“15. Until further order of the Court, the First, Second, Fourth and Fifth Respondents must not move or in any way dispose of or deal with or diminish the value of: (1) any asset constituted by or derived from the whole or part of the transfers and bank payments identified in Schedule D to this Order as having been received by the relevant Respondent; and (2) any asset constituted by or derived from the transactions listed in Schedule E to this Order (Such assets shall be referred to in this order as the “Traceable Proceeds”). FURTHER DISCLOSURE AND DELIVERY UP 16. On service of this Order, the First, Second, Fourth and Fifth Respondents (and each of them) must, to the best of their knowledge and ability forthwith: (1) inform the Applicant’s solicitors in writing of the current value, nature and location of the Traceable Proceeds and the name or names in which the Traceable Proceeds are held; (2) to the extent that the information referred to in subparagraph (1) immediately above is not within the relevant Respondent's knowledge they must inform the Applicant’s solicitors in writing of the identities, addresses and any other contact details known to them of any person who is or might reasonably be expected to be in possession of the information referred to in subparagraph (1) above; (3) insofar as the Respondent has transferred the Traceable Proceeds to any other person or entity, the Respondent must inform the Applicant’s solicitors in writing of (a) the date of the transfer, (b) the purpose of the transfer, and (c) the identity of the transferee, stating, in the case of a company, where it was incorporated and where its registered office is, and in the case of an individual, stating where that individual currently resides or works or can otherwise be found; (4) the assets (if any) that were acquired in whole or in part by the Traceable Proceeds.”
“On service of this Order the Third Respondent must, to the best of its knowledge and ability forthwith: (1) inform the Applicant’s solicitors in writing of the current value, nature and location of any asset constituted by or derived from the whole or part of the transfers and bank payments identified in Schedule F to this Order (the “Barton Assets”) and the name or names in which the Barton Assets are held; (2) to the extent that the information referred to in subparagraph (1) immediately above is not within the relevant Respondent’s knowledge they must inform the Applicant’s solicitors in writing of the identities, addresses and any other contact details known to them of any person who is or might reasonably be expected to be in possession of the information referred to in subparagraph (1) above; (3) insofar as the Respondent has transferred the Barton Assets to any other person or entity, the Respondent must inform the Applicant's solicitors in writing of (a) the date of the transfer, (b) the purpose of the transfer, and (c) the identity of the transferee, stating, in the case of a company, where it was incorporated and where its registered office is, and in the case of an individual, stating where that individual currently resides or works or can otherwise be found; (4) the assets (if any) that were acquired in whole or in part by the Barton Assets.”
“1. Any purported loan(s) taken by the First Respondent from the Applicant, including but not limited to the two transfers to the First Respondent listed in Schedule D, and any transactions entered into using funds from any and all such purported loans. 2. Any and all investments made by Sentinel Global Fund A LP that were made using monies transferred from Mrs İşbilen or assets derived from such monies, and the traceable proceeds of such investments. 3. Any and all transactions entered into using funds redeemed or redirected from Sentinel Global Fund A LP.”
“18. Within 48 hours after being served with this Order the First Respondent must: (1) to the best of his knowledge and ability inform the Applicant’s solicitors in writing of the location, form, status current or last known whereabouts of any assets which are owned in whole or in part by the Applicant (legally, beneficially or otherwise), or the traceable proceeds thereof; (2) inform the Applicant’s solicitors in writing of the details of any bank accounts (including the number, name, reference and/or any other unique identifier of each account) in his name and/or to which he is a signatory and/or that he controls; and (3) provide to the Applicant’s solicitors any reconciliation in relation to Sentinel Global Fund A L.P. that is within his control.”
“I have sat with him read out the Miles order and gone through assets identified by the Claimant and anything else he needs to disclose, these were set out in my letter of 15 March approved by ST and subsequently the affidavit albeit unsworn. I recited the Miles Order in the letter.”
“I had real concerns from emails exchanged that Mr Bechelet had not taken instructions from you regarding the requirements of para 16 and 18. It was also clear from our discussions over the short adjournment that you were not aware of the full extent of the disclosure requirements under these provisions.”
“Questions will be short and simple. You [i.e. Ms Stewart] will speak to Mr McCourt Fritz [counsel for Mrs Işbilen] about the nature of the questioning. There will be breaks which will be around the hour mark for probably about the ten minute mark, but we will see where we go. You are to be here all day and you are to raise any concerns through Mr Counsell and to sit yourself where necessary. I think those are the ground rules.”
