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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Coveris Flexibles UK Ltd v Brears & Ors  EWHC 1594 (QB) (21 June 2022)
Cite as:  EWHC 1594 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| COVERIS FLEXIBLES UK LIMITED
- and -
|(1) MR SIMON BREARS
(2) GLOBE IMPORTS AND SOURCING LIMITED
(3) MR DAVID JACK HARBINSON
(4) H&H PRINT SOLUTIONS LIMITED
Peter Gilmour (instructed by Clifford Johnston & Co) for the First Defendant
The Second to Fourth Defendants did not appear and were not represented
Hearing date: 20 June 2022
Crown Copyright ©
Mr Justice Henshaw:
(C) THE CONTEMPTS OF COURT
(C) THE CONTEMPTS OF COURT
(1) breaching the Search Order by refusing access to the Supervising Solicitor, after the latter had explained to him the terms of the Order and the penal notice it contained;
(2) breaching the Search Order by wrongly telling the Supervising Solicitor that Mr Brears potentially had Covid-19;
(3) making the untrue statement to the Supervising Solicitor on 23 April 2021 that there were no electronic devices covered by the Search Order at his home, when in fact he had a mobile phone and a personal computer;
(4) breaching the Search Order by making more than one telephone call to Mr Harbinson after service of the Order, in which he told Mr Harbinson "what had happened";
(5) breaching the Search Order by not providing his mobile phone to the Supervising Solicitor, instead handing over a new phone which he had purchased at 24 April 2021 and into which he had inserted the SIM card from the original phone; Mr Brears also admits that on 22 June 2021 his then solicitors, based on false information provided in his instructions, wrongly told Coveris's solicitors that the phone he had handed over was the one he had used since returning his company mobile phone; later, Mr Brears provided the original phone to his solicitors on 20 December 2021, who then notified Coveris's solicitors and arranged for it to be handed over (albeit it appears no data could be found on it);
(6) failing to disclose the existence of a new SIM card which he acquired after the date of the search;
(7) on 23/24 April 2021, after service of the Search Order, searching for potentially incriminating emails and deleting 40 such emails, in breach of the search order;
Breach of prohibitory injunction
(8) in breach of the prohibitory injunction contained in the Search Order and continued in the Return Date Order (in a form agreed with Mr Brears), soliciting orders from named customers of the Claimant other than in the manner allowed by the Return Date Order, as alleged by Coveris. Coveris's allegations related to TQL and two other customers, and included the numerous solicitations of TQL referred to in § 17 above.
False statements in documents and to the court
(9) making a false statement made in an affidavit dated 13 May 2021, to the effect that Mr Brears had not misused Coveris's confidential information;
(10) making 24 false statements in his Defence;
(11) making a false statement in his response to the Part 18 request dated 6 December 2021, in relation to the sending of emails from his email account;
(12) making false statements made during the Part 18 application before Master Thornett on 1 December 2022 (though not explicitly set out in Mr Brears' affidavit, this was accepted on his behalf during hearing before me); and
(13) making false statements in his witness statement dated 11 November 2021, served in response to the committal application.
"The decision in Crystalmews Limited v. Metterick contains a check-list of matters the court should consider relating to sentence. This comprises:
- whether the claimant is prejudiced by virtue of the contempt and whether the contempt is capable of remedy,
- the extent to which the contemnor has acted under pressure,
- whether the breach of the order was deliberate or unintentional,
- the degree of culpability,
- whether the contemnor was placed in breach by reason of the contempt,
- whether the contemnor appreciated the seriousness of the breach,
- whether the contemnor has cooperated.
I would add to these factors the following:
- whether the contemnor has admitted his contempt and has entered a guilty plea. By analogy with sentencing in criminal cases the earlier the admission the more credit the contemnor is entitled to be given,
- whether the contemnor has made a sincere apology for his contempt,
- the contemnor's previous good character and antecedents, and
- any other personal mitigation advanced on his behalf."
