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England and Wales Family Court Decisions (High Court Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (High Court Judges) >> Bailey v Bailey (Committal) (Rev1)  EWFC 5 (04 February 2022)
Cite as:  EWFC 5
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Strand, London, WC2A 2LL
B e f o r e :
| MARIE-THERESE ELISABETH HELENE HOHENBERG BAILEY
|- and -
|(1) ANTHONY JOHN BAILEY
(2) CYRIL WOODS
(3) FARLEY RENTSCHLER
Chris Barnes and Harry Langford (instructed by Bindmans LLP) for the First Respondent
The Second and Third Respondents did not attend and were not represented
Hearing dates: 31 January and 1 February 2022
Crown Copyright ©
Mr Justice Peel :
Attendance and representation
i) Both were parties to the substantive financial remedy proceedings, but did not attend or participate. They have not engaged with the proceedings in this country.
ii) The committal applications against them, dated 7 June 2021, were served on each of them by email on 12 July 2021 pursuant to the order of Mostyn J on 9 June 2021. Service in this manner is permissible in the light of Wilmot v Maughan  EWCA Civ 1668, applied by Lieven J in Emoni v Atabo  EWHC 3322. They have similarly been served with notice of hearing dates. They are, I am quite sure, well aware of the committal applications against them, and the hearing before me. They have chosen not to participate.
"It will be an unusual, but by no means exceptional, course to proceed to determine a committal application in the absence of a respondent. This is so because:
i) Committal proceedings are essentially criminal in nature, even if not classified in our national law as such (see Benham v United Kingdom (1996) 22 EHRR 293 at , Ravnsborg v. Sweden (1994), Series A no. 283-B); in a criminal context, proceeding with a trial in the absence of the accused is a course which will be followed only with great caution, and with close regard to the fairness of the proceedings (see R v Jones (Anthony)  1 AC 1, approving the checklist provided in R v Jones; R v Purvis  QB 862);
ii) Findings of fact are required before any penalty can be considered in committal proceedings; the presumption of innocence applies (Article 6(2) ECHR). The tribunal of fact is generally likely to be at a disadvantage in determining the relevant facts in the absence of a party;
iii) The penalty of imprisonment for a proven breach of an order is one of the most significant powers of a judge exercising the civil/family jurisdiction; the respondent faces the real prospect of a deprivation of liberty;
iv) By virtue of the quasi-criminal nature of committal process, Article 6(1) and Article 6(3) ECHR are actively engaged (see Re K (Contact: Committal Order)  EWCA Civ 1559,  1 FLR 277 and Begum v Anam  EWCA Civ 578); Article 6(1) entitles the respondent to a "a fair and public hearing"; that hearing is to be "within a reasonable time";
v) Article 6(3) specifically provides for someone in the position of an alleged contemnor "to defend himself in person or through legal assistance of his own choosing", though this is not an absolute right in the sense of "entitling someone necessarily to indefinite offers of legal assistance if they behave so unreasonably as to make it impossible for the funders to continue sensibly to provide legal assistance" (per Mance LJ (as he then was) in Re K (Contact: Committal Order) (reference above)). The respondent is also entitled to "have adequate time and the facilities for the preparation of his defence" (Article 6(3)(b))."
"As neither respondent has attended this hearing, and in view of Mr. Gration's application to proceed in their absence, I have paid careful attention to the factors identified in  above, and, adapting the guidance from R v Jones; R v Purvis, have considered with care the following specific issues:
i) Whether the respondents have been served with the relevant documents, including the notice of this hearing;
ii) Whether the respondents have had sufficient notice to enable them to prepare for the hearing;
iii) Whether any reason has been advanced for their non-appearance;
iv) Whether by reference to the nature and circumstances of the respondents' behaviour, they have waived their right to be present (i.e., is it reasonable to conclude that the respondents knew of, or were indifferent to, the consequences of the case proceeding in their absence);
v) Whether an adjournment for would be likely to secure the attendance of the respondents, or at least facilitate their representation;
vi) The extent of the disadvantage to the respondents in not being able to present their account of events;
vii) Whether undue prejudice would be caused to the applicant by any delay;
viii) Whether undue prejudice would be caused to the forensic process if the application was to proceed in the absence of the respondents;
ix) The terms of the 'overriding objective' (rule 1.1 FPR 2010), including the obligation on the court to deal with the case 'justly', including doing so "expeditiously and fairly" (r.1.1(2)), and taking "any … step or make any… order for the purposes of … furthering the overriding objective" (r.4.1(3)(o)).