“[9] Mr Turk obtained a psychiatrist’s report which disclosed that he suffered, and has all his life suffered, from Attention Deficit Hyperactivity Disorder (ADHD), for which he is on medication, and has been for some years. For present purposes the principal effect is said to be that Mr Turk is apt to lose focus on any given intellectual task at hand. Since these proceedings were served on him he has suffered from anxiety and low mood. The result of all that it was said that he was entitled to the services of an Intermediary in order to assist him in making relevant adjustments so that he could more fairly cope with the proceedings in court and in order to assist the court and the advocates in dealing with him. Having considered the material, and so far as it fell to me to do so (which I was told it did, especially in terms of funding) I allowed him to have an intermediary, and Miss Catherine Stewart attended as that intermediary on most days, with colleagues attending on two occasions when she could not. [10] In accordance with established procedures, a Ground Rules Hearing took place at the start of the proceedings before me. The point had been taken so late that it was not possible to have such a hearing before then. It was established that Mr Turk would have necessary breaks in his giving of evidence which would be slightly more frequent, and slightly longer, than would otherwise have been the case, and that a close eye would be kept on whether he was getting into difficulties. Miss Stewart attended the hearing in order to assist the court and the advocates, and occasionally (but not often) sought to drawn relevant matters to the attention of the court, which she did (by arrangement) through Mr Counsell. She spoke to Mr McCourt Fritz before he started cross-examining and he was thus able to understand how the nature of his questioning would have to be tailored in order to make proper adjustments for Mr Turk. From time to time I checked with Miss Stewart and her colleagues that she had no concerns, and they indicated that they did not. [11] I am quite satisfied that those measures resulted in a hearing that was fair to Mr Turk’s condition and that he was not disadvantaged. I saw no signs that the nature of his condition meant that he was disadvantaged, and having studied him closely when he was giving his evidence it was apparent to me that he seldom lost focus on what he was being asked, or in the giving of his evidence, apart from one short lapse when he struggled for a word and said he had lost focus, and a very few occasions when it was apparent that he was looking at the wrong document in the witness box without appreciating it and without saying so. In that latter respect he was no more lost or unfocused than many other witnesses who get similarly temporarily lost and who do not claim to suffer from ADHD. I am as satisfied as I can be that he understood all the questions (except where he indicated that he did not) and understood what he was being asked about at all times.”
“Mr Turk was cross-examined thoroughly over the course of two and a half days (albeit that he had more extensive breaks than normal within that time, which extended the period). As I have already observed, he did not demonstrate a key feature of his ADHD, which is a tendency to lose focus, to any significant extent. He manifested a clear understanding of the questions put to him and any elements of uncertainty or confusion were no more than afflict other witnesses who do not have his condition. Where he did not understand a question he was capable of asking for clarification, and the sort of occasions on which he might have understood, or did misunderstand, a question were no more than one sees of many witnesses without his condition. I am quite satisfied that his ADHD in no material way impaired his giving of evidence. I am also satisfied that he demonstrated a good grasp of the facts and what he saw (and could remember) of the details of complex transactions.”
“[83] …There is no blanket rule that a court (or tribunal) must ignore what it sees and hears in court. [Solanki v Intercity Telecom Ltd[2018] EWCA Civ 101 , [2018] 1 Costs LR 103] was a very extreme case on its facts. The first instance judge there essentially completely disregarded the medical evidence without giving any reasons and substituted it with his own opinion that the claimant in that case was not genuine. [84] It is quite legitimate for a court to take account of its own assessment of a litigant's capacity to participate effectively in its overall assessment of the evidence before it, including the expert medical evidence, if it considers it appropriate to do so. No court is ever bound to accept the expert evidence before it, even if that evidence is agreed; see for example Levy v Ellis-Carr and others[2012] EWHC 63 (Ch) at [36] (endorsed in Hayat at [38]). A court or tribunal is entitled to weigh up the medical evidence against all of the other material available to it. If it intends to depart from the conclusion of an expert or experts, it needs, of course, to exercise caution. It also needs to bear in mind that litigants with, for example, mental health illness may mask their problems or not understand that it may not be in their best interests to continue. It must also give reasons for its conclusion.”
