Symes v Jonathan Guy Anthony Phillips & Ors [2005] EWCA Civ 533

Case No A3/2005/0227 & 0228[2005] EWCA Civ 533
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT – CHANCERY DIVISION
MR JUSTICE PETER SMITH
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday, 6 May 2005
Before
LORD JUSTICE PILLLORD JUSTICE LONGMORE
Between
ROBIN JAMES SYMESAppellantJONATHAN GUY ANTHONY PHILLIPS & ORSRespondents
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR R TAGER QC & MR A BODNAR (instructed by Messrs Hughmans) for AppellantsMR A STEINFELD QC, & MR J STEPHENS & MR N MCLARNAN (instructed by Messrs. Lane & Partners) for Respondents
Judgment
[1]This is an appeal by Robin James Symes (“the appellant”) against an order of Peter Smith J made on 21 January 2005 committing him to prison for 24 months.[2]The appellant has been committed in the course of litigation which arose out of his former partnership with Mr Christo Michailidis (“Christo”), the brother of the claimant Ms Despina Papadimitriou. The other claimants are the administrators of the estate of Christo. The claimants commenced proceedings against the appellant and others on 27 February 2001 on the ground that there had been a partnership at will between him and Christo which was dissolved by Christo’s death on 5 July 1999. Until January 2003, the appellant denied that there was a partnership between him and Christo, who was, he claimed, merely an employee and friend. Following that date, the appellant contended that, while there had been a partnership, the normal principle of the assets being held in common did not apply but that the partnership’s assets were held jointly and, on Christo’s death, passed to the appellant.[3]The appellant claimed that the wealth of the partnership was generated by the business of Robin Symes Limited (“RSL”) through which he bought and sold objets d’art and antiquities. He claimed that he and Christo owned a Greek island although ownership was held in the names of various offshore companies.[4]On 27 March 2003, the appellant was declared bankrupt on the petition of his former solicitors. As a result of the appellant’s failure to provide disclosure, Peter Smith J struck out his defence and counter-claim on 4 April 2003 and entered judgment in default. Conventional consequential orders were made.[5]When proceedings had been commenced on 27 February 2001, Timothy Lloyd J made orders appointing receivers and requiring the appellant to answer questions about assets which the claimants asserted were partnership assets or assets of RSL. The judge also made an order establishing an interlocutory regime, later described by Peter Smith J as a tough regime because it policed the sale of the alleged assets of the partnership while the dispute continued. Because of his expertise, it was thought better to allow the appellant to run the business, provided his conduct of the business was regulated. The appellant was required to provide information about the proceeds of any sale of a valuable collection of art deco furniture, known as the Eileen Gray Collection, in the house the appellant had shared with Christo in Chelsea.[6]Before the proceedings were commenced, the appellant had commenced proceedings with respect to the matters in dispute in Greece. However, Hart J refused to stay the English proceedings. A Greek court has subsequently made a finding that the Eileen Gray furniture belongs to Christo but that is not relevant to the present committal.[7]It is not necessary for present purposes to describe in detail the many interlocutory applications, hearings and orders. A suspended sentence of one year’s imprisonment was imposed by Peter Smith J on 22 May 2003 on the ground, as the judge put it, in the judgment on 21 January 2005, that the appellant had been “caught out on a serious breach of that interlocutory regime.” The appellant had given undertakings on 22 May 2003 and the judge added that the appellant had “secured the avoidance of an immediate sentence of imprisonment by giving these undertakings”.[8]Mr Tager QC, for the appellant, accepts that, before Peter Smith J, various serious breaches of court orders and undertakings were admitted by the appellant and those admissions stand. The appellant’s submission is that he was deprived of a fair hearing. Reference is made to Article 6 of the European Convention on Human Rights. He does not, however, seek remission to the High Court of the application for committal. It is accepted that the imposition of a term of imprisonment was inevitable. The appropriate way for this court to compensate for the procedural defects before the judge, it is submitted, is to order that the period of imprisonment be reduced substantially and to amend the judge’s order in other respects to which I will refer.[9]As to the remedies available when a breach of the defendant’s right to a fair trial is established, Mr Tager relies on the judgment of Lord Bingham of Cornhill in Attorney General’s Reference (No 2 of 2001) [2004] 2 AC 72, with which the majority of the Panel agreed, at paragraph 24. The right involved in that case was the right to a timely hearing but the principles apply, in my view, to breach of the right to a fair hearing in contempt proceedings when remission is not sought:
“If, through the action or inaction of a public authority, a criminal charge is not determined at a hearing within a reasonable time, there is necessarily a breach of the defendant’s Convention right under Article 6(1). For such breach there must be afforded such remedy as may (section 8(1) [of the Human Rights Act 1998]) be just and proportionate or (in Convention terms) effective just and proportionate… The appropriate remedy will depend on the nature of the breach and all the circumstances. If the breach of the time requirement is established retrospectively after there has been a hearing, the appropriate remedy may be a public acknowledgement of the breach, a reduction in the penalty imposed on a convicted defendant, or the payment of compensation to an acquitted defendant.”