Admissibility of the substantive judgment.
"The rule in Hollington v Hewthorn
32. In this case the Court of Appeal held that the conviction of the defendant in the magistrates' court for careless driving was inadmissible in a subsequent action in which the plaintiff and his son (who had since died) claimed damages on the ground of the defendant's negligent driving. The rule extends so as to render factual findings made by judges in civil cases inadmissible in subsequent proceedings (unless the party against whom the finding is sought to be deployed is bound by it by reason of an estoppel per rem judicatam).33. This doctrine is not new. It is to be found in the Duchess of Kingston's case (1776) 2 Sm L.C., 13th edn, 644, where Sir William Grey, Lord Chief Justice of the Common Pleas, said:"What has been said at the bar is certainly true, as a general principle, that a transaction between two parties, in judicial proceedings, ought not to be binding upon a third; for it would be unjust to bind any person who could not be admitted to make a defence, or to examine witnesses, or to appeal from a judgment he might think erroneous; and therefore the depositions of witnesses in another cause in proof of a fact, the verdict of a jury finding the fact, and the judgment of the court upon facts found, although evidence against the parties, and all claiming under them, are not, in general, to be used to the prejudice of strangers. There are some exceptions to this general rule, founded upon particular reasons, but, not being applicable to the present subject, it is unnecessary to state them."34. The rule also applies to the findings of facts of arbitrators: Land Securities Plc v Westminster City Council  1 WLR 286; of coroners or coroners' juries: Bird v Keep  2 KB 692; of persons conducting a Wreck Inquiry: Waddle v Wallsend Shipping Co  2 Lloyd's Rep 105, where Devlin J suggested that the law should be changed; and The European Gateway where Steyn J repeated the suggestion  QB 206; and to the findings of individuals, of however great distinction, conducting extra statutory inquiries such as Lord Bingham's Report into the Supervision of BCCI: Three Rivers District Council v Bank of England (No 3)  2 AC 1. The judge treated the rule as applicable to judicial findings, being, for this purpose, "an opinion of a court or other tribunal whose responsibility it is to reach conclusions based solely on the evidence before it". If that definition was intended to exclude a tribunal whose remit is to carry out its own investigation it is too narrow.35. The rule, at any rate so far as it applies to criminal convictions, has been controversial for years. In Hunter v Chief Constable of the West Midlands  QB 283, 319 Lord Denning MR, who had been counsel for the appellant in Hollington v Hewthorn described it as "beyond doubt …wrongly decided". In the House of Lords in the same case Lord Diplock said that that was generally considered to be so. In Arthur JS Hall v Simons  1 AC 615, 702 Lord Hoffmann said that the Court of Appeal in that case was "generally thought to have taken the technicalities of the matter too far".36. Insofar as the rule precludes reliance on criminal convictions in subsequent civil proceedings it has been abrogated by statute: the Civil Evidence Act 1968. But it still applies in relation to findings of fact in civil proceedings: Land Securities Plc v Westminster City Council  1 WLR 286, 288E-F per Hoffmann J; Secretary of State for Business Enterprise and Regulatory Reform v Aaron & Ors  EWCA Civ 1146; [20- 29], where Thomas LJ dealt with the rule and the exception to it in respect of Companies Act investigations where the investigators' findings of fact are admissible in disqualification proceedings; Calyon v Michailaidis  UKPC 34.37. One of the reasons given by Lord Goddard for the rule was that the court should require the "best evidence". This, as Lord Hoffman observed in Land Securities Plc v Westminster City Council  1 WLR 286, was a disguised reference to the rule against hearsay, now abrogated by the Civil Evidence Act 1995. In Masquerade Music Ltd v Springsteen  EWCA Civ 563 at  Jonathan