“Nothing in that judgment creates a principle which precludes a court rejecting expert evidence before it, and preferring its own evaluation. The criticism in Solanki of the Judge below flowed from the fact that in the face of prima facie credible medical evidence, the judge gave no reasons to explain why he rejected that evidence and preferred his own inconsistent view. In the absence of a reasoned and logical explanation the judge's conclusions appeared irrational. At base expert evidence is like any other evidence and when a judge must take a decision based upon an expert opinion the judge must assess its probative value by weighing it against all of the other evidence in the case that bears upon the issue in question. I would view this as trite. Indeed, it is routine when a judge directs a jury in a criminal case to instruct the jurors that expert evidence is like any other evidence and that the jury is entitled to reject it if such a course is in their view appropriate. The judge will (or should) guide the jury on the probative value of the expert evidence but the jurors as the triers of fact are ultimately entitled to reach their own conclusions on the facts.”
“A person is guilty of contempt by breach of an order only if all the following factors are proved to the relevant standard: (a) having received notice of the order the contemnor did an act prohibited by the order or failed to do an act required by the order within the time set by the order; (b) he intended to do the act or failed to do the act as the case may be; (c) he had knowledge of all the facts which would make the carrying out of the prohibited act or the omission to do the required act a breach of the order. The act constituting the breach must be deliberate rather than merely inadvertent, but an intention to commit a breach is not necessary, although intention or lack of intention to flout the court’s order is relevant to penalty.”
“as indicated by the last sentence of this citation, it is enough that the alleged contemnor intended to perform the act, rather than doing it by accident.”
“In order to establish that someone is in contempt it is necessary to show that (i) that he knew of the terms of the order; (ii) that he acted (or failed to act) in a manner which involved a breach of the order; and (iii) that he knew of the facts which made his conduct a breach: Marketmaker Technology (Beijing) Co Ltd v Obair Group International Corporation & Ors[2009] EWHC 1445 (QB) . There can be no doubt in the present case but that the judgment debtors have at all times been fully aware of the orders of this court. It is not and could not sensibly be suggested that the conduct of which complaint is made was casual or accidental or unintentional.”
“What needs to be proved is as set out in Masri (paragraph 19 above), that is, as well as the acts or omissions which constitute the breach, knowledge on the part of the respondent of (i) the order and (ii) the facts which make the conduct a breach.”
“… once knowledge of the order is proved, and once it is proved that the contemnor knew that he was doing or omitting to do certain things, then it is not necessary for the contemnor to know that his actions put him in breach of the order; it is enough that as a matter of fact and law, they do so put him in breach. In Pioneer, Lord Nolan (with whom Lord Mustill, Lord Slynn of Hadley and Lord Jauncey of Tullichettle agreed) quoted from the opinion of Lord Wilberforce in Heatons Transport (St Helens) Ltd v Transport and General Workers’ Union[1973] AC 15 to explain the policy behind the principle (p 479G of Pioneer): “The view of Warrington J [in Stancomb] has thus acquired high authority. It is also the reasonable view, because the party in whose favour an order has been made is entitled to have it enforced, and also the effective administration of justice normally requires some penalty for disobedience to an order of a court if the disobedience is more than casual or accidental and unintentional.””
“We desire to make it clear that in such cases no casual or accidental and unintentional disobedience of an Order would justify either a commitment or sequestration. Where the Court is satisfied that the conduct was not intentional or reckless, but merely casual and accidental and committed under circumstances which negatived any suggestion of contumacy, while it might visit the offending party with costs and might order an inquiry as to damages, he would not take the extreme course of ordering either of commitment or of sequestration.”
“These authorities indicate that… (2) the Court’s civil contempt jurisdiction is engaged if the claimant proves to the criminal standard that the order in question was served, and that the defendant performed at least one deliberate act that, as a matter of fact, was non-compliant with the order; (3) there is no further requirement of mens rea, though the respondent’s state of knowledge may be important in deciding what if any action to take in respect of the contempt.”
“However the true principle, in my view, is that where the court decides what the order means, and upon that construction the defendant’s conduct breaches the order, the defendant is in contempt. That is the principled consequence of the relevant ingredients of civil contempt, as summarised in Masri, and in particular that the defendant need not intend to breach the order; all that need be established is that the defendant intended to carry out the conduct in question and that such conduct amounts to a breach of the order, objectively construed. Subjective understanding or intention in relation to the meaning of the order is logically irrelevant to the existence of a civil contempt because there is no requirement of an intention to breach it.”
“However, subjective understanding is relevant to the sentence to be imposed for any contempt. Where a defendant acts in accordance with an erroneous understanding of the order, that is less culpable than a deliberate breach. And where the understanding is a reasonable one because it is one of two reasonable constructions of an ambiguous order, the usual position is that he should not be punished for contempt.”
