28 JAN 2016

Parker J provides comprehensive review of the law and guidance on committal applications

Parker J provides comprehensive review of the law and guidance on committal applications
In W v H (No 2) (Contempt Contents of Application Notice) [2015] EWHC 2436 (Fam) Parker J provides a comprehensive review of the law and guidance on the subject of committal applications in her decision on a wife's application for committal in respect of the husband's alleged breaches of a lump sum order and undertakings.

The husband had failed to comply with the lump sum order made during financial remedy proceedings. He had provided share certificates as security to the wife's solicitors as per an undertaking he had given but had registered the shares certificates as lost and had them cancelled. He then sold the reissued shares.

The husband also failed to comply with an order requiring him to attend proceedings for enforcement, committal and a freezing injunction, and the wife claimed he had failed to provide sufficient evidence to meet the orders requiring him to provide specific information.

At the hearing the husband had asserted that the committal application was deficient as it lacked sufficient particularisation. Specifically, the wife had stated the paragraph numbers of the undertakings or orders allegedly breached without specifying their terms or in what manner they were apparently breached. The wife had, however, also served a draft order attached to the application, and she had ticked the box to highlight that she relief on an attached statement provided by the solicitor which was consistent with the application and further particularised allegations.

After reviewing the law set out in Harmsworth v Harmsworth [1988] 1 FLR 349 and FPR rule 37.10(3)(a) Parker J held that the particularisation of the allegations in the attached statement was insufficient. The application itself must include the pleaded assertions. There was an important distinction between the charges made and the facts supporting them. Attached evidence was to be used to prove the facts relied on to make out those assertions int he notice. While the level of particularisation was not defined in the riles, it was dependent on the complexity of the allegations.

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The judge emphasised that the procedural requirements were not a mere technicality. They went to the fundamental issue of whether enough information was given to permit the alleged contemnor to meet the charge.

In this case three of the four allegations were so simple that they could only have been breached in one way. Therefore, stating the terms of the orders that had allegedly been breached was sufficient in those cases. The undertaking to lodge the shared certificates as security could be breached in many ways. Therefore, without further detail, the notice provided by the wife had been insufficiently particularised.

An attached statement could not provide the particularisation required of a notice, but it could justify the waiver of a defect. Parker J held the principles of waiver were based upon the interests of justice and whether the alleged contemnor would suffer an injustice or prejudice. There was no longer a threshold of exceptionality and the court simply had to ask itself if the alleged contemnor had enough information to meet the charge. In this instance the failures to include dates in the notice and the lack of particularisation were cured. The documents served on the husband in their totality would have left him in no doubt as to the case he had to meet. It was also in the interests of justice that the defects be waived.

The husband was found to have breached all of the provisions alleged by the wife, including the undertaking to lodge the share certificates as security. Although he had physically lodged the share certificates, the undertaking had to be viewed in the context of its purpose. Lodgement was a continuing act and removing the power of the certificates to provide security by cancelling them constituted a breach. It was found beyond reasonable doubt that each of the breaches had been wilful. 

Parker J provided guidance on what information should be included in a committal notice including when reciting the order or undertaking breached would be sufficient on its own and when further detail was required. A warning was provided in relation to the drafting of undertakings. While drafting could not provide for all eventualities, clarifying the purpose of a provision and providing for obvious potential breaches was prudent.

In a subsequent judgment available here here Parker J sentenced the husband for contempt.

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