Parker LJ declared that the time had come when it could be said with confidence that the "best evidence rule, long on its deathbed, has finally expired".38. The reasoning that has survived is that set out in the following passage of Lord Goddard's judgment (at 595):"It frequently happens that a bystander has a complete and full view of an accident. It is beyond question that, while he may inform the court of everything that he saw, he may not express any opinion on whether either or both of the parties were negligent. The reason commonly assigned is that this is the precise question the court has to decide, but, in truth, it is because his opinion is not relevant. Any fact that he can prove is relevant, but his opinion is not. The well recognized exception in the case of scientific or expert witnesses depends on considerations which, for present purposes, are immaterial. So, on the trial of the issue in the civil court, the opinion of the criminal court is equally irrelevant."39. As the judge rightly recognised the foundation on which the rule must now rest is that findings of fact made by another decision maker are not to be admitted in a subsequent trial because the decision at that trial is to be made by the judge appointed to hear it ("the trial judge"), and not another. The trial judge must decide the case for himself on the evidence that he receives, and in the light of the submissions on that evidence made to him. To admit evidence of the findings of fact of another person, however distinguished, and however thorough and competent his examination of the issues may have been, risks the decision being made, at least in part, on evidence other than that which the trial judge has heard and in reliance on the opinion of someone who is neither the relevant decision maker nor an expert in any relevant discipline, of which decision making is not one. The opinion of someone who is not the trial judge is, therefore, as a matter of law, irrelevant and not one to which he ought to have regard.40. In essence, as the judge rightly said, the foundation of the rule must now be the preservation of the fairness of a trial in which the decision is entrusted to the trial judge alone."
25. "The admissibility of findings from some of the earlier proceedings was challenged by Mr Sheehan on behalf of Mr Shalabayev. The issue arose in particular as regards the source of funding for the purchase of Alberts Court, through Sunstone and FM Company, and Teare J's findings as to Mr Ablyazov's ownership of these companies. Mr Sheehan based his objection to the admissibility of these findings on the long established rule in Hollington v F Hewthorn & Co  KB 587, that findings made in earlier court decisions are inadmissible since they represent no more than the opinion of the judge in the earlier case.
26. There can be no objection to reliance on the evidence referred to in earlier judgments, such as the contents of documents or the evidence of witnesses. In fact in this case the witness statements and affidavits, hearing transcripts and underlying documents from previous trials were available, so that recourse to the previous judgments for this purpose was largely unnecessary. Nor can there be objection in my view to a second category of case, where the court takes into account, in a like manner as it would any other factual evidence, statements of fact in earlier judgments, giving them such weight as it thinks fit."
27. Both possibilities were recognised in Rogers v Hoyle  QB 265, which concerned the admissibility in a negligence action of a report on the accident by the Department of Transport's Air Accident Investigation Branch. At first instance, after a careful consideration of the rule in Hollington v F Hewthorn & Co, Leggatt J held that the report was admissible. In the course of his judgment, he observed:
" It does not follow that there would be no advantage in a rule which treats findings of an earlier civil court as admissible in later proceedings. The problem of deciding how much weight should be given to such a finding only arises if evidence is adduced at the trial of the later proceedings to contradict it."