“The order of Miles J was served on11th March 2021 . That triggered an obligation to disclose some of the disclosable material “forthwith”, which means “as soon as reasonably practicable”. 48 hours was applicable to paragraph 18. An affidavit “setting out and verifying” the disclosable information was to follow within 5 working days - Monday 18th March - which was also the return date. By consent that latter date was extended to22nd March 2021 by an order of Ms Pat Treacy made on the return date. That order repeated the penal notice on the original order. I agree with Mr McCourt Fritz that that is the most important date by reference to which one has to assess whether there was a breach or not, though one must not lose sight of the fact that there was a prior obligation to make less formal disclosure under Miles J’s order in relation to the obligation to disclose material “forthwith”, which means “as soon as reasonably practicable”.”
“A judge hearing a committal application should confine himself or herself to the contempts which are alleged in the application notice. If the judge considers that other alleged contempts require consideration, the correct course is to invite amendment of the application notice and then provide any necessary adjournment so that the respondent can prepare to deal with those new matters.”
“When a contract imposes an obligation to do something by a particular date, this does not usually mean that the obligation expires on that date. For example, if a seller agrees to deliver goods to the buyer on or before a specified date, this would not normally be understood to mean that, if the goods are not delivered by that date, a once and for all breach of contract occurs at that time, after which the seller is no longer under any obligation to deliver the goods. Rather, the ordinary understanding would be that, once the specified date has passed, there is a breach that continues until such time as the goods are delivered (or the obligation ceases, for example because performance is waived or the contract is terminated). An undertaking to use all reasonable endeavours differs from an unqualified undertaking such as an obligation to deliver goods in that failure to achieve the relevant objective by the specified date does not by itself mean that there is a breach of contract. But it seems to me equally unreasonable (absent some special factor) to regard failure to achieve the objective by the given date as a reason for releasing the party which has given the undertaking from any further performance.”
“Although my conclusion does not depend upon it, I have little hesitation in rejecting this argument. The order was in common form requiring something to be done by a particular time. Such an order imposes a continuing obligation to carry out the required activity. The temporal qualification identifies the time which is allowed for performance before the respondent will be in breach of the order. It does not, however, put an end to the continuing obligation or prevent the respondent from being in continuing breach if there is non-compliance by the stated time. The obligation on Mr Brooke was to continue after3 May 2016 to use the best of his ability to cause and procure Cable Plus to transfer the funds into Court.”
“As a practical matter, any defendant who is personally served with both the original order and the continuation order made on the return date can be under no misapprehension about the need for him to comply immediately with the relevant requirement, subject only to any extensions of time for compliance which he may be able to agree with the claimant or obtain from the court. That was in substance the position in the present case, in which Mr McKay clearly understood that he had a continuing obligation to make a witness statement in accordance with the order originally made by Nicklin J on9 July 2019 and continued by him on 11 July — hence the extension of time for compliance sought by him, and agreed by Wimbledon. I do not think it was necessary for Wimbledon to go back to the court to get a further order fixing a specific future date for compliance before it could found committal proceedings on Mr McKay's continued failure to produce such a statement.”
“By an Order of9 July 2019 , continued on11 July 2019 , Mr McKay was required to give disclosure of (amongst other things) those with whom he had unlawfully traded Wimbledon Championship tickets, in the form of a signed statement supported by a statement of truth. In making that statement, his right not to self-incriminate was expressly catered for in the order. He has been aware of that obligation since10 July 2019 , and certainly since he was personally served with the9 July 2019 Order on16 July 2019 . It is a continuing obligation which he himself acknowledged when he sought extensions of time in which to comply with it.”
“Ms Jones also submitted that there were two ways in which a person could breach an obligation to use best endeavours. One is if the person has not been genuine in his efforts to achieve the required objective; the other is if the person, even if acting in good faith, has failed to do everything that he reasonably could. I accept this submission. A failure even to try to comply honestly and bona fide with the obligation must be a breach of it; but given the accepted equation of a best endeavours obligation with an obligation to take all reasonable steps, I agree that a person who bona fide tries to comply, but does not in fact take all the steps which it would be reasonable for him to do, is also in breach. That is not to say of course that whether or not there had been a genuine but insufficient attempt to comply might not be very relevant to the way in which the Court ought to dispose of the application to commit, but it would not in my view prevent there being a breach.”
