) an order made on 29th July 2016 which required the husband to provide specified information and documents to the wife ("the July order").
- The judge sentenced the husband to a term of imprisonment totalling 14 months in respect of the breaches of the undertaking; 14 months in respect of the breaches of the order of the February order; and 9 months in respect of the breaches of the order of the July order, all of which were ordered to run concurrently. The terms of 14 months comprised 9 months as a "punitive element" and 5 months as an "additional coercive element". The committal order has been stayed pending determination of this appeal.
- The husband also seeks an extension of time for appealing and permission to appeal from the undertaking and from the two orders referred to above. The husband seeks to appeal in respect of these latter matters because the committal order was based on breaches of each of them.
- The grounds of appeal can be summarised as follows:
i) In respect of the undertaking:
a) It was outside the court's powers under section 24 of the Matrimonial Causes Act 1973 ("the 1973 Act") and/or the court was functus officio;
b) It was too vague and imprecise to found an application for committal;
c) The husband was not in breach of its terms.
ii) In respect of each of the February and the July orders:
a) The court had no jurisdiction to make these orders because they were outside the court's powers and/or the court was functus officio;
b) The husband was not in breach of the orders in that he had complied or had complied sufficiently with each of them.
iii) In respect of the sentence, that it was excessive.
- In his skeleton argument for the appeal hearing Mr Mitchell on behalf of the wife conceded that the appeal from the committal order should be allowed to the extent that the order and the sentence were founded on breaches of the undertaking. As explained by Mr Mitchell this was a concession made for pragmatic reasons. The husband had not sought to challenge the form of the undertaking until the issue was raised in Mr Armstrong's closing submissions to the judge at the conclusion of the committal hearing. It was then, for the "first time" (to quote the judgment), argued that the undertaking was too wide and too vague to found an application for committal. This argument was rejected by the judge. However, Mr Mitchell acknowledged the potential difficulties and rather than spend time at the appeal hearing addressing this issue he conceded the point. In his submission, the breaches found by the judge in respect of the undertaking did not add materially to the other breaches. Further, the sentence imposed was concurrent so did not add materially to the length of the term.
- As a result of this concession, the committal order made in respect of the breaches of the undertaking will be set aside.
- The financial remedy proceedings have been continuing since November 2011. This is an extraordinary length of time. On 31st August 2017, when dismissing the wife's appeal from the substantive financial remedy order of 25th June 2015 ("the June 2015 order"), I said, (para 11): "It is an unhappy observation to note that the parties have now been engaged in litigation for nearly 6 years. As at the date of the hearing below they had spent in excess of £500,000 on legal costs". It is now almost a year since that judgment. The parties will have spent very substantial further sums. This is the antithesis of expeditious justice.
- Only a very brief summary is required because the factual background is set out in this court's judgment of 31st August 2017: Hart v Hart  EWCA Civ 1306,  2 WLR 509. By that judgment, the wife's appeal from the June 2015 order was dismissed. The effect of the order was to divide the parties' assets so that the wife had assets of approximately £3.5 million and the husband £5.9 million.
- The June 2015 order contained a number of substantive provisions the most significant of which was the transfer to the wife of the husband's (100%) shareholding in a company called Drakestown Properties Ltd ("the Company") valued at £1.6 million. The transfer of the shares was to be, and was, effected by 23rd July 2015. The Company owns two properties which together have 80 industrial units. Its principal activity is the rental of those units.
- As part of the June 2015 order the husband gave a number of undertakings including the undertaking that he would:
"take all steps necessary (including, for the avoidance of doubt, the provision of information and documentation and the notification of third parties of the cessation of his interest in Drakestown Properties Ltd) to ensure that the (wife) is forthwith hereafter able to conduct the efficient and effective management of Drakestown Properties Ltd and its assets".
- Since the June 2015 order, the parties have been engaged in continuing proceedings which the wife has contended were required to procure the effective implementation of the share transfer. The shares were transferred on the basis that the wife would continue to operate the business.
- The wife brought proceedings in the Chancery Division against the husband and others to obtain possession of the Company's premises. On 30th October 2015 an order was made that vacant possession be provided. The order included an undertaking by the husband to deliver up to the Company by 11th November 2015 all of its physical and electronic documents and records in his possession or under his control.