On appeal, Christopher Clarke LJ (with whom Arden and Treacy LJJ agreed) upheld Leggatt J on the admissibility of the report. He held:
" As the judge rightly recognised the foundation on which the rule [in Hollington v F Hewthorn & Co] must now rest is that findings of fact made by another decision maker are not to be admitted in a subsequent trial because the decision at that trial is to be made by the judge appointed to hear it ("the trial judge"), and not another. The trial judge must decide the case for himself on the evidence that he receives, and in the light of the submissions on that evidence made to him. To admit evidence of the findings of fact of another person, however distinguished, and however thorough and competent his examination of the issues may have been, risks the decision being made, at least in part, on evidence other than that which the trial judge has heard…
 In essence, as the judge rightly said, the foundation of the rule must now be the preservation of the fairness of a trial in which the decision is entrusted to the trial judge alone…
…The [air accident] report is not a bare finding such as one of carelessness or ownership of a painting. The statements of fact contained in the report, eg as to the position of the wreckage or the reported observations of the eye witnesses, are evidence which the trial judge can take into account in like manner as he would any other factual evidence, giving to it such weight as he thinks fit."
28. "Where Mr Sheehan for Mr Shalabayev drew the line was a third category, if the Bank sought to rely on findings of fact in the previous judgments in proceedings to which Mr Shalabayev was not a party, as evidence of the facts found. That was in direct conflict with what Christopher Clarke LJ had said in Rogers v Hoyle, who had based the rule on fairness. In his submission Eder J would have gone too far in accepting counsel's argument to that effect in Otkritie International v Gersamia  EWHC 821 (Comm),  - that if a judge in a later case concludes that the matters of primary fact recorded in an earlier judgment justify the conclusions reached in that judgment, he or she was entitled to reach the same conclusion – if 'matters of primary fact' were taken to mean findings of fact. The phrase had to be interpreted to mean the factual evidence recorded in the previous case, to which reference could be made.
29. The rule in Hollington v F Hewthorn & Co turns on fairness. That accords with the Overriding Objective of the CPR of dealing with cases justly and at proportionate cost. In relation to the earlier findings about the ownership of Sunstone and FM Company, there is no unfairness to Mr Shalabayev in my accepting them in this case, even if they fall into the third category of case above. The findings were made after hearing the evidence of Mr Ablyazov and Syrym, which I did not hear, and submissions on the issue. That evidence was that these companies were Syrym's. In this case, certainly as to Syrym, he could have been called to give evidence. He was available during the hearing but was not called. Instead findings on the matter were left to me to be made on the basis of the available documents, the very limited evidence of Mr Shalabayev (who accepted that he had nothing to do with the companies), Mr Hardman's statement and Mr Sheehan's rather short, written critique of it. In these circumstances there is no unfairness to Mr Shalabayev in my giving considerable weight to Teare J's findings on the ownership of Sunstone and FM Company. I return to the issue below".
"It is questionable whether the findings in the Other Proceedings would be admissible at all in the light of Hollington v F Hewthorn & Co Ltd  KB 587. If they were, there would be rich potential for debate about their impact. The nature of the inquiry was different. I think Mr Crystal was right to accept that the findings in the Other Proceedings would not be conclusive, even if admissible, against his client. For one thing the standard of proof is higher in contempt"
The facts of that case were rather different, and, in any event, the rule does not appear to have played any significant part in the decision not to allow an application for committal on the basis of an alleged false statement of truth. Moreover, Warby J appears to have considered, as submitted by counsel, that the findings in the previous proceedings were admissible, but not conclusive. If anything, therefore, these dicta support the admissibility of the judgment of HHJ Gibbons.
i) It is, it has to be said, a startling notion that the very judgment which gives rise to the order from which springs a committal application cannot be admitted in evidence. How else is a court to make sense of the order which has been made?