It is common ground that contempt proceedings are criminal proceedings for the purposes of Article 6. The Order and judgment of 21 January 2005[10]The claimants’ application to the Court, which led to the order of 21 January 2005, was based on: “(1) Mr Symes’ failure to comply with Undertaking 8 as embodied in the Order of 22nd May 2003, namely his failure to reveal the true source of the funds used by Lombardi to discharge RSL’s indebtedness to Credit Agricole Indosuez (“CAI”). It will be recalled that Mr Symes has claimed that the funds were a gift to him from a lady called Hersa Hamad Aisa Fdala, whom the Claimants have been wholly unable to trace, and who is, they submit, a mere figment of Mr Symes’ imagination. As will be explained below the true source of those funds was in fact the collection of art deco furniture by Eileen Gray (“the Eileen Gray Collection”) owned by the Michailidis/Papadimitriou family and stolen by Mr Symes in March 2000, the proceeds subsequently having been laundered through two Liechtenstein trusts or companies and a newly formed BVI company (Lombardi) with a bank account in Gibraltar. The substance of this aspect of the matter lies in Mr Symes’ failure to honour Undertaking 8 by revealing the true source of Lombardi’s funds, but the reality is that it also goes right back to the commencement of these proceedings and arises in the context of –• Mr Symes’ failure to provide details of what happened to the proceeds of sale of the furniture as required by para 14(b) of the Order of Lloyd J. of 27th February 2001,• The untruthful statement in his 2nd and 5th Affidavits when he said that the Eileen Gray Collection had been sold for just $4.4m, and• The similarly untruthful statements in his 13th and 20th Affidavits when he said that the monies used to discharge RSL’s debt to Credit Agricole had come from Ms Hersa Hamad Aisa Fdala. (2) In the Summer and Autumn of 2003 Mr Symes sold to Sheikh Al-Thani for $3 million a statue of the Pharaoh Akhenaten (“the Akhenaten”) despite that statue being –• The property of RSL and a Relevant Chattel, and• The sale thus being in breach of the Interlocutory Regime first put in place by Hart J on 7th March 2001, and still in force. (3) Again in breach of the Interlocutory Regime it had become apparent prior to August 2003 that Mr Symes had engaged in wholesale breaches of the Interlocutory Regime by failing to disclose the existence of a number of objects in New York and by subsequently moving them from one location to another.”• Mr Symes’ failure to provide details of what happened to the proceeds of sale of the furniture as required by para 14(b) of the Order of Lloyd J. of 27th February 2001,• The untruthful statement in his 2nd and 5th Affidavits when he said that the Eileen Gray Collection had been sold for just $4.4m, and• The similarly untruthful statements in his 13th and 20th Affidavits when he said that the monies used to discharge RSL’s debt to Credit Agricole had come from Ms Hersa Hamad Aisa Fdala.• The property of RSL and a Relevant Chattel, and• The sale thus being in breach of the Interlocutory Regime first put in place by Hart J on 7th March 2001, and still in force.[11]The Court order provided: AND IT APPEARING accordingly to the satisfaction of the Court that the 1st Defendant – a) has been guilty of contempt of Court in that in his 8th, 13th, 20th and 25th Affidavits he made false statements which he verified as being true that the true source of funds used to discharge a facility granted to the 2nd Defendant [RSL] by Credit Agricole Indosuez was money provided by way of gift by a lady whom he identified as one Hersa Hamad Aisa Fdala without having an honest belief in the truth of those statements. b) has been guilty of contempt of Court in that he failed to reveal the true source of the funds referred to at sub-paragraph (a) above as required by undertaking 8 of the undertakings given to the Court on his behalf on 22 May 2003 and set out in the schedule to the Order of that date and is accordingly in breach of the condition pursuant to which the sentence of one year’s imprisonment imposed on that date for the further contempt of Court referred to in that Order was suspended, and c) has been guilty of a further contempt of Court in causing or permitting the sale of a statue of the Pharaoh Akhenaten belonging to the 2nd Defendant by a contract in writing dated 14th August 2003 in breach of the 1st Order of Mr Justice Hart of 24th July 2002. IT IS ORDERED THAT – 1. In respect of the contempt of Court recited at sub-paragraph (a) above there be no order (having regard to the sentence of imprisonment imposed below for breach of the undertaking there referred to). 2. For breach of the undertaking recited at sub-paragraph (b) above the 1st Defendant be committed to one of Her Majesty’s Prisons for a period of nine months. 3. Without prejudice to any application that the Claimants might hereafter make in regard to any alleged failure on the part of the 1st Defendant to comply with any of the other undertakings given to the Court on 22nd May 2003, there be no Order lifting the suspension of the sentence of imprisonment imposed by that Order. 4. In respect of the contempt of Court recited at sub-paragraph (c) above the 1st Defendant be committed to one of Her Majesty’s Prisons for a period of fifteen months. 5. The said sentences of imprisonment referred to at paragraphs 2 and 4 above do run consecutively. IT IS ORDERED THAT – The appellant was ordered to pay the costs of the application on an indemnity basis. An interim payment on account in the sum of £1,000,000 was ordered.

IT IS ORDERED THAT –

[12]The judge gave a detailed judgment explaining his conclusions. At paragraph 25, the judge referred in these terms to a witness statement made by the appellant on 14 January 2005:
“The undertaking and the confession affidavit was therefore a culmination of years of deliberate lies by Mr Symes and a calculated cause of action on his part designed to conceal that he had deliberately taken the proceeds, used them for his own purpose and concealed matters. This is reinforced by his concealing of the Lombardi facility and his persistence in the correctness of the story right up until last Friday. He only confessed after he failed to obtain an adjournment on Thursday. When he addressed me on Thursday he was apparently having typed a confession as set out in the witness statement. He therefore on Thursday cynically maintained the appearance of not lying in the hope of obtaining an adjournment and only came clean when the adjournment was refused. This I regard as a serious and cynical contempt of court.”