- When possession of the premises was given on 11th November 2015 the only documents which were left were two bank statements and "a collection of current licences and leases relating to the units" (sentencing judgment para 6). HHJ Wildblood found that the husband had caused the offices "to be stripped out of records and documentation save" save for the above (committal judgment para 35).
- The wife first applied for the husband's committal on 1st October 2015 based on alleged breaches of the undertaking. At the first hearing on 24th February 2016, a list was produced on behalf of the wife of the information and documents which she sought in respect of the Company and which it was contended she required in order to be able to manage its affairs. "After discussion" (committal judgment para 39) the husband (and his sister) agreed to provide what had been requested and the committal application was adjourned.
- The February order, made by consent, provided, by paragraph 4(i) to 4(xxvii), that by 31st March 2016 the husband must file and serve an affidavit "providing full details of" a range of information relating to the company's "Records", including where they were kept, and how it managed its affairs. The "Records" were defined in the order as "the Accounting records, the Board records, the Correspondence and those documents and records referred to" specifically in the order. This provision was subject to the caveat that if it was the husband's case "that a particular matter is beyond (his) knowledge, (he) must say so and identify any person or persons who, in his opinion, holds the required information".
- The February order, by paragraph 5, also required the husband, by 31st March 2016, to "deliver up to the (wife) such of the Records as are currently in (his) possession, custody or control".
- The husband's affidavit served pursuant to the order was sworn on 11th March 2016.
- On 29th July 2016 the committal application was again adjourned. The July order contained a recital that the husband had "confirmed that the documents set out in paragraph 6 were available and could be provided". Paragraph 6 of the order required the husband to provide to the wife a small number of identified documents and with some specified information by 2nd August 2016. Paragraph 8 required the husband to provide the wife with a set of keys for a property in Florida. The order also provided that the wife must provide particulars of the breaches on which she relied by 16th September 2016.
- On 15th September 2016 the wife issued her second committal application which included detailed particulars of the alleged breaches of the orders and the undertaking. It was this application which was finally determined by the March 2018 order as the wife did not pursue her first application.
- The committal hearing was not listed until 6th/7th March 2017. It did not progress very far at that hearing. At the request of counsel then instructed on behalf of the husband the hearing did not start until 2.00pm on the first day. It was then adjourned on the second day because the husband had failed "adequately" to instruct her.
- The next hearing took place on 27th/28th March 2017. It proved impossible to conclude the case and it was again adjourned. It was due to continue in July 2017 but was further adjourned in part, I understand, to accommodate the instruction of Mr Armstrong. The hearing did not recommence until 22nd/23rd February 2018. At the conclusion of that hearing, the judge gave judgment dealing with his findings in respect of the alleged breaches. He adjourned sentencing to a hearing which took place on 14th/15th March 2018.
- Before turning to deal with the committal judgment, I cannot but observe that the above history of the progress of the committal application must be regarded as exceptional. This is not to criticise what happened in this case because no party has sought to raise the issue and because the reasons for the delay are varied and understandable. However, in addition to the general obligation imposed by the overriding objective, as a matter of principle the nature of an application for committal requires that it should be determined expeditiously.
- The judge had a considerable volume of written material and also heard oral evidence from a number of witnesses including the wife, the husband (who was under no obligation to give evidence) and an accountant on behalf of the husband. In a careful and very detailed judgment the judge set out the legal framework including that the burden of proving the alleged breaches was on the wife and that they must be proved to the criminal standard. He also set out that he had to determine "precisely" what the orders required the husband to do; whether the husband had done what was required; and, if he had not, whether it was within his power to do it.
- The husband's case in response to the committal application was, broadly stated, that he had complied with his obligations under the orders and, in so far as he had not provided specific information and/or documents, he was unable to do so.
- The judge set out his findings in a table. He found that the husband was in breach of a number of the provisions of the February and the July orders. He found that there were breaches (i) of 6 of the provisions of paragraph 4 of the February 2016 order; (ii) of paragraph 5 of the February 2016 order; and (iii) of paragraphs 6 and 8 of the July 2016 order.