ii) Logically, on H's case, no judgment in a final hearing conducted according to the civil standard of proof can ever be referred to within subsequent committal proceedings. Thus, in a family context, a judge hearing a contempt application would not be permitted to take account of, or refer to, or in any way rely upon, findings made at a substantive trial of financial remedy, or public law, or private law proceedings, or indeed any other part of the family jurisdiction. Further, H's submission that "findings of fact by earlier tribunals are inadmissible in subsequent civil proceedings because they constitute opinion evidence" means that it would never be open to the court to be referred to the prior judgment upon a subsequent enforcement application of whatever nature. Moreover, following the logic through, a substantive judgment including findings as to, for example, periodical payments, could not be before the court upon a variation application under s31 of the Matrimonial Causes Act 1973 (as amended). All of this seems to me to be extremely doubtful.
iii) Counsel for H were not able to point me to a single authority where a substantive judgment was ruled inadmissible in a subsequent committal application made in respect of the order springing from that very same judgment, whether in family proceedings or elsewhere in the civil jurisdiction. My personal experience (and I believe reflected in published judgments on committal in the Family Court or Family Division) is entirely to the contrary. The closest they came was brief obiter dicta by Sir James Munby P (who appears to have received no submissions by counsel on the point) in Re L (A child)  EWCA Civ 173 where he said at paragraph 68:
"I referred in paragraph 50 above, to what McFarlane LJ had said in Re K about the circumstances in which a judge who had conducted the kind of hearing which took place in the present case before Keehan J on 8 October 2015 ought not to conduct subsequent committal proceedings. That issue, which was at the heart of the appeal in Re K, is not one which, in the event, arose for determination here, so I say no more about it. The point to which I draw attention, is simply this. Quite apart from the Comet principle, which, as we have seen, would prevent the use in subsequent committal proceedings of the evidence given by someone in Mr Oddin's position at a hearing such as that which took place on 8 October 2015, it is possible that the rule in Hollington v F Hewthorn and Company Limited and another  KB 587 might in certain circumstances prevent the use in subsequent proceedings of any findings made by the judge at the first hearing. That is a complicated matter which may require careful examination on some future occasion; so, beyond identifying the point, I say no more about it
I do not read those short sentences as authority for the proposition advanced on behalf of H.
iv) The rule can be encapsulated in one sentence. Goddard LJ said at 596-597 of Hollington v Hewthorn that "A judgment obtained by A against B ought not to be evidence against C". It concerns different parties to different proceedings. As HHJ Matthews said in Crypto (supra) it concerns admissibility "between different parties". And Phipson (supra) describes the rule as applicable to issues between strangers, or between a party and a stranger.
v) So far as I can tell, and consistent with these propositions, the rule in Hollington v Hewthorn has been applied to exclude previous judgments only in cases of separate, distinct proceedings and/or involving different parties. Even then, as both Hoyle v Rogers and JSC BTA Bank v Ablyazov demonstrate, the earlier decision may be admitted (or, perhaps more accurately, not excluded) if fairness so requires. The decision in Hollington v Hewthorn itself prevented a criminal conviction for careless driving being admitted in civil proceedings brought by those injured in the collision. These were two, separate sets of proceedings, with different parties since.
vi) By contrast, the committal applications before me are part of the same set of proceedings, namely enforcement referable to the financial remedy claims, and they are between the same parties.
vii) I conclude that Hollington v Hewthorn is not authority for the proposition that the judgment in earlier proceedings between the same parties cannot be admitted in evidence for the purpose of a contempt application arising out of the earlier judgment, and order made thereon.
viii) The foundation of the rule is the fairness of the subsequent trial.
ix) Evidence presented in the earlier proceedings, and the contents of the judgment from the earlier proceedings, are, in my judgment, admissible in subsequent committal proceedings flowing from the earlier proceedings, and between the same parties.
x) The weight to be attached to the earlier proceedings, and judgment, will be a matter for the judge conducting the committal proceedings.
xi) None of the above derogates from long established principle that the applicant must prove the alleged contempt of court to the criminal standard.