“Despite the fact that one would have expected Bivonas to have explained the order to Mr Turk and made him understand it, it appears that his understanding was lacking. That is surprising, because I consider it to be the case that Bivonas would not just ignore the proprietary disclosure orders, and they must have discussed them with him. However, it is apparent that when Mr Shepherd discussed the matter with Mr Turk he got the clear impression that Mr Turk had not hitherto understood what he needed to do, or at least not fully. I consider that at this time he had not fully grasped his obligations. However, having seen how Mr Turk conducts himself in the witness box I consider him to be an intelligent man who was capable of understanding the sort of thing that he had to do, and that his apparent failure to grasp matters was likely to be combination of the magnitude of the task as it must have appeared, casualness (he was a “relaxed guy”) an element of wilful blindness. This is not the same as the sort of lack of focus which he claimed to have. It was an unwillingness to face up to what he had to do.”
“In sum, therefore, I do not accept that by the end of this part of the process Mr Turk did not understand the sort of thing that the Miles order required of him. He was an intelligent man capable of setting up and operating commercial financial structures and was proposing to open a bank. He had an understanding of money and its deployment. He had, or investigated having, a finger in various business pies. He was capable, by himself, of understanding the order and what it required. If he had not fully grasped that when the order was served on him, or for a little while thereafter, it will have become apparent to him as a result of what happened at the return date and the subsequent attempts to produce a compliance affidavit. If his lawyers had not adequately explained matters to him in the initial phases (which I do not consider to be the case) the requirements clearly emerged later - see in particular the list of questions. His ADHD condition might have had some limited part to play in the initial stages, and I have noted a later remark by Mr Litovchenko in an email to Mr Quirk dated14th April 2021 to the effect that Mr Turk “loses his attention frequently and sidetracks” (not something which was observable in his prolonged cross-examination), so it was a condition which was operating. However, it is a condition which is and was under control with his medication and a loss of focus is not in my view a good explanation for his failure to put in place proper tracing exercises generally. I consider that he did not comply with the order not because he did not understand what was required, but because he did not wish to comply or to face up to what he understood he had to do.”
“… I therefore conclude, first, that the solicitors and counsel instructed by Mr Turk well understood the obligations he was under in relation to the disclosure provisions in the order. They were not difficult for a professional to understand. Second, I find that while there may be no record of a positive explanation given in terms of a note actually recording the giving of paragraph by paragraph by paragraph advice, I find that appropriate advice was given to Mr Turk about what he had to do. That will have been at various stages, as appears above. The absence of a clear record of what any of them actually said, and the absence of a written letter of detailed advice, is no doubt explained by the fast-moving nature of the exercise. Its absence is not a powerful indication that the advice was not given.”
“That means that the question boils down to whether Mr Turk understood, whether from advice or from his own reading, or both, what he had to do under the order. I find that by the time he was required to comply with his proprietary asset disclosure obligations by filing his affidavit, at the latest, Mr Turk had a general understanding of his disclosure obligations under the paragraphs of the Miles order which are relevant to this application, and that he could and should have deployed that understanding to work through the disclosure exercise required. So far as he did not fully appreciate it then, then it will have emerged over the ensuing period. He simply did not want to comply fully. I accept that the complexity of Mrs Işbilen’s affairs and the dispositions of her money (for most of which Mr Turk must have been responsible or in which he was involved) meant that that would be an onerous and time-consuming exercise, but he knew enough about what was required to enable him to embark on it and carry it through. If it be said now that it would not have been practical to carry it out within the limited timeframe provided by the order, or even its extension on the return date, that would be a reason for seeking a further extension, not for not carrying out the exercise. It is not a reason for doing as little as Mr Turk did. These difficulties were no real part of Mr Turk’s defence in this application; as I have observed, Mr Counsell accepted the breaches alleged were breaches if (as happened) he lost on relevant construction points.” (Emphasis added)
“I am quite satisfied that at the time of the order, and when he came to give such disclosure as he gave, he knew of the payment made and did not want to disclose its true purpose which made the invoice a false one. On8th June 2021 Mr Litovchenko, the solicitor at Bivonas who was then acting for Mr Turk, emailed him with a list of questions, one of which was a question as to what advisory services Alphabet provided under the Pegasus invoice. There is no evidence that any answer was given to that. I conclude that that is because Mr Turk knew then that there was no good answer and did not want to give one.”