At paragraph 50,

the judge stated:

“I am not impressed by Mr Symes’ attempts to suggest that he is confused and muddled and does not know what is going on. The admitted contempts show calculated, cynical and well understood acts of deception. They are not the actions of a man who is muddled and confused. They were, as I say, deliberately orchestrated frauds perpetrated against the claimants, flouting of the orders of the court, and calculated solely to achieve financial benefits for Mr Symes.”
[13]The judge stated at paragraph 45 that the sale of the Akhenaten statue was a “very serious contempt” and “plainly in breach of the interlocutory regime as Mr Symes well knew”. At paragraph 46, the judge added:
“In addition to of course the serious contempt that Mr Symes holds for court orders, an assets worth at least $3 million has been removed from the available realisations of RSL’s assets. So by two sales [the other was the Granodiorite statue] Mr Symes has caused the removal of in excess of $6 million from the claimants and all the other companies’ creditors.”

The judge’s conclusions were:

“51. Mr Symes is in contempt in that he has broken undertaking 8 that he gave to me on 22nd May. Second he is in contempt and in breach of the interlocutory regime imposed by the order of Hart J on 24th July 2002 by the sale of the Akhenaten statue. Third, he has broken the conditions upon which the order of imprisonment was suspended, namely he has failed to comply with undertaking 8. The two contempts are serious. The courts made orders to protect claimants and in those orders, like the interlocutory regime, they provided checks and balances to enable a claimant’s legitimate right to preserve assets not to be used as a method of oppression. The interlocutory regime enabled Mr Symes to carry on the business and to sell objects during that business provided he sold them openly and for a proper price. Mr Symes chose deliberately on these two occasions at least not to do so. 52. He has therefore treated the orders as some things which he can ignore, despite being thrown a lifeline by the order of 22nd May in the sense that he was not sent to prison immediately but merely gave undertakings as to future good behaviour. He then chose to embark upon a further course of action within days of breaking that undertaking by providing a repetition of a false story and a matter of weeks later participating in a sale, possibly even during the course of the hearing in May, which was going to be a breach of the interlocutory regime of precisely the same type that he was then currently being sentenced for. The only time he has expressed any remorse is in his latest witness statement which, as I have said, arrived only after he failed to obtain an adjournment maintaining the same stance the day before. In addition, he has led the claimants on a very expensive merry dance. 53. It is important that the courts provide effective sanctions for breaches of interlocutory regimes like this. Interlocutory regimes like this only work if people comply with them. They are now of a sophisticated nature so that they cannot be used as oppressively as they were when they first came to be used by the courts but if people choose deliberately to ignore them, they can only expect serious consequences to be visited upon them. 54. I regard the Akhenaten sale as the more serious of the two breaches. I accordingly sentence Mr Symes to a period of 15 months imprisonment for breach of that interlocutory regime by that sale. The undertaking breach is also serious but not quite as serious as the deliberate sale of the Akhenaten. For that lesser breach I sentence Mr Symes to a period of imprisonment of nine months to be served consecutively to the period of 15 months making two years in total. 55. As I said earlier in this judgment, I indicated yesterday that I was going to implement the suspended sentence consecutively. I cannot do that. There has been a breach of the conditions upon which the suspended sentence was suspended. To activate it now would only benefit Mr Symes because it would then merge in the two year sentence and would mean that Mr Symes would be lifted from any further continuing obligations in respect of those undertakings and conditions. 56. Given the fact that it is clear that the claimants do not accept he has yet complied with all of those conditions I do not think it is appropriate that Mr Symes should obtain the benefit of a wiping out of that suspended sentence regime in this way. I have accordingly decided to make no order lifting the suspension of the sentence of imprisonment and the regime of my order of 22nd May 2003 remains in place. I draw the attention of Mr Symes expressly to the fact that I could have lifted it today and that there are matters that are still outstanding. It follows that if the claimants wish further to bring that to the court at a future date and establish there are further breaches, then they will be in a position so to do. If that is correct then it is inevitable that that suspension will then be lifted. ”
General mitigation[15]Mr Tager submits that, quite apart from the alleged unfairness of the hearing before the judge, the sentence was too long having regard to the appellant’s age, 66 years, his poor medical condition, the fact he has already been made bankrupt and the relief the claimants have already had in these proceedings. The appellant claims that his actions have amounted to stupid, impulsive behaviour by a desperate man at the end of his tether, and not as described by the judge. Mr Tager refers to other contempt cases and submits that sentences as high as this one are generally reserved for cases where the court is seeking to coerce a defendant into compliance. The application to adjourn[16]As to the trial, it is submitted that, at the hearing, the appellant was suffering from pneumonia. He did not fully understand the proceedings. He was not represented and had insufficient opportunity to prepare and present his case, a problem compounded, it is submitted, by the way in which the judge conducted proceedings. The appellant’s application for legal aid had been referred to the Special Investigations Unit (“SIU”) and the hearing should have been adjourned pending its determination. While it is accepted that the appellant had been referred to a solicitor in July 2004, that is six months before the hearing, and there had already been an adjournment of the committal application in September 2004, the position was different on 13 January 2005 because of steps by then taken by solicitors in an attempt to obtain funding.[17]It is common ground that the refusal of legal aid and the subsequent decision of the Legal Services Commission following the investigation by their SIU was solely on financial grounds and did not relate to the merits of his case. The extent of and his access to his assets was in issue. The grant of legal aid once the appellant was imprisoned was, we are told, not because of the fact of imprisonment but because of the termination of social security payments when imprisonment was ordered. The hearing should have been adjourned, it is submitted, because of the ill-health of the appellant, his difficulties in presenting a case and to allow the application for legal aid finally to be determined.