- The judge found that the husband's affidavit of 11th March 2016 was "patently inadequate". The failure to provide information as required by paragraph 4 of the February order covered a range of matters including the means by which the occupiers of the units paid the sums due to the Company; a complete list of the Records which were in his possession, custody or control as at 22nd July 2015 and the current location of those Records. The breaches of paragraph 5 included the failure to provide a complete set of bank statements and of accounting records. The breaches on respect of the July 2016 included the failure to provide some of the specified documents.
- The judge noted that:
"Every effort has been made by Mrs Hart, her legal team and by me to avoid this case reaching this crisis point. There have been a number of hearings within these committal proceedings (which I will describe later) and, on each occasion, it has been obvious that Mr Hart has not produced information that he should have produced in compliance with the undertaking that he gave and, later, the orders that I have made. On each occasion that the case has returned before me orders have been made with the intention of ensuring that Mr Hart's default is remedied. That has all been to no avail. Nobody wishes to see an 83-year-old man … facing a committal application. However, despite frequent court hearings, orders and the clearest possible warnings … Mr Hart has not done what he was ordered to do or what he undertook to do. Enough is now enough. As I will explain he is now in very serious and sustained contempt of court."
- The judge found that the husband was "in very firm control of his financial empire … (and) knows every aspect of his businesses and how they ran". The husband "bitterly resents" the financial remedy order. As referred to above, the judge also found that when the husband gave up possession of the Company's premises he "caused the office to be stripped of essential company records". He knew that the wife "needed that information" which he "was ordered to give". "He has steadfastly refused to give (the wife) the information that she needs".
- The judge reached extremely strong conclusions about the husband's conduct as follows:
"(the husband) has done his utmost to prejudice Mrs Hart and to put her under pressure by failing to comply with his undertaking and with the subsequent enforcement orders that I have made. Further, he has simply not engaged properly in these extremely serious committal proceedings …"
"I am satisfied so that I am sure that Mrs Hart has proved with ease that Mr Hart has acted in contemptuous disregard of the undertaking that is recorded in the substantive order and of the orders dated 24th February 2016 and 29th July 2016 as set out in the tables above. I have no doubt at all that Mr Hart has had it in his power to produce the information that he has been required to give and to remedy the contempt that he has committed. He has chosen not to do so. It is not for me to try to guess where the records are now."
- The judge concluded his committal judgment by setting out his assessment of the "level of contempt":
"(i) Mr Hart's contempt was persistent and continued from the time of his undertaking to the time of the committal application. Since that application he has only remedied his contempt in part (as shown in the tables).
(ii) During the course of his oral evidence in March 2017 and February 2018 he gave untruthful evidence on many issues in an attempt to conceal his contempt.
(iii) He has shown no remorse about his failure to comply with his undertaking or with the two enforcement orders.
(iv) His contempt has been motivated by a wish to demonstrate his resentment against Mrs Hart about the financial orders that were made in these proceedings in her favour. He has sought, deliberately, to obstruct her in the efficient running of the company.
(v) His contemptuous actions have brought very significant pressure and expense upon Mrs Hart, as he intended they should."
- The sentencing judgment is also very detailed running to over nine pages.
- The judge dealt with a submission made on behalf of the husband that a letter written by the wife's solicitors since the committal judgment showed that the wife's motivation in bringing the contempt proceedings had been to "secure further financial advantage only". The letter had contained an offer made by the wife to compromise the committal application and an application the wife had made to set aside the June 2015 order. As set out in the judgment, the offer "would have conferred significantly greater financial benefits on the wife than those" she obtained under that order. The judge rejected this submission because he was satisfied that the wife had been motivated by her need for the information which she had been seeking.
- During the course of his submissions, Mr Armstrong invited the court to deal with the propriety of this letter. I do not propose to do so. First, the judge rejected the submission that the wife had some ulterior motive for making the committal application. Nothing Mr Armstrong said provides any reason to go behind the judge's conclusion. Secondly, Mr Mitchell's submissions on this point were sufficient to show that the letter encompasses a far broader canvas than the committal application and one which we are not in a position properly to address.