“There is plainly a breach of the order by Mr Turk personally in respect of this payment. It was a disposition of Mrs Işbilen's assets effected by Mr Turk and which he has not disclosed in any form. In this instance that breach is not merely technical. It is substantive. I also consider it is serious because I find, beyond reasonable doubt, that Mr Turk knows and knew what that payment was for and has decided to pretend he has forgotten.”
“Mrs Işbilen’s case is that Mr Turk effected them without proper consent. He says they were made on her fully informed instructions but he does not deny involvement. Resolving that issue is no part of this application. This application is concerned with the disclosure that Mr Turk did or did not make about them.”
“Thus the invoice was produced as genuine. That must have been on the instructions of Mr Turk, who must have produced it to the solicitors. The following paragraph contains an indignant rebuttal of the suggestion that any produced documents were not genuine, which in the light of what has happened in relation to this Ground is an ironic juxtaposition.”
“[165] That explanation was not contradicted by Mr Turk at the summary judgment application last year. At that hearing submissions were made as to the implausibility of that explanation, bearing in mind that Mrs Işbilen was distancing herself and her assets from Turkey, and was hardly likely to be spending money on property there on some unspecified villa. There was no attempt at that hearing to meet that point, though it might be said that it was not a natural forum for Mr Turk to advance any riposte to that. The allegation that the invoices were false was clearly made in Mr Tickner's supporting affidavit in this application sworn on7th November 2022 (a long time before the summary judgment hearing). [166] Then, for the first time, in his witness statement in this application signed on7th August 2023 Mr Turk changed his story in relation to these payments. He said that these payments were “Hawale”, which is a Turkish expression for a payment to be made to a third party in another country through an intermediary in a different country order to conceal the true source of the money from outsiders. The invoices were said to have been created in order to give the paying bank a reason for making the transfer. His witness statement said that all payments in issue in this Count were Hawale, together with others appearing in a table of payments, but at the beginning of his evidence he corrected that - only some were Hawale, and the others were repayment of “investment”
“Allegations that statements of case and witness statements contain deliberately false statements are by no means uncommon and, in a fair number of cases, the allegations are well-founded. … In general the proper time for determining the truth or falsity of these statements is at trial, when all the relevant issues of fact are before the court and the statements can be considered against the totality of the evidence. Further, the court will then decide all the issues according to the civil standard of proof and will not be applying the criminal standard to isolated issues, as must happen on an application under CPR Pt 32.14.”
“[175] The money paid out of Mrs Işbilen’s accounts were undoubtedly once her assets, but once paid out they no longer clearly were. Liability under this head must depend on his failure to disclose the last known whereabouts of the moneys or their traceable proceeds. I find that there was a breach of this obligation. At one level the last known whereabouts was AET, and in relation to two of the payments Mr Turk disclosed that fact, after a fashion, when he disclosed the invoices. Indeed, Mrs Işbilen already knew the moneys went to AET, from her own records. However, those payments had a purpose and that purpose will certainly have been known to Mr Turk. That purpose will have reflected on the last known whereabouts. If the purpose was Hawale, the last known whereabouts will have been the ultimate recipients. If those recipients were not known to Mr Turk or could not be remembered by him (the latter of which is plausible) then the last known whereabouts would have been an “unknown recipient”, with an explanation. If the purpose was something else then it is inevitable that Mr Turk will have known something about the ultimate recipient. Thus disclosure of the last known whereabouts would have required some disclosure of purpose where the purpose was not to benefit AET beneficially. In those circumstances a response which identified AET as the last known whereabouts of the moneys would have been glib and inadequate. I am satisfied that Mr Turk knew something more of where the money went or was likely to go. [176] Virtually none of that was disclosed by Mr Turk. All he disclosed was two invoices which actually mis-stated the purpose and therefore the last known form and whereabouts. On any footing AET was not the last known whereabouts.” (Emphasis added)
“I find that the breaches alleged under (ii), (iii) and (iv) have been established. In relation to these payments (which are made out of sums specified in the Miles order) Mr Turk should have disclosed where the payments had gone because they would have been Traceable Proceeds within paragraph 16(1), and should have disclosed the date of the transfer, its purpose and the identity of the transferee under paragraph 16(3). He made no attempt to do any of those things. He has now said that the payments were Hawale payments. If that is right then he ought to have disclosed the identity of Mr Erdem as being the person who would know to where the moneys had been transferred under paragraph 16(2); he did not do so.” (Emphasis added)
“In our view where a company is ordered not to do certain acts or gives an undertaking to like effect and a director of that company is aware of the order or undertaking he is under a duty to take reasonable steps to ensure that the order or undertaking is obeyed, and if he wilfully fails to take those steps and the order or undertaking is breached he can be punished for contempt. We use the word “wilful” to distinguish the situation where the director can reasonably believe some other director or officer is taking those steps.”