[18]I am not able to accept those submissions. Having regard to the background to the events of January 2005, the judge had been placed in a difficult position largely as a result of the conduct of the appellant and his failure to take action earlier in his own interests. When the judge adjourned the application for committal until January 2005, he indicated that he would not be likely to accede to any further applications for adjournment. In refusing an adjournment in a judgment given on 13 January 2005, the judge considered the situation carefully. Counsel appearing for the appellant accepted, as he had to, that a timetable had been set and the appellant had taken no action on it. The judge had formed the view that the appellant’s prospects of obtaining public funding were remote.[19]While the appellant was (and has continued to be) in poor health, there is no evidence that he was suffering from pneumonia at the time of the hearing. He was examined by a doctor at the Savoy Hotel on 20 January 2005 and on admission to prison on the following day. The appellant received legal assistance pro bono. While the transcripts of the hearing reveal that he was at times at cross-purposes with the judge as to what he could and could not do, there is every indication that his comprehension was intact.[20]At one stage

the judge put to the appellant as an alternative course of action for him:

“You can say I am not prepared to give any evidence on the committal application. In which case, I will determine the hearing as evidence first and I shall determine it solely on the evidence that the claimants have adduced. That means that your witness statement will not be entertained by it”
. It would not, with respect, have been a proper course to decline to entertain the appellant’s witness statement but the judge does not appear to have persisted in that stance, which may have arisen as the result of a misunderstanding between him and the appellant.[21]In my judgment, the judge was entitled to exercise his discretion to proceed with the application for committal and this court should not interfere with it. It was, however, important that the judge be patient in his treatment of the appellant and ensure that the procedure followed was in no way unfair to him. The Slade Proceedings[22]Apart from the alleged unfairness resulting from the above, the appellant makes two specific complaints. First, the judge should not have conducted the contempt hearing having conducted, in 2004, what have been described as the “Slade proceedings”.[23]Mr Richard Slade was the appellant’s former solicitor. On 26 March 2004, the claimants applied to Peter Smith J, without notice to the appellant, for a disclosure order against Mr Slade for:
“(a) Information relating to a statue of Akhenaten including its location and the proceeds of sale if it has been sold. (b) The identity of the persons who have found or delivered or disclosed three caches of objects and their former or current whereabouts .…. (d) Any other information relating to any other Relevant Chattels as defined in the 1st Order of 24th July 2002 made in the action Phillips and Others v Symes and Others HC0100810.”
[24]In the course of the hearing Mr Slade was cross-examined for one and a half days. The claimants were granted an injunction prohibiting Mr Slade from informing anyone, especially the appellant, of the existence of the proceedings or of the Order made in them. In a witness statement dated 30 March 2004, Mr Slade referred to the possibility that the information sought from him might reveal further contempts by the appellant. He stated:
“In those circumstances… the court will wish to consider whether it is appropriate to override privilege… and order me to disclose information that might be used against Mr Symes on an application to commit him for contempt. Mr Symes might point out that if he is not to be compelled to give evidence on such an application it is equally inappropriate to order his former solicitor to disclose Mr Symes’ instructions, which might then be used against Mr Symes on an application to commit for contempt. Mr Symes might contend that to do so would at least partially undermine the order of the Court of Appeal [confirming the appellant’s privilege against self incrimination].”
[25]Giving his ruling on 31 March 2004,

the judge stated:

“Now in the present case, having seen the information, I am quite satisfied that the claimants have made out a strong case that Mr Symes has, by fraudulent conduct, sought to conceal the whereabouts of assets which are partnership assets. It is also clear that Bracher Rawlins and Mr Slade in particular might well have in their possession information that might assist the claimants in their legitimate recovery of assets which have been hidden away by Mr Symes. It is therefore right as a matter of principle in my judgment that the case is made out for an Order of the type sought by the claimants.”
The judge then referred to the claimants’ acceptance that documents disclosed “should be redacted so that no reference is made to any advice sought or any advice given”. He referred to the prima facie case that the appellant had fraudulently concealed assets so that there was no “question of the privilege being capable of being invoked by Mr Symes as an answer to the claimants’ present application.” The claimants undertook not to use information and documents disclosed for the purposes of any application for committal, without first having the permission of the court.[26]On 11 June 2004, the judge heard an application by the claimants alleging that Mr Slade had breached the terms of the order by disclosing the existence of the proceedings to the appellant’s trustee in bankruptcy. In the course of his ruling on that application, the judge referred to considerable further information which had emerged in relation to the Akhenaten statue. The judge stated: “none of this was known by the claimants until it was revealed principally in Mr Slade’s first affidavit”.[27]On 15 December 2004, the claimants applied to the judge for permission to use the disclosed information concerning the Akhenaten statue to bring proceedings against the appellant and others for recovery of the proceeds of sale. In the course of argument, the judge referred to the possibility of material having been obtained which the claimants might want to use in the contempt proceedings. Mr Steinfeld QC, for the claimants, stated: “it may be that we have to make an application in January in that regard”. (The contempt proceedings had by then been fixed for January).[28]In his judgment on 21 January 2005, the judge also referred in detail, at paragraph 30, to the appellant’s assertions, in February 2003, as to the ownership of the Akhenaten statue. Mr Tager submits that these remarks further demonstrate the perceived relevance of the enquiries about the statue in the Slade proceedings to the contempt proceedings against the appellant.[29]Mr Steinfeld agrees that it was an irregularity for the same judge to have heard both the Slade proceedings and the contempt proceedings. He submits, however, that the irregularity did not deprive the appellant of a fair hearing because the material disclosed in the Slade proceedings was not in the event material evidence in the contempt proceedings. The new material which emerged was in relation to the purchaser of the statue and not the appellant. Mr Tager submits that Mr Slade’s evidence was inevitably material to the judge’s task in the committal proceedings. At lowest, it was relevant to demonstrate the extent of the appellant’s alleged mendacity.