"The length of that sentence will, of course, depend on all the circumstances of the case, but again we agree with the observations of Jackson LJ as to the length of sentence which may often be appropriate. Mr Underwood was correct to submit that the decision as to the length of sentence appropriate in a particular case must take into account that the maximum sentence is committal to prison for two years. However, because the maximum term is comparatively short, we do not think that the maximum can be reserved for the very worst sort of contempt which can be imagined. Rather, there will be a comparatively broad range of conduct which can fairly be regarded as falling within the most serious category and as therefore justifying a sentence at or near the maximum." (§ 40)
i) There are no formal sentencing guidelines for sentence/sanction in committal proceedings.
ii) Sentences/sanctions are fact specific.
iii) The court should bear in mind the desirability of keeping offenders and, in particular, first-time offenders, out of prison: see Templeton Insurance Ltd v Thomas  EWCA Civ 35 and Otkritie International Investment Management Ltd v Gersamia  EWHC 821 (Comm).
iv) Imprisonment is only appropriate where there is "serious, contumacious flouting of orders of the court": see Gulf Azov Shipping Company Ltd v Idisi  EWCA Civ 21 at  (Lord Phillips MR).
v) The key questions for the court are the extent of the defendant's culpability, and the harm caused by the contempt: see Otkritie International Investment Management Ltd v Gersamia (above).
vi) Committal to prison may serve two distinct purposes: (a) punishment of past contempt and (b) securing compliance: see Lightfoot v Lightfoot  1 FLR 414 at 414-417 (Lord Donaldson MR).
vii) It is good practice, for the court's sentence to include elements of both purposes (punishment and compliance) to make clear what period of committal is regarded as appropriate for punishment alone, i.e. what period would be regarded as just if the contemnor were promptly to comply with the order in question: see JSC Bank v Soldochenko (No 2)  1 WLR 350.
viii) Committal may be suspended: see CPR Part 81.9(2). Suspension may be appropriate: (a) as a first step with a view to securing compliance with the Court's orders: see Hale v Tanner  1 WLR 2377 at 2381; and (b) in view of cogent personal mitigation: see Templeton Insurance Ltd v Thomas  EWCA Civ 35.
ix) The court may impose a fine. If a fine is appropriate punishment, it is wrong to impose a custodial sentence because the contemnor could not pay the fine: see Re M (Contact Order)  EWCA Civ 615.
x) Sequestration is also available as a remedy for contempt: see CPR Part 81.9(2).
Counsel for Mr Brears particularly highlighted points (iii) and (iv) above.
"… The current conditions in prisons represent a factor which can properly be taken into account in deciding whether to suspend a sentence. In accordance with established principles, any court will take into account the likely impact of a custodial sentence upon an offender and, where appropriate, upon others as well. Judges and magistrates can, therefore, and in our judgment should, keep in mind that the impact of a custodial sentence is likely to be heavier during the current emergency than it would otherwise be. Those in custody are, for example, confined to their cells for much longer periods than would otherwise be the case – currently, 23 hours a day. They are unable to receive visits. Both they and their families are likely to be anxious about the risk of the transmission of Covid-19.
Applying ordinary principles, where a court is satisfied that a custodial sentence must be imposed, the likely impact of that sentence continues to be relevant to the further decisions as to its necessary length and whether it can be suspended. …" (§§ 41 and 42)
"We are told that although the nation is no long in lockdown, as it was at the time of the decision in Manning, prison conditions remain difficult. By reason of the pandemic, prisoners frequently remain confined to their cells for very long periods and have no access to education or other facilities within the prison. Visits remain impacted. In our judgment, it thus remains incumbent on judges and magistrates who are imposing shorter sentences to consider the impact of prison conditions upon the offender. In our view, the date of the commission of the offence has no relevance in this regard. The impact of the pandemic on prison conditions remains the same for all offenders, whatever their state of knowledge about them may have been at the time that they committed the offence." (§ 15)
"In Korta-Haupt v Chief Constable of Essex Police  EWCA Civ 892, the Court of Appeal explained that there is no automatic Covid-19 discount and that the question is fact-specific. R v Manning was decided in the height of the pandemic and the public health emergency has largely dissipated since then. There is for instance published guidance showing that visiting has recommenced in many prisons." (§ 7)
"Factors indicating that it would not be appropriate to suspend a custodial sentence
Offender presents a risk/danger to the public
Appropriate punishment can only be achieved by immediate custody
History of poor compliance with court orders"
"Factors indicating that it may be appropriate to suspend a custodial sentence
Realistic prospect of rehabilitation
Strong personal mitigation
Immediate custody will result in significant harmful impact upon others"
"68. Having reached a conclusion that a term of committal is inevitable, and having decided the appropriate length of that term, the court must consider what reduction should be made to reflect any admission of the contempt. In this regard, the timing of the admission is important: the earlier an admission is made in the proceedings, the greater the reduction which will be appropriate. Consistently with the approach taken in criminal cases pursuant to the Sentencing Council's definitive guideline, we think that a maximum reduction of one third (from the term reached after consideration of all relevant aggravating and mitigating features, including any admissions made before the commencement of proceedings) will only be appropriate where conduct constituting the contempt of court has been admitted as soon as proceedings are commenced. Thereafter, any reduction should be on a sliding scale down to about 10% where an admission is made at trial.