“I am therefore unable to accept Mr Turk’s evidence that he made a bona fide attempt to get information required about the SGP payments but failed innocently to appreciate that he had ABC Banking Corporation documents in this account. I do not accept he made any real attempt to look for those documents, and therefore did not search to the best of his ability; or alternatively he found them and decided to do nothing about them. I do not accept his evidence that, having found Sentinel documents as a result of a “Sentinel” search, he overlooked their significance.”
“So far as … Barton is concerned, …he … knew he had been a director at the time of the relevant transactions, knew there was no other director in the same position as him, and came to understand that he was a director at the time of the order. In those circumstances the order clearly conveys that he had to do what he could to comply with the Barton paragraph even though the order did not say he was required to make disclosure as a director.”
“I add at this point that his statement of unawareness as to whether Barton had given any disclosure was disingenuous. While there was another director she was not an active one. Barton was Mr Turk’s company, and if anything had happened about disclosure within Barton she would inevitably have let Mr Turk know. Indeed, the impression given by Mr Turk’s evidence is that that other director would have been incapable of conducting any real form of disclosure exercise.”
“IF YOU SELMAN TURK DISOBEY THIS ORDER YOU MAY BE HELD TO BE IN CONTEMPT OF COURT AND MAY BE IMPRISONED, FINED OR HAVE YOUR ASSETS SEIZED. IF YOU SG FINANCIAL GROUP, BARTON GROUP HOLDINGS LIMITED, SENTINEL GLOBAL ASSET MANAGEMENT, INC AND/OR SENTINEL GLOBAL PARTNERS LIMITED DISOBEY THIS ORDER YOU MAY BE HELD TO BE IN CONTEMPT OF COURT AND BE FINED OR HAVE YOUR ASSETS SEIZED ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS THE RESPONDENTS (OR ANY OF THEM) TO BREACH THE TERMS OF THIS ORDER MAY ALSO BE HELD TO BE IN CONTEMPT OF COURT AND MAY BE IMPRISONED, FINED OR HAVE THEIR ASSETS SEIZED”
“ “penal notice” means a prominent notice on the front of an order warning that if the person against whom the order is made (and, in the case of a corporate body, a director or officer of that body) disobeys the court’s order, the person (or director or officer) may be held in contempt of court and punished by a fine, imprisonment, confiscation of assets or other punishment under the law.”
“It is to be noticed that the form of the memorandum is not in any sense a rigid form. It may be altered so long as the effect is in substantial accord with the form. This must give such latitude as is necessary to meet the facts of the particular case. The object of the indorsement is plain - namely, to call to the attention of the person ordered to do the act that the result of disobedience will be to subject him to penal consequences.”
“But in practice the Courts have always required that the order to be enforced should be personally served on the director before it would be enforced against him by attachment. … In my judgment, the order so served should, as a preliminary to its enforcement against the directors, be indorsed with a notice to the effect of the memorandum prescribed by Order XLI., r. 5, including in it the name of the particular director served. So far as my experience goes this has been the practice in the Chancery Division.”
“(4) The first of these prerequisites relates to service. Subject to the power of dispensation, by r.7(3) an order requiring a body corporate to do or abstain from doing an act is not to be enforced by way of an order of committal against a director or other officer unless a copy of the order has been served personally on the officer against whom the order of committal is sought. Service on the officer has to be before the expiration of the time within which the body corporate was required to do the act. (5) The second prerequisite relates to the penal notice. By r.7(4), in the case of an order requiring a body corporate to do or abstain from doing an act, there must be prominently displayed on the front of the copy of the order a warning to the person on whom the copy is served that disobedience to the order would be a contempt of court punishable by imprisonment of any individual responsible. (6) Thus, the rule does not require an individual director to be named. However, although not required by the rule, there is authority that as a matter of practice the order served should, as a preliminary to enforcement against the directors, be indorsed with a penal notice including in it the name of the particular director served (Iberian Trust Ltd v Founder’s Trust and Investment Co[1932] 2 KB 87 , at 97–8, Luxmoore J; the case concerned an earlier version of the rule; and see the form of words in the current White Book at sc45.7.6).”