[30]The same judge should not in my judgment have heard both the contempt proceedings and the Slade proceedings. These were proceedings, conducted in the appellant’s absence and without his knowledge, involving prolonged and detailed enquiries into the whereabouts of, and dealings with, the Akhenaten statue and other chattels subject to the interlocutory regime. These enquiries were intended to and were almost bound to throw light on conduct of the appellant relevant to the assessment of the action to be taken against him for contempt of court if an application was made. The objection to the procedure is not removed by the suggestion that it was the conduct of others on which in the event light was thrown. The impact on the judge may have been less than it might have been; the unfairness was patent. Moreover, this court should not be in the position of having to conduct an inquiry into the likely impact of one proceeding conducted by a judge upon another proceeding he subsequently conducted.[31]I can understand the reluctance of a judge entrusted with the present litigation to recuse himself from hearing one aspect of it but the judge should have recused himself from the Slade proceedings if he intended to continue with the action at all. Norwich Pharmacal[32]The Slade proceedings arose out of the claimants’ enquiries into transactions involving the Akhenaten statue. They were instituted under the principles explained in Norwich Pharmacal Co.Ltd v Customs and Excise Commissioners [1974] AC 133. In written submissions to this court it was stated: “It was in those circumstances that the [claimants] brought Norwich Pharmacal proceedings against Mr Slade. The object of those proceedings was to obtain from Mr Slade, as a person innocently involved in “wrongdoing”, information as to the whereabouts of the Akhenaten and/or the proceeds of its sales. An Order requiring such disclosure was duly made at an inter partes hearing at which the learned Judge’s attention was drawn expressly to the issue of potentially privileged material being disclosed, and to an authority that indicated that privilege was not maintainable in these circumstances.” [The parties referred to are the claimants and Mr Slade][33]In the course of the hearing, I became concerned about the question of privilege between Mr Slade and his client the appellant and I asked to see the authority, referred to, Aoot Kalmneft v Denton Wilde Sapte [2002] 1 Lloyd’s L.R. 417. That request has given rise to lengthy post-hearing written submissions, particularly from Mr Millett QC (Mr Steinfeld being unavailable), on behalf of the claimants. I do not propose to consider in detail the propriety of the Norwich Pharmacal application because that application is relevant to the present appeal only in the manner already considered. However, quite apart from finding that the same judge should not have heard that application and the present one, I do not want to be regarded as approving the test adopted by Peter Smith J in these proceedings based on the brief but general statement of His Honour Judge McGonigal, sitting as a Deputy High Court Judge, when dealing with the question of privilege in the present context, as expressed in paragraph 19 of his judgment in Kalmneft. Judge McGonigal stated that “the privilege does not protect the client where the documents had come into existence in the course of a fraud”. In his judgment in the Slade proceedings on 31 March 2004, Peter Smith J stated, at paragraph 12:
“… there is a prima facie case that Mr Symes has fraudulently concealed assets, the whereabouts of which he ought to have located before. There is therefore to my mind no question of the privilege being capable, of being invoked by Mr Symes as an answer to the Claimants’ present application.”
[34]The relevant principles were stated in O’Rourke v Darbishire [1920] AC 581. At page 613, Lord Sumner stated:
“No one doubts that the claim for professional privilege does not apply to documents which have been brought into existence in the course of or in furtherance of a fraud to which both solicitor and clients are parties. To consult a solicitor about an intended course of action, in order to be advised whether it is legitimate or not, or to lay before a solicitor the facts relating to a charge of fraud, actually made or anticipated, and make a clean breast of it with the object of being advised about the best way in which to meet it, is a very different thing from consulting him in order to learn how to plan, execute, or stifle an actual fraud.”
Viscount Finlay stated, at page 604:
“But it is not enough to allege fraud. If the communications to the solicitor were for the purpose of obtaining professional advice, there must be, in order to get rid of privilege, not merely an allegation that they were made for the purpose of getting advice for the commission of a fraud, but there must be something to give colour to the charge. This statement must be made in clear and definite terms, and there must further be some prima facie evidence that it has some foundation in fact. It is with reference to cases of this kind that it can be correctly said that the Court has a discretion as to ordering inspection of documents. It is obvious that it would be absurd to say that the privilege could be got rid of merely by making a charge of fraud.”
[35]I am not satisfied that the issue of legal professional privilege, or the test to be applied, were sufficiently addressed at the Norwich Pharmcal hearing before Peter Smith J. To say, as the claimants now do, that “privilege was claimed and discussed in the course of Mr Slade’s cross-examination but it was the privilege of Mr Slade and not of Mr Symes” merely highlights the problem. However, having expressed that reservation, I do not propose to consider the detailed arguments raised by Mr Millett any further, for the reason he himself gives, that the correctness of the Norwich Pharmacal order is of very limited relevance in this appeal.[36]That the judge was likely to have come into possession of information in the Slade proceedings which would be relevant in the present proceedings is not in my view in doubt, however. Mr Slade was in close contact with his client the appellant at the material time. He was receiving information from him and evaluating it, as emerges from Mr Slade’s written evidence in the Slade proceedings, disclosed by the claimants. He was also conferring with Counsel. Cross-examination about Mr Slade’s “personal role in the Akhenaten affair” and “finding out what Mr Slade himself knew of the Akhenaten transaction,” the subjects of his cross-examination, would inevitably throw light on the appellant’s own conduct.[37]Mr Slade was placed in a difficult position. It was not suggested on behalf of the appellant that he acted other than with complete propriety. The interview of the appellant[38]The second of the specific complaints is in relation to the judge’s decision, in the course of the hearing, to set aside a day, 17 January 2005, to enable the appellant to attend upon the claimants’ legal representatives with a view to providing such further information as he was able and willing to provide on a number of issues.