- The judge set out what he considered to be aggravating and mitigating factors by reference to the factors in Crystal Mews Ltd v Metterick  EWHC 3087 (Ch). I quote this part of the judgment in full, starting with the judge's assessment of the aggravating factors:
"(i) Mrs Hart has been seriously prejudiced by Mr Hart's actions.
(ii) Mr Hart has not acted under pressure. He acted out of a wish to put Mrs Hart under pressure due to his dissatisfaction with the outcome of the substantive proceedings.
(iii) His breaches were deliberate and sustained.
(iv) The breaches lie at a high level of culpability. They are persistent, damaging, motivated, continuing in part and bear no remorse at all from him. Those are each serious aggravating factors in my judgment. In the language of section 143 of The Criminal Justice Act 2003, his contempt has caused deliberate financial and emotional harm to Mrs Hart.
(v) He is solely responsible for the breaches that he has committed. Whether his sister and Halesowen Estates Ltd share that culpability, and if so to what extent, will have to be determined on another occasion. Any guilt that they might bear does not detract from Mr Hart's.
(vi) He has not co-operated in these enforcement proceedings and does not appear to recognise the seriousness of what he has done.
Balanced against those aggravating factors I take into account the following mitigating factors:
(i) Mr Hart is a man who has no criminal convictions recorded against him. In criminal proceedings he would be described as a man of good character.
(ii) A prison sentence will have a very marked effect on him.
(iii) Mr Hart is now aged 83 and nobody wants to see a man of that age going to prison unless it is genuinely necessary.
(iv) Mr Hart has been a successful businessman and has contributed to society through the businesses that he has run and the employment that he has provided for others. I also take into account the contribution to society that he has made on a much wider scale as set out in the letters at pages p370-374 of the bundle that was handed to me in court, yesterday.
(v) The effect of these proceedings is that Mr Hart has not only lost some of the money which he holds so dear, but he has also experienced the loss of his relationship with his former wife and children. From the upbeat, proud and canny business man that I first saw three years ago, he is now an isolated and sad man seemingly unable to enjoy for his remaining years the millions of pounds that he still owns.
(vi) He also suffers from ill-health, including a requirement for monitoring of his prostate cancer. I have taken into account the contents of the letter of 8th March 2018 that is written by Mr Alan Doherty.
(vii) Since the hearing in February he has produced bank statements that appear to make good the deficiencies within the banking information of which I spoke in paragraphs 72 and 73 of the February judgment (the unexplained £150,000). That information was provided on the first morning of this sentencing hearing without any forewarning to me in the second lever arch file of documents. Mr Mitchell had no opportunity to check it properly before it was handed in but I could not delay the sentencing because of it. I therefore take it that the information that has now been provided does fill this particular gap in the documentation provided by Mr Hart. However: a) that does not detract from the fact that the information should have been provided far earlier; b) the finding that I made was not there was £150,000 elsewhere in an account – the finding was that the documentation did not explain what had become of this sum of money and c) this issue was raised in the hearing in March 2017 and it has taken a year since then for the current documentation to be provided. For the purposes of this exercise I accept that Mr Hart was not himself responsible for the original redaction of the information but it did remain his responsibility to comply with the court's orders and his own undertaking. Further, on the overall scale of Mr Hart's contempt, I regard this as a factor of limited significance where there have been multifaceted breaches in relation to so much other information and documentation. It is a small amount of water in a very large lake.
(viii) He has agreed to pay the substantial costs of Mrs Hart in these committal proceedings. Those costs are said by Mrs Hart to be about £100,000.
- The judge took into account sentencing policy that, "if at all possible", a sentence of imprisonment should not be imposed and that any term should be as short as possible.
- The judge decided that the acts of contempt were so serious that only a sentence of imprisonment was justified. The husband had been given "so much opportunity" to remedy his breaches that there was "no justification" for suspending any part of the sentence. The sentence the judge imposed reflected punishment for the husband's past breaches and a "coercive element" to seek to procure the husband's future compliance with the February order. The judge set out the information and documents which remained outstanding. As referred to above, in respect of the breaches of the February order the judge imposed a sentence of 9 months as the punitive element and 6 months as the coercive element. In respect of the breaches of the July order he imposed a term of 9 months only as a punitive element.