69. The court must, finally, consider whether the term of committal can properly be suspended. In this regard, both principle and the case law to which we were referred lead to the conclusion that in the case of an expert witness, the appropriate term will usually have to be served immediately, and that one or more powerful factors justifying suspension will have to be shown if the term is to be suspended. We do not think that the court is necessarily precluded from taking into account, at this stage of the process, factors which have already been considered when deciding the appropriate length of the term of committal. Usually, however, the court in deciding the length of the term will already have given full weight to the mitigation, with the result that there is no powerful factor making it appropriate to suspend the term. If the immediate imprisonment of the contemnor will have a serious adverse effect on others, for example where the contemnor is the sole or principal carer of children or of vulnerable adults, that may make it appropriate for the term to be suspended; but even then, as the Bashir case  ACD 69 shows, an immediate term—greatly shortened to reflect the personal mitigation—may well be necessary."
"… when the court has granted a search order, it is because there is strong and convincing evidence of wrongdoing on the part of the respondent and of the risk of destruction or variation, alteration or removal of items and documents. Therefore, where the court has thought it right to make such an order, the party at whose suit it was made can reasonably expect the court to be properly rigorous in ensuring that the order has been complied with."
and in his judgment on sentence, Neuberger J said:
"… it seems to me that it is important that this court sends out a clear message that, when search orders are made served and executed, they have to be complied with, indeed strictly complied with. Any significant breach of a search order should normally be visited by an order for imprisonment, possibly on a suspended basis, and/or substantial fine."
"…defendants who are the subject of Anton Piller orders must be aware that they are not granted by the courts simply for fun. They are in strong terms and are meant to be complied with fully and properly".
"any deliberate and substantial breach of the restraint provisions or the disclosure provisions of a freezing order is a serious matter. Such a breach normally attracts an immediate custodial sentence which is measured in months rather than weeks and may well exceed a year"
I agree with Coveris that a deliberate breach of the restraint provisions or the disclosure provisions of a Search Order is no less serious.
"We say at once, however, that the deliberate or reckless making of a false statement in a document verified by a statement of truth will usually be so inherently serious that nothing other than an order for committal to prison will be sufficient." (§ 59)
i) Mr Brears' culpability for all of these contempts is high, as his counsel accepts. They were committed deliberately, with the intention of furthering his own ends (including concealing his own pre-existing conduct in knowing breach of his duties to Coveris), and in knowing violation of his duties under the court's orders and procedures. I am sure that he knew exactly what he was doing, and knew that his actions were in breach of the court's orders or, in some cases, his duty to the court to be truthful. The fact that, belatedly, Mr Brears has come to admit that he committed all these contempts does not diminish his culpability in having done so.
ii) There is no evidence or suggestion that Mr Brears acted under pressure from others.
iii) Coveris has been prejudiced by Mr Brears' contempts. There is specific commercial prejudice arising from the breaches of the prohibitory injunctions as already explained. His breaches have also led to Coveris incurring very substantial legal expenses: regardless of what sums might in due course be assessed as being recoverable (in theory) from Mr Brears himself. Conversely, it is fair to say that there may well be no further, ongoing harm, since Globe is now in liquidation, and Mr Brears says he has no intention of being involved in the same area of business as Coveris any more (or necessarily in business at all).