The written narrative evidence
Service of the first passport order
Procedure: general matters
Open court and right to remain silent
Contempt applications: general principles
i) A previous final order made by consent by HHJ O'Dwyer on 23 March 2018 was set aside, pursuant to W's application on the basis of material non-disclosure.
ii) Various promissory notes relied upon by H were held to be sham documents, and the alleged debts were not owed by H to the second and third respondents to these applications (the third and fourth respondents to the financial proceedings), nor had they ever existed (paragraph 34).
iii) A Portuguese property is beneficially owned by H, contrary to his case (Schedule, 1 para 3).
iv) There was no valid Cypriot trust, or, alternatively, if it is valid then H as settlor had wide-ranging powers (Schedule 1, paras 2 and 3).
v) Third party mortgages over the Portuguese property were executed by H in favour of the second and third respondents (the third and fourth respondents to the financial remedy proceedings) in order to defeat W's claim, the court finding that the reduced equity was false because the third and fourth respondents to the financial remedy proceedings never intended to enforce the mortgages (para 35).
vi) The promissory notes and mortgages were "fraudulent, void, of no effect and unenforceable as between the first, third and fourth respondents" (the latter being the second and third respondents to these applications) (paragraph 36).
vii) The execution of the mortgages was set aside. H and the second and third respondents (third and fourth respondents to the financial remedy proceedings) were ordered, within 7 days of the date of the order, to take all necessary steps to remove the third party mortgages against the property from the Portuguese Land Register (para 42).
viii) Two lump sum orders in favour of W totalling for £2,059,236 was made (to include payment of W's legal costs), payable on the first to sell of the marital home in Twickenham or the Portuguese property .
ix) H was ordered to execute, by 14 days after the date of the order, a written instrument referable to his Cypriot trust powers to enable the Portuguese property to be sold (para 48).
x) H was ordered to execute all other documents as may be required to carry into effect his instructions to the trust (paragraph 49).
xi) H was ordered to send an executed copy of the written instruction to W's solicitors within 24 hours of signature (paragraph 50).
xii) H was ordered to provide, within 14 days of the date of the order, Cypriot trust accounts since inception, a list of all bank accounts held by the trust, statements for each bank account since opening, a management and rental contract, and an account in respect of the rental of the Portuguese property from 1 January 2016 onwards (paragraph 55).
i) The settlor has the power by clause 8.3 to change the proper law of the trust.
ii) By clause 12.3 the settlor has powers to annul or amend any terms of the trust, to distribute or assign any trust property to a beneficiary, to direct the trustee in binding terms as to trust property, to appoint or remove a trustee, to terminate the trust, and (combined with clause 18.3) to add or remove any beneficiary. I note that the settlor is not barred from being a beneficiary or trustee.
"8. The respondent ANTHONY JOHN JAMES BAILEY and any other person served with this order must each hand over to the Tipstaff (for safe-keeping until the court makes a further order) as many of the following documents as are in his possession or control: - (a) every passport relating to the respondent and every identity card, ticket, travel warrant or other document which would enable the respondent to leave England and Wales.
11. The respondent ANTHONY JOHN JAMES BAILEY and any person served with this order must not (a) make any application for, (b) obtain, seek to obtain, or (c) knowingly cause, permit, encourage or support any steps being taken to apply for, or obtain any passport, identity card, ticket, travel warrant or other document which would enable either (a) the children, or (b) the respondent to leave England and Wales."