- Mr Armstrong's submissions can be divided into three parts. First, he submitted that the undertaking and the February and July orders were outside the scope of the court's powers. Because of the absence of jurisdiction, the time for appealing should be extended and the husband should be given permission to appeal. Secondly, he submitted that the judge was wrong to find that the husband was in breach of the orders (and the undertaking) because he had complied with the orders either entirely or very substantially. Thirdly, the judge should not have imposed a sentence of imprisonment at all let alone one of 14 months.
- As to the first aspect of his case, Mr Armstrong made the following submissions.
- The court's powers concluded with the making of the June 2015 order or with the transfer of the shares in the Company on 23rd July 2015. Following the making of the order and the transfer of the shares the court was functus officio and had no power to make the February or the July order either under the Matrimonial Causes Act 1973 or the Senior Courts Act 1981 or otherwise. The court could also not derive any power to make the orders from the undertaking.
- Further, the relevant documents were either the property of the Company and/or were not within the husband's control. The court had no power to order the husband to provide the wife with documents which were the property of the Company. The Company was not a party to the proceedings and the court had no jurisdiction in respect of its property. In respect of some of the documents they were not in the husband's possession or within his control.
- A further additional element to this part of the husband's case was that the judge had wrongly made orders which dealt with inter-company rights and obligations namely as between the Company and another company controlled by the husband called Halesowen Estates Ltd.
- Based on the above, Mr Armstrong submitted that, because the court did not have jurisdiction in respect of the undertaking or the orders, the parties could not, by acquiescence or otherwise, vest it with jurisdiction. Once this has been demonstrated the court is bound to set them aside because they are nullities.
- In support of these propositions, Mr Armstrong referred to a number of authorities: Westminster Bank Ltd v Edwards  AC 529; Heyting v Dupont  1 WLR 1192; Petrodel Resources Ltd v Prest  2 AC 415; In re H (Children)(Care Proceedings: Appeals out of Time)  1 WLR 5085; and Goyal v Goyal  4 WLR 140.
- In support of the second part of his case, namely that the judge's findings were flawed, Mr Armstrong took the court to a number of documents which had been produced by the husband and to passages in the transcripts of the hearings before the judge which, he submitted, demonstrated that the judge's findings were unsustainable because the husband had complied with his obligations. Mr Armstrong pointed to the judge's reference to his having 12 files of documents as showing the extent to which the husband had complied with his obligations. He also addressed specific issues dealt with by the judge including historic leases and licences and rental invoices; and rates and subsidence. In summary, he submitted that the judge's findings were not, indeed could not, be justified by the evidence.
- Additionally in respect of the findings, Mr Armstrong submitted that the husband had been unable to provide some of the documents because they were held by another company which was not within his control.
- In respect of the sentence of imprisonment, Mr Armstrong submitted that some of the matters relied on by the judge to justify imposing a sentence of imprisonment and the length of the term were wrong. The judge's assessment was also flawed in that he gave too much weight to some matters and too little to others.
- Mr Armstrong developed these submissions as follows. The judge had been wrong to conclude that the wife had been "seriously prejudiced". The wife's ability to manage the Company had not been impeded. The husband's breaches were not "deliberate and sustained". The husband may have been stupid or negligent but his behaviour had not been contumelious. For example, the Company's accountants had met accountants instructed by the wife and had offered to provide additional information and documents. The husband had provided a very substantial number of documents.
- Further, he submitted that the judge had not given sufficient weight to the husband's medical condition or his age or that he would be paying the wife's costs in the region of £100,000. Mr Armstrong also challenged the judge's imposition of a "coercive element" in particular because the judge was not entitled to conclude that the husband could provide the documents said to be outstanding.
- Mr Mitchell repeated at the start of his submissions that his client did not want the husband to go to prison. She had felt compelled to bring the committal application because of his conduct. She had now been involved in these proceedings for 7 years and could see no alternative route to procuring the implementation of the June 2015 order. Mr Mitchell acknowledged, as he did before the judge, that sentencing is a matter for the court. However, he submitted that the judge imposed a sentence which he has fully explained and which was one which he was entitled to impose.
