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	England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> Cherwayko v Cherwayko [2014] EWHC 4252 (Fam) (10 December 2014) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2014/4252.html Cite as: [2014] EWHC 4252 (Fam)

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IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice
		10th December 2014

MR. JUSTICE MOSTYN:

1. This is an application by the wife to commit the husband to prison for breach of para.3 of the order of 13^th October 2014. This order provided that by 4p.m. on 10^th November the respondent husband should serve a statement, supported by a statement of truth and including documentary evidence setting out (a) why he has not complied with the financial order dated 26^th February 2014; (b) his proposals for compliance; (c) his current financial circumstances, including but not limited to (i) properties; (ii) cash holdings, including bank accounts, shares and investments. The documentary evidence should include bank and credit card statements for all accounts covering the period from 26^th February 2014 to date; (iii) chattels, including cars; (iv) his shareholding in three named companies; (v) any other business assets. Paragraph 7 of the order provided that service of the order shall be effected by email and first class post to the respondent's solicitors.
2. The husband was in court when I gave judgment and pronounced the terms of that order. Further, the minute of the order was agreed by his then counsel, Mr. Carden. It was then served by post on 23^rd October 2014 and there was an acknowledgement made on 28^th October. The husband was fully aware of his obligations under the order and, indeed, on 6^th November his solicitors were writing asking for further time to deal with his obligations under para.3 of the order, citing his health as a reason for why there had not been compliance by that point.
3. It was within the powers of the court to order that this judgment be served in the way in which para.7 provided. That is provided for explicitly by rule 37.8(2)(b) of the Family Procedure Rules, which says that, in the case of any judgment or order the court may:

"(b) make an order in respect of service by an alternative method or at an alternative place".

4. The wife's solicitors stated that they would hold their hand in relation to enforcement until 21^st November by a letter on 18^th November 2014. That cannot be construed as a waiver in any shape or form of the obligation to comply with the obligations set out in para.3 of the order of 13^th October.
5. In the absence of any disclosure, an application was made for the committal of the husband by an application notice dated 26^th November 2014. That was supported by an affidavit from the wife's solicitor, Miss Ward, dated 26^th November. It is a fairly lengthy affidavit which sets out the background in full detail. The kernel of it is in para.9 where it is said that the respondent is in breach of the order and has not complied with the court's or his suggested extended time for service of his evidence.
6. An application notice was made to me on paper to abridge the time for service of this application for committal. I made an order on 27^th November. By para.3 I ordered that the respondent should attend this court today for the hearing of the committal application for the purposes either of making directions or determining the substantive application. Paragraph 4 provided that personal service on the respondent be dispensed with on the basis that my order, the application notice, affidavit in support and the notice of hearing are served on the respondent's solicitors by 4p.m. on 27^th November. In fact it was not possible for that particular order to be complied with because the order was not sealed by the very hard pressed staff of this court until 1^st December 2014, and made available to the wife's solicitors on 3^rd December.
7. On that very day the order, the application notice, the affidavit in support and the notice of hearing were served on the husband via his solicitors as my order provided. Therefore the husband has had a week to prepare for this hearing. Yet within that week, notwithstanding that he knew he was facing penal process, he has not complied with the order for disclosure and, much to my surprise, he has not attended this court. Mr. Yates has proffered an apology for his non-attendance and has told me that he is in the United States undergoing medical treatment. Even if that were true, I have been given no explanation at all as to why at no point since 13^th October the husband has made any attempt to comply with para.3 of my order.
8. It is said that he has acted in good faith, however. When I made my order on 13^th October he owed the wife the better part of £1.5million, being the first instalment of the award which is incorporated in my primary order of 26^th February 2014. Since then he has recently paid £510,000 to the wife and I have just been told by Mr. Yates that a further £552,000 (rounding up) is in the pipeline and will shortly be received by the wife, leaving around half a million pounds of the original order unpaid.
9. In a letter, written possibly yesterday, it was said that the balance of this year's instalment would be paid by the end of this week or by the early part of next week. However, Mr. Bentham, representing the wife, has been given a draft application notice which seeks to defer payment of the first instalment until 15^th January 2015. Whether one would characterise what the husband is doing as being acts of good faith or whether one would characterise it as being the product of coercion imposed on him by the court at the suit of the wife, is debateable. At all events, the steps that have been taken by the wife have resulted in two-thirds of the first instalment being paid to her by this time.
10. However, to my mind that does not excuse at all a blatant and defiant contempt committed by the husband in respect of para.3 of my order of 13^th October. That he is in contempt I am sure beyond a reasonable doubt. That the committal application was in fact served on him by virtue of the period of time it took for the court to process the paperwork, a few days after it had been intended, does not, to my mind, afford him any kind of technical defence for punishment for that contempt.
11. Mr. Bentham strongly argues that the court should make an immediate committal order. I recall the exegesis of Lord Justice Rix in a recent case in which he explains how a committal order has two elements, namely coercion and punishment, and the two elements have to be carefully balanced. It is for this reason that, whilst there is no principle that the court should normally not move straight to direct committal but should halt at the stop marked "suspended order", there is certainly a practice to that effect.
12. In my judgment, notwithstanding the defiant contempt of the respondent, it would be disproportionate for me now to imprison the husband for six months, as is sought by the wife, and notwithstanding the eloquent plea in aggravation made by Mr. Bentham on her behalf. In my judgment, the appropriate order is for me to mark the court's displeasure at the scale of the husband's contempt by sentencing him to imprisonment for six months. However, the warrant for his arrest and incarceration will be stayed provided that he pays £500,000 by 4p.m. on 17^th December and provided that also by that date he complies fully with para.3 of my order of 13^th October. The fact that he may by then have fully complied with the order may mean that his answers to the first two parts, why he has not complied and his process for compliance, would be extremely short and would say no more than, "I have complied". But nonetheless he should still comply with my order that requires a disclosure of his financial circumstances, particularly where my order of 26^th February provides for the next instalment, namely £1.7million, to be paid by 4p.m. on 26^th February 2015.
13. I would invite Mr. Bentham to produce an order for suspended committal in the new form. The procedure will be that I will authorise the execution of the warrant if I receive an affidavit, signed by the wife or her solicitor, on 18^th December which states that the terms of suspension have not been complied with.