iv) Mr Brears is bound to have appreciated the seriousness of his breaches, particularly given the clear terms of the Search Order and the penal notice which he now admits was explained to him, and the obvious need to tell the truth when signing statements of truth and making submissions in court.
v) Mr Brears can be said to have cooperated only to the extent that, starting with his solicitors' letter of 16 December 2021 letter, and rather more fully in his 26 January 2022 affidavit, he has admitted the contempts. However, (a) by the time of the fuller confessions in the affidavit, a full trial of the contempt application was only two weeks away, and (b) that came in the wake of a substantial period of covert activity contrary to his duties to his employer, Coveris, from April 2020 to mid 2021, and a sustained series of deliberate self-serving breaches of the court's orders and processes from April 2021 to December 2021. Moreover, as Coveris points out, Mr Brears admitted the allegations of contempt only when faced with a contempt application which made many of the allegations virtually unanswerable, Coveris having through its own forensic and other enquiries ascertained the truth. Mr Brears also demonstrated markedly uncooperative conduct in other aspects of the litigation, including by seeking to evade service of documents by claiming to be emigrating and of no fixed abode (leading to Coveris having to make an alternative service application); and by setting up his email account to send automated responses to the effect that emails were not being delivered to the recipient, when in fact Mr Brears was using the very same email account for his communications with the court and thus evidently was receiving messages sent to it. Further, Mr Brears has not given a full account of events, in particular as to the role of Mr Harbinson, about which he has appeared reticent.
vi) Mr Brears has now admitted his contempts and, in substance, entered a guilty plea. He is entitled to a degree of credit accordingly.
vii) Mr Brears has apologised for his contempt, though it is hard to judge its sincerity in circumstances where even in his most recent affidavit, his second affidavit dated 9 June 2022, he has not been entirely forthcoming. I return to this topic shortly.
viii) Mr Brears is of previous good character, though only if by 'previous' one ignores the whole of his conduct since April 2020 when he commenced the breaches of duty to which Coveris's substantive claims relate, those being claims which Mr Brears no longer seeks to contest.
ix) There is some personal mitigation available to Mr Brears, though I would hesitate to describe it as strong. I return to this topic shortly.
x) In the present case, there is no particular remedial action which the court could now seek to encourage Mr Brears to take by making an order conditional on compliance by Mr Brears.
"He is clear that he took the decisions he did to try and make the legal process end. He admitted that he knew what he was doing was wrong when he did it. He said that things changed in the pandemic and he felt angry with his employer, mistreated and was trying to start again. It is my view given the fact that he was trying to set up a new business, and also had made active statements in November 2021 in his defence which were untrue shows that he is capable of making decisions and that he was aware of what he was doing was wrong. I do not believe his depression can be blamed for this and there is certainly no evidence of any psychosis. It is likely that his depressive illness has been aggravated by his actions. It was also present at the time of his actions."
Professor Fox also expresses the view that prison will affect Mr Brears' mental health and likely increase the risk of suicide. Professor Fox notes that there are prison medical/mental health services available, though they can be limited, and believes that with the right follow-up Mr Brears could be improved significantly and the risks reduced.
i) between about April 2020 and December 2020, Mr Brears was a full-time employee of Coveris, while simultaneously managing and running the day-to-day business of Globe;
ii) Mr Brears provided a doctor's certificate to Coveris in September 2020 indicating that he was too ill to work as a consequence of depression, but between September and December 2020 was nonetheless actively engaged in the business of Globe (as detailed in the Amended Particulars of Claim § 19C);
iii) when faced with the Search Order, Mr Brears referred to his mental health, but immediately engaged in a course of action that sought to deceive the Supervising Solicitor and allow him to destroy or conceal important evidence; and
iv) whilst dealing with this litigation is obviously stressful for Mr Brears, his mental health problems provide no excuse or justification for his unlawful acts.
i) Contempts 1-4, relating to attempts to delay or frustrate the search, and the call to Mr Harbinson, would in aggregate merit a term of 2 months' custody.
ii) Contempts 5-7, relating to efforts to destroy or conceal evidence, would in aggregate merit a term of 6 months' custody.
iii) Contempt 8, relating to multiple breaches of the prohibitory injunction, would merit a term of 9 months' custody.
iv) Contempts 9-13, relating to false statements in documents and to the court, would in aggregate merit a term of 6 months' custody.