- Mr Mitchell submitted that the time for appealing from the February and July orders (or from the undertaking) should not be extended. He had no recollection of it being submitted at any time during the hearings before the judge that there had been no jurisdiction to make them. There was no justification for the husband being granted relief from sanctions having regard to the three stage test in Denton v White  1 WLR 3926. The delay was serious and significant; no explanation had been given for the delay in raising this issue or seeking to appeal; and the circumstances of the case pointed strongly against extending time.
- Next he submitted that the court had power to accept the husband's undertaking. He referred to Jenkins v Livesey  AC 424 in which Lord Brandon of Oakbrook said (at p. 444H) when dealing with certain provisions in a financial order:
"There is nothing in sections 23 or 24 of the Act of 1973 which directly empowers the court to make orders of these kinds. That being so, the proper procedure for incorporating the obligations concerned into a consent order is by formulating them as undertakings given to the court. Such undertakings are, needless to say, enforceable as effectively as direct orders."
- As to the orders, Mr Mitchell submitted that the court had power to make them, both as to the provision of information and as to the delivery up of documents, under the inherent jurisdiction (because the judge was sitting in the High Court), and/or under section 37 of the Senior Courts Act 1981 ("the 1981 Act") and/or under r.20.2 of the Family Procedure Rules 2010 ("the FPR 2010"). Mr Mitchell also referred to section 31E of the Matrimonial and Family Proceedings Act 1984 which confers on the family court the power to make "any order … which could be made by the High Court if the proceedings were in the High Court".
- Mr Mitchell submitted that the orders were required to procure the effective transfer of the shares in the Company to the wife. The shares were transferred with the intention that the wife would continue to operate the business, for which purpose she needed the records of the Company. The orders were ancillary to and supportive of the substantive financial remedy order and therefore within the court's powers under section 37 of the 1981 Act: Goyal v Goyal (para 41). He submitted that they were also within r.20.2 of the FPR 2010. In the circumstances of this case, where the husband had acted unconscionably in keeping the documents and the wife was entitled to them, there was no need to join the Company or to require the wife to bring separate proceedings.
- On the issue of whether the husband was able to provide the documents Mr Mitchell pointed to the terms of the orders and also to the judge's finding that the husband controlled the Company and "the records that it kept" even though he was not formally a director. Indeed, the judge had found that he controlled all the relevant companies.
- As to the judge's findings, Mr Mitchell submitted that the judge had carried out a careful analysis of the evidence as reflected in his judgment. The judge had explained his findings and was entitled to make them. During the course of his oral submissions, Mr Mitchell went through each of the points raised by Mr Armstrong. He also dealt with the position adopted by the husband at each of the hearings. For example, following the July order the husband had sent an email stating that he would be unable to produce "the required documents within such a short time span" because he needed "time to go into the archives". In respect of the existence of historic licences the husband's case had first been that they had been left in the company's offices when possession had been given; then that they had been left in another unit; then that he had not been asked for them; and, finally, that they had been destroyed.
- In my view, Mr Mitchell advanced a powerful case that it is too late for the husband to seek to challenge the undertaking or the court's power to make the February and July orders. Mr Mitchell disputed that any issue as to jurisdiction was raised at all before the judge but, even if it was raised in March 2018, that was long after the undertaking was given and the orders were made. I would agree that the delay in this case was serious and it is not difficult to see the significant prejudice caused to the wife. No real reason has been put forward as to why this point was not raised previously. The circumstances of this case also militate powerfully against the grant of relief.
- If this was the only point in the case, I would refuse the application for an extension of time for appealing. However, because we are concerned with an appeal from a committal order, I propose to address the argument made on behalf of the husband that the undertaking and the orders were outside the scope of the court's powers.
- If I have recorded it correctly, I am unable to understand Mr Armstrong's submission that the undertaking was outside the court's powers or that, somehow, the court was functus and could not accept it. Undertakings will often form part of a final financial remedy order; will frequently engage with issues which are outside the scope of the 1973 Act (for the reasons given in Livesey v Jenkins); and will also typically create obligations which continue beyond the implementation of the specific provisions of the order made under the 1973 Act.