It is to be noted that the first passport order did not expressly prohibit H from leaving the jurisdiction. This appears to be due to some confusion in drawing it up at the time.
i) Against H for alleged breach of the passport orders.
ii) Against the second and third respondents for alleged breach of paragraph 42 of the financial remedy order (which imposed upon them a requirement to remove the third party mortgages against the Portuguese property from the Portuguese Land Register).
i) He found that H is physically and mentally well enough to attend this hearing personally.
ii) He found that H was physically and mentally well enough to have attended the intended final hearing before Holman J in September 2021.
iii) At the hearing before Sir Jonathan Cohen, H was in the United States and not, as he claimed over the video link and through his counsel, in Portugal. That was definitively established when the judge ordered Videoconferencing Bureau Ltd (responsible for the video link arrangements) to confirm his location, which was subsequently found to be in Florida. When W had initially requested the order (rightly, as it transpires, suspecting that H was in the USA and not Portugal), H immediately left the link, which Sir Jonathan concluded was to try and frustrate the tracing exercise.
iv) During the hearing, H refused to comply with the judge's requests to identify his address, or rotate his camera around the room from where he was joining the hearing.
v) By his own acknowledgment in a written statement, H made 7 trips to Spain, Germany, Rome and the USA between 23 June 2021 and 2 January 2022. According to H, all such trips were for leisure except for the visit to the USA which he said was for the purpose of investigating potential medical treatment, an assertion which Sir Jonathan did not accept.
vi) H was ordered to attend this final hearing in person. He has not done so.
vii) H was ordered to disclose exactly where he was during that hearing. He has not done so.
viii) H was ordered to attend the offices of W's Portuguese lawyers and present a copy of his passport, flight tickets to the USA and ESTA. He did not do so.
i) Failure to attend before Holman J in person.
ii) Failure to produce medical evidence.
iii) Failure to disclose where he was during the hearing before Sir Jonathan Cohen.
iv) Failure to attend at W's Portuguese solicitors' offices and produce certain documents.
There are no committal applications before me in respect of these matters, and I take them no further, although W is clearly flagging up the possibility of making further such applications.
My findings on the alleged breaches against H
The order HHJ Gibbons dated 23 April 2021
First passport order
i) I cannot be sure that H breached paragraph 8. In particular, I cannot be sure that he failed to deliver up all travel documents which would have enabled him to leave the UK. It is clear that he retained his Portuguese residency certificate, but that was necessary for onward travel from Ireland to Portugal rather than for travel from the UK to Ireland. There is no solid evidence (although some suspicion) that H did not comply.
ii) Contrary to paragraph 11, he obtained a plane ticket enabling him to travel from this jurisdiction to the Republic of Ireland.
My findings on the alleged breaches by the second and third respondents
"25. In making those points I would wish to emphasise that I do so only in the context of family cases. Family cases, it has long been recognised, raise different considerations from those elsewhere in the civil law. The two most obvious are the heightened emotional tensions that arise between family members and often the need for those family members to continue to be in contact with one another because they have children together or the like. Those two factors make the task of the court, in dealing with these issues, quite different from the task when dealing with commercial disputes or other types of case in which sometimes, in fact rarely, sanctions have to be imposed for contempt of court.
26. Having said that, firstly, these cases have to come before the court on an application to commit. That is the only procedure which is available. Not surprisingly, therefore, the court is directing its mind to whether or not committal to prison is the appropriate order. But it does not follow from that that imprisonment is to be regarded as the automatic consequence of the breach of an order. Clearly it is not. There is, however, no principle that imprisonment is not to be imposed at the first occasion: see Thorpe v Thorpe  2 FLR 127, a decision of this court. Nevertheless, it is a common practice, and usually appropriate in view of the sensitivity of the circumstances of these cases, to take some other course on the first occasion.
27. Secondly, there is the difficulty, as Mr Brett has pointed out, that the alternatives are limited. The full range of sentencing options is not available for contempt of court. Nevertheless, there is a range of things that the court can consider. It may do nothing, make no order. It may adjourn, and in a case where the alleged contemnor has not attended court, that may be an appropriate course to take, although I would not say so in every case. It depends on the reasons that may be thought to lie behind the non-attendance. There is a power to fine. There is a power of requisition of assets and there are mental health orders. All of those may, in an appropriate case, need consideration, particularly in a case where the court has not found any actual violence proved.