The judge stated:

“This is an entirely voluntary exercise and the claimants will be entitled to take notes of it. They cannot use it at any committal proceedings and it shall not be adduceable in evidence on the resumed hearing on Thursday because the only non-committal application outstanding is really paragraph 8 and that is already admitted. If you co-operate, the fact that you have co-operated is something that the court will take into account in any sentence it decides to impose by reason of the breaches. I am not going to get into an argument about whether or not there has been co-operation. In other words if everybody meets and we just have a big row then I will take the view that it is neutral, it does not count against you and does not count for you, but if there is genuine co-operation and the claimants perceive it as such then that will be taken into account. But as I have said, I am not going to have an argument. If you say you co-operated and they say you have not I am not going to get involved in a big argument about that.”
[39]The interview lasted from 11:15am until 5:30pm, with a number of breaks. It is clear from what happened subsequently that Mr Steinfeld was under the impression that the judge would consider the transcript of the interview with a view to deciding what, if any, co-operation the appellant had given to the claimants. That was relevant to mitigation. The appellant claimed that he had co-operated at interview.[40]In the event, at the resumed hearing on 20 January, the judge did not look at the transcript of the interview. He stated that he might “read things there which it would not be appropriate for me to read”. The judge stated:
“What I said on Tuesday was that I would not entertain any argument about whether or not he had complied. The position as I see it is that your clients have not received, I suspect from your submissions, details of any further assets from Mr Symes. Therefore, there are not mitigating circumstances to suggest that he has revealed other matters as a result of that meeting. Is that a fair summary?”
[41]It is submitted that, in permitting the claimants to decide the extent of the appellant’s co-operation, the judge damaged his right to a fair hearing. The extent to which a willingness to co-operate was shown was a relevant consideration and the actual utility to the claimants of information provided to them by the appellant was not the only consideration. This approach was adopted against a background in which, for example, Neuberger J had stated at an interlocutory hearing on 1 May 2001 that “whatever Mr Symes says, the claimants will never believe him”.[42]Mr Steinfeld claimed that “Mr Symes did not convey any further information whatsoever which would have assisted in the location of any of the necessary objects”. The appellant took issue with that.[43]Following the judge’s statement already cited, there followed a discussion which ended with the judge saying that he did not see that he needed to hear any more. The judge had not attempted to evaluate the conduct of the appellant or the information he claimed to have provided.[44]The procedure followed was not satisfactory in my judgment. Having adjourned the hearing to allow a full day’s interview and cross-examination of the appellant by Mr Steinfeld, with a shorthand note being taken, the judge did not consider the note or in any way evaluate the conduct of the appellant as revealed at interview. Such evaluation was plainly relevant to sentence and mitigation. Moreover, the utility to the claimants of information provided could not be the only factor in assessing co-operation, a truthful denial of knowledge might also be relevant to that. The judge left the entire evaluation to the party seeking committal. The judge’s indication[45]When the hearing before the judge resumed on 20 January, Mr Steinfeld has also told this court that he was expecting to address Peter Smith J for a day or two on the committal application. The judge, however, intervened to shorten matters. He stated:
“On the admissions it is difficult to see how the sentence would be less than two years in addition to the lifting of the suspension making three years in total. Is anything to be gained from going through more matters at this stage when it might be thought that it is always open to somebody sentenced for contempt to seek to have the contempt purged? Given those admissions, if Mr Symes goes to prison for that period of time he might well think about his position in other aspects of the case a little more seriously than he apparently does at the moment.” and added: “That is why I am reluctant, at this stage, for the reasons that you set out in the skeleton argument to deal with any other further contempt so that Mr Symes can simply say I will do 18 months time and that is the end of it because it is not. I see no point in spending the court’s time going through dealing with other matters when they can be adjourned and Mr Symes can consider his position in a more secure environment.”
[46]The judge had been reminded of the provisions of the Contempt of the Court Act 1981 (“the 1981 Act”), to which I will refer. Before adjourning, the judge stated:
“What I am going to do is I am going to deliver judgment at 10 o’clock tomorrow. The judgment will explain my reasons why I think it is appropriate that tomorrow you go to prison for a total of three years and I will set these out in my judgment tomorrow. I am doing it tomorrow because I want you to have an opportunity to organise your affairs, bearing in mind that I am going to send you to prison tomorrow for that period of time. I am also, as I have said to Mr Steinfeld, adjourning the other contempt application in relation to the movement of chattels. The reason why I am doing that is because I do not believe you, Mr Symes, in respect of those matters, and those matters will, if appropriate, be revisited.”