- Further, I cannot see how the husband could seek to appeal from the undertaking. As was made clear in Birch v Birch  1 WLR 2959, an undertaking is a promise "which a litigant volunteers to the court": Lord Wilson JSC (para 5). The court does not have power to "impose" any variation. "A litigant who wishes to cease to be bound by her (or his) undertaking should apply for "release" from it (or "discharge" of it); and often she will accompany her application for release with an offer of a further undertaking in different terms": Lord Wilson JSC (para 5).
- In the present case the husband has never made any such application, for release or discharge, so the undertaking remains in force. He also, therefore, has no right to seek to appeal from its provisions.
- I also reject the submission that the court's jurisdiction concluded with the June 2015 order or once the shares in the Company had been transferred. The court retained the power to make orders for the purposes of enforcing or procuring the effective implementation of its substantive order. As Mr Mitchell submitted, the transfer of an asset pursuant to an order does not mean that the court cannot subsequently order that documents or other objects required for the proper use or enjoyment of that asset be provided. He gave the simple example of a car's log book and service history. Another could be, as in this case, the keys to a property.
- The court has wide powers to make orders for "interim remedies" under r.20.2 of the FPR 2010, (which largely mirrors r.25.1 of the Civil Procedure Rules 1988) and to make orders under section 37 of the 1981 Act. These powers can be exercised both before and after judgment. This is expressly provided in respect of "interim remedies" by r.20.3(1)(b) FPR 2010.
- It is clear to me that, in general terms, to require the husband to provide information and to require him to deliver up documents were orders which fall within the scope of the court's powers either under r.20.2 of the FPR 2010 or within section 37 of the 1981 Act. The orders were not granting substantive relief but were orders which, to adopt the words from Goyal v Goyal (para 41), were "supportive or ancillary" to the wife's substantive rights under the June 2015 order.
- That leaves the issue of whether the court had power to make an order requiring the husband to deliver up documents which were the property of the Company.
- The argument advanced by Mr Armstrong is based on the court in this case having no substantive power to make orders in respect of a company's property or assets under the 1973 Act: Prest v Petrodel Resources Ltd  2 AC 415. The circumstances of that case were very different from those in this case. Here the husband was being required to deliver up documents, which he had no right to retain, to the person who was entitled to them, namely the wife who was the sole director (and shareholder) of the company. As a case management decision, in my view the judge would have been entitled to make the orders without requiring the wife to cause an application to be made by the Company. I say, "would have been", because the issue was not raised at the time. This was not a case of piercing the corporate veil as addressed in Petrodel v Prest. The court was using its powers to procure the implementation of its substantive order when the relevant parties were in effect before the court and when it would have been contrary to the overriding objective to require the Company to be joined or to require the wife to bring proceedings in the name of the Company for the delivery up to her of its documents.
- Mr Armstrong also submitted that the orders were jurisdictionally flawed because the documents were not within the husband's control or power. This argument is without merit. As to the February order, this expressly provided that the husband was to deliver up such of the documents "as are currently in (his) possession, custody or control". The July order contained a recital recording that the husband had "confirmed that the documents … were available and could be provided". The judge addressed this issue at length in his judgment and made a specific finding, as referred to above, that the documents were within the husband's control.
- I have carefully considered Mr Armstrong's submissions that the judge's findings were not supported by the evidence. The judge has, in my view, dealt meticulously with the evidence and has explained carefully why, applying the criminal standard of proof, he was satisfied that the breaches were proved. None of the points advanced by Mr Armstrong demonstrated any flaw or error in the judge's analysis or otherwise undermined his findings.
- By way of example, I deal with the submission that, as required by the February order, the husband's affidavit of 11th March 2016 provided "full details of … the means by which each of the Occupiers paid money to the Company (and, for the avoidance of doubt, if such payments are made to an agent of the Company, the means by which the agent accounts to the Company for the monies received by it)". The direct answer given in the affidavit was: "There was only one bank account for (the Company) which was permanently dormant because the money was collected by Halesowen Estates Ltd. Statements of these accounts have been provided previously". That clearly did not provide the required information.
- During his submissions, Mr Armstrong took us to another answer in the affidavit which, he submitted, when placed together with the answer above, provided the required information. This answer was: "The accounts were prepared by King and King Accountants. There were no books kept, as the rent was collected by Halesowen Estates Ltd."