"7. The statutory basis for legal aid is set out in Part 1 of LASPO. Section 1(2) defines legal aid as "(a) civil legal services to be made available under section 9 or 10 or paragraph 3 of Schedule 3 (civil legal aid), and (b) services consisting of advice, assistance and representation required to be made available under section 13, 15 or 16 or paragraph 4 or 5 of Schedule 3 (criminal legal aid)".
8. The regimes for civil and criminal legal aid are distinct and mutually exclusive: "civil legal services" are defined broadly as "any legal services other than the types of advice, assistance and representation that are required to be made available under sections 13, 15 and 16) (criminal legal aid)", see s.8(3).
9. When LASPO came into force, there was considerable confusion about whether defendants to civil committal applications should apply for civil or criminal legal aid. A series of cases has established that these applications fall within the definition of "criminal proceedings" under s.14(h) and so respondents to them are entitled to 'criminal legal aid' rather than 'civil legal aid'. See, for example, King's Lynn and West Norfolk Council v Bunning  1 WLR 531; Brown v London Borough of Haringey  EWCA Civ 483, in respect of a committal application brought in the County Court for breach of an anti-social behaviour injunction; and All England Lawn Tennis Club (Championships) Ltd v McKay (No. 2)  EWHC 3065.
10. The Legal Aid Agency accepts this position and has produced guidance, the most recent version of which was issued in February 2020: "Apply for legal aid in civil contempt – committal proceedings". This guidance confirms that criminal legal aid for civil contempt proceedings heard in civil venues is not means tested, a position
consistent with the decision in All England Lawn Tennis Club (supra): "In criminal proceedings other than those in the magistrates' court or Crown Court, the relevant authority must make a determination that the individual's financial resources are such that he or she is eligible: see reg. 39 of the Criminal Legal Aid (Financial Resources) Regulations 2013 (SI 2013/471)", per Chamberlain J.
11. A party in receipt of civil legal aid will have the benefit of s.26 LASPO. This provides that costs ordered against an individual in 'relevant civil proceedings' must not exceed the amount (if any) which it is reasonable for the individual to pay having regard to all the circumstances, including (a) the financial resources of all of the parties to the proceedings, and (b) their conduct in connection with the dispute to which the proceedings relate. Where s.26 is engaged, the process to be followed by the court and the parties is set out in the Civil Legal Aid (Costs) Regulations 2013. A legally aided defendant only becomes liable to pay costs once the court has applied the test in s.26 and evaluated financial resources and conduct.
12. Section 26 relates to "costs ordered against an individual in relevant civil proceedings". "Relevant civil proceedings" for this purpose are defined under s.26(2) as "(a) proceedings for the purposes of which civil legal services are made available to the individual under this Part or (b) if such services [ie civil legal services] are made available to the individual under this Part of the purposes of only part of proceedings, that part of the proceedings."
13. As Section 26 of LASPO only applies to civil legal aid, it must follow that it does not apply in civil committal proceedings where the defendant is in receipt of criminal legal aid. There does not appear to be an equivalent provision for criminal legal aid, no doubt because the criminal courts already take account of an offender's means and ability to pay before making a costs order: see R v Northallerton Magistrates' Court, ex parte Dove  1 Cr App R (S) 136 (CA) and the Criminal Costs Practice Direction (2015).
14. There appears to be a lacuna. There are mechanisms in place to protect impecunious parties facing costs orders in the criminal courts, and legally aided parties in the civil courts. The exception seems to be civil committal proceedings. There is nothing to suggest such an omission is intentional, rather it appears to have come about because of the general confusion in 2012 about the type of legal aid that respondents to civil committal applications should receive, as outlined in Bunning (supra). It does, however, seem unfair to those defendants who are impecunious that in certain respects they are put in a worse position by the decision that they should receive criminal, rather than civil legal aid."