[47]The judge exhorted the appellant to co-operate with the claimants saying that there was an easy way and a hard way. As he recognised when giving judgment on the following day, the judge could not on one occasion impose a term of imprisonment exceeding two years.[48]Section 14 of the 1981 Act provides that the term imposed “shall not on any occasion exceed two years in the case of committal by a superior court …” Mr Tager submits that the suspended sentence of 12 months imprisonment imposed on 22 May 2003 should not have been left in existence, as it was by paragraph 3 of the order of 21 January 2005. The judge had indicated that he would have activated it consecutively had that not involved exceeding the maximum sentence provided by Section 14 of the 1981 Act. The judge’s reasoning is in paragraphs 55 and 56 of his judgment cited above. Mr Tager also submits that it was wrong to leave other alleged contempts unresolved when the reason for doing so was that proof of them would not increase the sentence imposed on this “occasion” and that they should be left over with a view to a future application or applications.[49]The judge’s intention to save time was in itself an admirable intention but it is necessary to consider the implications of the decision he took upon the order he made. Matters left unresolved[50]Mr Steinfeld submits that the judge had a discretion, with which this court should not interfere, to leave the suspended sentence in operation and the further alleged contempts unresolved but still alive. If this court reduced the sentence imposed by the judge for the admitted contempts, the claimants should have the opportunity then to return to the High Court to apply, on the basis of the unresolved contempts, for a further committal up to the overall maximum of two years, which Mr Steinfeld accepted would still apply.[51]In Villiers v Villiers [1994] 1 WLR 493, Sir Thomas Bingham MR considered suspended sentences in the context of contempt proceedings under the 1981 Act. The Master of the Rolls referred at page 498D, to the principle to be drawn from the decision in Re W(B)(an Infant) [1969] 2 Ch. 50:
“… It emerges clearly from the judgments of Lord Denning MR and Russell LJ with which Winn LJ agreed that the court is not obliged to activate a suspended sentence upon mere proof of breach of the suspensory condition. The judge has a discretion, taking into account both the past and the current situation and the gravity of the breach, either to activate the original sentence or to impose a reduced sentence or a fine or not to punish at all. In other words there is nothing automatic about the activation of a suspended sentence, and it involves an exercise of judicial judgment on the occasion when the issue of activation arises.”
[52]At page 499E, the Master of the Rolls stated:
“Mr Munby, in the course of his submissions, has drawn attention to a number of situations which could give rise to argument and difficulty. For example, he has indicated that a judge might sentence for one contempt in the morning and another in the afternoon, or for one contempt one day and another contempt the next day in the belief that by doing so he would not be imposing the sentences on one occasion. I could imagine circumstances in which this court would have little hesitation in holding that there had been a manipulation of the timetable such as to amount to an abuse of process. On the other hand, where, in the ordinary course, different contempts came before the court on different occasions and without any manipulation of the timetable it may be that cumulative sentences of more than two years could be justified. But it is, I think, clear as I have suggested, that a contemnor must not, on any occasion, leave the court subject to a sentence of more than two years. If in doubt as to whether an occasion is to be treated as a single occasion or more than a single occasion it is incumbent on any judge in such a position to bear in mind the statutory provisions and the obvious object of the statutory provision and bear in mind also the duty of fairness which is owed to any contemnor.”
[53]I agree with Mr Tager that the course adopted by the learned judge amounted, with respect, to a use of the timetable in a way which was unacceptable in the light of Villiers. The judge first wished to impose a sentence longer than what emerged during submissions to be the maximum permitted by law. He left the suspended sentence in operation and declined to deal with the other contempts alleged, on the basis that a future application could be made with respect to them and a further sentence achieved. The application which led to the two year sentence relied on all alleged breaches before the judge and the breach of undertaking given when the suspended sentence was imposed. Given the judge’s approach to the issues, motivated as it was by the constraint placed upon him by the maximum sentence, it was, in the circumstances of this case, wrong to leave over for possible future activation the suspended sentence and consideration of the other breaches of alleged contempts.[54]When a comprehensive application such as the present one is made and a substantial sentence of imprisonment contemplated and imposed, it would, in my judgment, normally be wrong to leave matters over in that way. If the maximum sentence is insufficient, which in my view in this case it was not, the remedy would be in a statutory or other power to imprison for a longer period and not the procedure followed here. I do not, however, exclude the possibility that circumstances could arise in which it may be appropriate to leave over consideration of alleged contempts.[55]In my judgment, the other contempts alleged and not pursued should not be proceeded with upon a future application. As to the suspended sentence, I regard the choice as being between activating it concurrently with the existing sentence and discharging it. The better course in the circumstances, including the judge’s decision not to activate it, is to discharge it. The judge had already imposed a sentence of 9 months imprisonment for breach of an undertaking given when the suspended sentence was imposed. This conclusion does not mean that I disagree with the judge’s exhortation to the appellant to think very seriously about his future conduct in relation to this litigation. Clearly he should. Conclusions[56]There remains the central question: should the sentence be reduced? Mr Steinfeld submits that the requirements of punishment, coercion and deterrence all suggested a substantial sentence.[57]The judge was right to take a most serious view of the appellant’s conduct. The comments upon it in his judgment are justified. Conduct in breach of court orders and of undertakings given was pursued with ingenuity and persistence. Large sums of money were involved. A substantial sentence was required.[58]I readily acknowledge that the hearing was a difficult one for the judge not least because of the appellant’s approach to the entire proceedings and the perceived continuing lack of co-operation. Moreover, if, as I have found, the proceedings were in certain respects unfair, it is not easy to relate unfairness during the proceedings to the sentence to be imposed at their conclusion on the basis stated by Lord Bingham of Cornhill in Attorney General’s Reference (No 2 of 2001). The contempt may be no less serious because it was unfairly investigated.