- It can be seen that the above answers did not answer the relatively straightforward question of how the occupiers of the Company's properties paid money to the Company or how the agent accounted to the Company for the money it collected on the Company's behalf.
- In summary, my conclusions are as follows: (a) the husband cannot appeal from the undertaking: (b) there is no justification for extending the time for appealing from the undertaking and/or the orders; (c) there was jurisdiction to accept the undertaking and to make each of the relevant provisions in the February and the July orders; and (d) the judge was entitled to make the findings that the husband was in breach of the orders as set out in paragraphs 89 and 90 of his committal judgment. For the avoidance of doubt, the above conclusions do not affect the fact that the appeal from the committal order based on breaches of the undertaking has been conceded.
- I now turn to the appeal from the sentence imposed by the judge. The judge was provided with detailed submissions for the sentencing hearing. He was referred to a number of authorities including JSC BTA Bank v Solodchenko  1 WLR 350. In that case Jackson LJ said (para 45) that a sentence for contempt "performs a number of functions":
"First, it upholds the authority of the court by punishing the contemnor and deterring others. Such punishment has nothing to do with the dignity of the court and everything to do with the public interest that court orders should be obeyed. Secondly, in some instances it provides an incentive for belated compliance, because the contemnor may seek a reduction or discharge of sentence if he subsequently purges his contempt by complying with the court order in question."
Later in his judgment (para 56) Jackson LJ identified that, "out of fairness to the contemnor", the court might indicate "(a) what portion of the sentence should be served in any event as punishment for past breaches and (b) what proportion of the sentence the court might consider remitting in the event of prompt and full compliance thereafter". This latter element is sometimes referred to as the "coercive element", as it was by the judge. I should add that, as Jackson LJ made clear, any such indication would not be binding on a future court but would be persuasive.
- Imprisonment is clearly only to be imposed when necessary to reflect the seriousness of the contempt. The same applies in respect of the term of any sentence. The judge, again very carefully, analysed what he regarded as the aggravating and mitigating factors in this case. None of Mr Armstrong's submissions have persuaded me that the judge's assessment was flawed.
- The judge was plainly entitled to conclude that the wife had been "seriously prejudiced by (the husband's) actions" and that the husband's breaches were "deliberate and sustained". He took into account the husband's health. He also recognised that imprisonment would have a "very marked effect on the husband". In my view, the judge's decision to impose a term of imprisonment was clearly justified.
- As to the length of the term, I can see no reason for interfering with the term imposed by the judge. The judge weighed all the relevant factors and there is nothing to suggest that he gave too much weight to some and too little weight to others. He carefully defined which part was by way of punishment and which was coercive in nature. Neither 9 months in respect of the former nor 5 months in respect of the latter are excessive. The judge was also plainly entitled to conclude that the husband remained in breach of the orders and that there were documents which could be provided by the husband.
- I have additionally considered whether the judge's sentence in respect of breaches of the orders, in particular the February order, might have been influenced by the order he made in respect of breaches of the undertaking. I have considered this separately because the committal order for the latter is being discharged. In my view, the judgment makes it clear that the judge dealt with each of the relevant breaches separately from the others. I am satisfied, therefore, that the sentences imposed for breaches of the February and July orders were distinct and were not influenced by the breaches of the undertaking.
- I conclude with the following. The judge found that the husband "does not appear to recognise the seriousness of what he has done". Nothing said during the course of the hearing of the appeal gave any indication that the husband has yet appreciated the seriousness. There was no expression of regret or apology which might ameliorate the judge's conclusion that the husband's "contemptuous disregard" of the orders was motivated by his "resentment" of the June 2015 order.
- Accordingly, the appeal from the committal order made in respect of the breaches of the undertaking will be allowed. Otherwise, I propose: (i) the application for an extension of time for appealing from the undertaking and the February and July orders be refused; (ii) the application for permission to appeal those provisions be refused; (iii) the appeal from the committal order and the sentences imposed for the breaches of the February and July orders be dismissed.
Lady Justice Asplin:
- I agree.
Lord Justice Kitchin:
- I also agree.
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