28. Thirdly, if imprisonment is appropriate, the length of the committal should be decided without reference to whether or not it is to be suspended. A longer period of committal is not justified because its sting is removed by virtue of its suspension.
29. Fourthly, the length of the committal has to depend upon the court's objectives. There are two objectives always in contempt of court proceedings. One is to mark the court's disapproval of the disobedience to its order. The other is to secure compliance with that order in the future. Thus, the seriousness of what has taken place is to be viewed in that light as well as for its own intrinsic gravity.
30. Fifthly, the length of the committal has to bear some reasonable relationship to the maximum of two years which is available.
31. Sixthly, suspension is possible in a much wider range of circumstances than it is in criminal cases. It does not have to be the exceptional case. Indeed, it is usually the first way of attempting to secure compliance with the court's order.
32. Seventhly, the length of the suspension requires separate consideration, although it is often appropriate for it to be linked to continued compliance with the order underlying the committal.
33. Eighthly, of course, the court has to bear in mind the context. This may be aggravating or mitigating. The context is often the break-up of an intimate relationship in which emotions run high and people behave in silly ways. The context of having children together, if that be the case, cannot be ignored. Sometimes that means that there is an aggravation of what has taken place, because of the greater fear that is engendered from the circumstances. Sometimes it may be mitigating, because there is reason to suppose that once the immediate emotions have calmed down, the molestation and threats will not continue.
34. Ninthly, in many cases, the court will have to bear in mind that there are concurrent proceedings in another court based on either the same facts or some of the same facts, which are before the court on the contempt proceedings. The court cannot ignore those parallel proceedings. It may have to take into account their outcome in considering what the practical effect is upon the contempt proceedings. They do have different purposes and often the overlap is not exact, but nevertheless the court will not want, in effect, the contender to suffer punishment twice for the same events.
35. Tenthly, it will usually be desirable for the court to explain very briefly why it has made the choices that it has made in the particular case before it. One understands all the constraints in a busy county court, dealing with large numbers of these cases these days, and one would not wish to impose too great a burden on the judiciary in this respect. Nevertheless, it would be appropriate in most cases for the contemnor to know why he or she was being sentenced to a period of imprisonment; why it was the length that it was; if it was suspended, why the suspension was as it was, but only very briefly."
"As with any sentence of imprisonment, that sanction should only be imposed where the Court is satisfied that the contemnor's conduct is so serious that no other penalty is appropriate. It is a measure of last resort. A suspended prison sentence, equally, is still a prison sentence. It is not to be regarded as a lesser form of punishment. A sentence of imprisonment must not be imposed because the circumstances of the contemnor mean that he will be unable to pay a fine. A sentence of imprisonment may well be appropriate where there has been a serious and deliberate flouting of the Court's order".
And later at :
"If a contemnor, even belatedly, demonstrates a genuine insight into the seriousness of his prior conduct and its unlawfulness, then the Court may well be able to conclude that the contemnor has 'learned his lesson' and the risk of future breach is thereby diminished."
i) Paragraph 42 of the order of 23 April 2021: 4 months imprisonments
This sentence shall run consecutively to ii) and iii) below.
ii) Paragraph 48 of the order of 23 April 2021: 4 months
Paragraph 49 of the order of 23 April 2021: 4 months
Paragraph 55 of the order of 23 April 2021: 4 months
These three sentences shall run concurrent with each other but consecutive to the breaches at i) above and iii) below.
iii) Paragraph 11 of the order of 25 May 2021: 4 months
This sentence shall consecutively to i) and ii) above.
i) Sentence the second respondent to 4 months imprisonment, suspended for 28 days from today on condition that he takes all necessary steps to remove the Third Party Mortgages from the Portuguese Land Register.
ii) Sentence the third respondent to 4 months imprisonment, suspended for 28 days from today on condition that she takes all necessary steps to remove the Third Party Mortgages from the Portuguese Land Register.