[59]A duty of fairness is, however, owed to any contemnor and the appellant has been deprived of the opportunity to have his mitigation fully explored and explored by a judge who has not heard potentially relevant evidence in his absence. It is also clear from an examination of the transcripts, particularly that of 17 January 2005 to which I do not propose to refer in any more detail, that when the judge was exploring with him the difference between denying an allegation and explaining admitted conduct, the appellant was struggling to explain himself. Moreover, notwithstanding the lateness of the admissions and the circumstances in which they were made, the appellant was in my judgment entitled to some discount from the maximum sentence because the admissions, which formed the basis for the sentence, were made.[60]Looking at the totality of the situation, and doing so on a broad basis, I have come to the conclusion that the appeal should be allowed to the extent of reducing the term from 24 months to 12 months. I would achieve that result by imposing consecutive sentences of 5 months on paragraph 2 of the Judge’s order of 21 January 2005 and 7 months on paragraph 4. In relation to the judge’s order, the conclusions already expressed will also have effect.[61]I agree with Pill LJ that the proceedings below were unsatisfactory in that:(1) the judge ought not to have heard both the proceedings against Mr Slade and continued to hear the proceedings against the appellant. It is occasionally necessary, after litigation against one defendant has begun, for proceedings to be brought against another defendant who has to be restrained from informing the first defendant of the existence of such second proceedings. If, in the course of such second proceedings, a judge learns something detrimental to the interests of the first defendant in his absence, it is (to say the least) a delicate question whether it can be appropriate for that same judge to continue hearing the first proceedings. This is a matter to which both claimants (who have instigated both sets of proceedings) and the judge must consider most carefully. There is no indication that the difficulty received the careful consideration which, in this case, it deserved;(2) the judge ought not to have encouraged the appellant to have participated in the meeting of 17th January 2005, in the course of the hearing, and then to have decided to have no regard to what happened at the meeting. I have no doubt that, in giving such encouragement, the judge was only trying to be helpful, but justice required that that assistance should have been followed up by an assessment of the degree to which (if at all) co-operation from the appellant was forthcoming.[62]I also agree that it was wrong to leave over the possibility of further proceedings in respect of the alleged contempts and to leave the suspended sentence untouched. That sentence should be discharged.[63]As to the question of privilege, I stand by what I said in Kuwait Airways Corporation v Iraqi Airways Co (No. 6) [2005] EWCA Civ 286, The Times 25th April 2005 but I do not regard that as in any way central to the disposition of the appeal.[64]I add a few words on the legal aid position, which I found troubling. It is remarkable that in 2003 a person can be sentenced to a term of 2 years’ imprisonment without the benefit of any legal representation when he wishes to have such representation. Yet that is what has happened in the present case to the 66 year old Mr Symes. We were told that but for the fact that Mr Symes’ state pension automatically ceased when he became a prisoner, the Legal Services Commission would have continued to have considered Mr Symes to be above the relevant limit for civil legal aid and that he would not have received any legal aid to pursue this appeal. Apart from this fortuitous circumstance we would not have had the assistance which Mr Romie Tager QC was able to give us for the purpose of the proper disposition of this appeal. This position is in stark contrast to the position of any defendant to a criminal charge who is entitled to criminal legal aid at his trial, the expense of representation (in the case of those who can afford to pay) being catered for by the possibility of a Recovery of Defence Costs Order after the trial is concluded.[65]In this case the difficulty comes about because the claimants (correctly as it turns out) have alleged that Mr Symes was in contempt of court and applied to the court for an order that he be punished for that contempt. The charge was thus not a criminal charge for the purpose of the relevant legal aid regulations and his case fell to be dealt with under the civil legal aid regulations. Nevertheless there are many parallels between a criminal charge and an allegation of civil contempt, the possibility of a prison sentence of not more than 2 years being one of the most obvious. It was, moreover, common ground before us that, as this court assumed in Berry Trade Ltd v Moussavi [2002] EWCA Civ 477 [2002] 1 WLR 1910 para. 31, civil contempt proceedings were criminal proceedings for the purpose of Article 6 of the European Human Rights Convention. We heard no argument to the effect that civil legal aid regulations were incompatible with Article 6(3) insofar as they failed to make provision for legal aid to be available to those liable to be committed to prison for civil contempt but it may perhaps be arguable, after the poll tax cases, that they are incompatible to that extent, with regard to a defendant who does not qualify for civil legal aid but does not have sufficient means to retain solicitors and counsel in a complex case, see Benham v United Kingdom [1996] EHRR 293 para. 6, and Beet and others v United Kingdom Application 47676/99, judgment 1st March 2005.[66]Neither the judge nor the applicants nor the Legal Services Commission were responsible for what I regard as this unfortunate state of affairs. So concerned were the applicants about the position that they procured the attendance of Mrs Schwarz of the Legal Services commission to explain to the judge why neither he nor the Commission could procure the grant of legal aid for Mr Symes. One only has to peruse the transcript of 15th December 2004 to see that the judge’s hands were tied and why he did not in January 2005 think it appropriate for the application to commit Mr Symes to be yet further adjourned for the possibly many weeks it would take for the Commission to consider the matter further. Any attack on the judge’s discretion in refusing an adjournment for this purpose was doomed to fail.[67]Having now heard Mr Tager’s argument, I do not consider that Mr Symes’ lack of legal representation in fact caused him prejudice, inasmuch as we have been able to ascertain and deal with errors in the judgment below.[68]As to the appropriate sentence, I agree with my Lord that two years was in any event too long by analogy with the criminal law principle that normally a defendant who pleads guilty should not be sentenced to the maximum sentence available for the offence. For that and the other reasons given by my Lord, I agree that the appropriate sentence is one of 12 months, constituted as he proposes.

Cited in 5 later judgments