“… although failure to name Mr Wael Khoury may be very material, it is not in fact a stated prerequisite in RSC O.45, r.7, being described (as I have said) as good practice in Iberian Trust. To the extent that it is required … the court may dispense with service of a copy of an order under r.7(7) if it thinks it just to do so, and may proceed to consider the application to commit notwithstanding the omission.”
“Even allowing for the fact that Mr Gringuz has not given evidence, as he might have done, to explain his understanding … I do not feel able to “waive” the absence of a penal notice in this case, not because of its absence per se, but because the circumstances of its absence provide a reasonable basis for concluding that the court had determined that the Body Corporate Provision could not be engaged in relation to Mr Gringuz. I cannot be satisfied that reversing that position now would not involve an injustice to Mr Gringuz.” (Emphasis added)
“I do not consider that Iberian has much to do with the present case. If one looks at what the present order does, in both substance and form, it has the following elements: (i) There is a penal notice directed at Mr Turk personally, in addition to the notice directed to the various companies. (ii) Mr Turk was a principal defendant in the action and described as the main wrongdoer in the supporting affidavit. (iii) Mr Turk was an actual subject of paragraphs 15 and 16 of the order. He was bound by the restraint in paragraph 15 whether he might be acting as director or not, and was bound by the disclosure obligations in whatever capacity he might have held knowledge. (iv) He was actually a director of two of the companies who were the subject of paragraph 16 (SGP and Barton) and the only company which was the subject of paragraph 17 (Barton).”
“Properly read, it is plain that the disclosure obligations in paragraph 16 were directed at Mr Turk in whatever capacity he might have held the knowledge. The idea that he could hold knowledge, or gain knowledge, as director of one of the companies but could somehow say that he was not obliged to disclose it because there is no particular reference to him as a director of that company is rather absurd. One way or another, the order in that paragraph is directed at him, and there is a penal notice directed at him which makes plain the effect of non-compliance. That makes sense in the context of an action which is based on the fact that he was a person entrusted with the claimant's money (which is an agreed matter even though the scope of the obligation is disputed) and which is based on the premise that she does not know what has happened to it Mr Turk does or should.”
“[4] I reject that submission. The present harm is obvious. Mrs Işbilen was entitled to have the information provided by Mr Turk and not receiving it from him was harm enough. She was entitled to have the court order obeyed without argument and without having to wait until trial and it would be inappropriate to wait so long when she was entitled to have the information at an interim stage. [5] At the adjourned hearing today Mr Counsell revisited the matter in the context of sentencing and submitted that it was not known whether and to what extent Mrs Işbilen has received the information from others since then. Again, even if she has received some of the information since then (and it is apparent from the evidence that she has deployed that she has some of it, in that part of the tracing routes have been revealed) that is no reason for adjourning to see how much else she might have on an absence of harm basis. If she has some information from elsewhere in the meanwhile, then she should not have had to do that. She should have been given it my Mr Turk under the order.”
“So far as harm or prejudice is concerned, failure to comply with the Orders of the Court to provide information is almost always likely to be prejudicial. Mr Howard said that where information had now been disclosed it could be seen that in many cases it was not of great importance after all. But that does not seem to me an answer. Some of the information not disclosed was of some potential significance; but quite apart from this, the prejudice comes in the very fact of not providing disclosure. That is likely, in a case such as the present, to prevent the litigation from proceeding smoothly; it is also almost bound to exacerbate the other party's suspicions and make the litigation both more difficult and more expensive to resolve. Moreover Richard Smith J found that the effect in the present case was to prevent Mr Khawaja from taking steps to preserve his position, and that too seems to me to have been a justifiable conclusion.”
“In deciding what sentence to impose for a contempt of court, the judge has to weigh and assess a number of factors. This court is reluctant to interfere with decisions of that nature, and will generally only do so if the judge: (i) Made an error of principle; (ii) Took into account immaterial factors or failed to take into account material factors; or (iii) Reached a decision which was plainly wrong in that it was outside the range of decisions reasonably open to the judge.”
“Although a suspended committal does not immediately deprive the contemnor of his liberty, therefore, it hangs a sword of Damocles over his head which puts his liberty at much greater risk than did the order which he has been found to have breached. To the extent that there is any doubt about the meaning of the rules, it should be resolved in favour of the citizen whose liberty is thus put in jeopardy. In our judgment, therefore, a suspended committal order is a committal order for the purpose ofCPR r 52.3 (1)(a) and may be appealed without permission.”
“Mr Turk did not suggest that he could somehow remedy his non-compliance in relation to the grounds that were in issue in these proceedings and the sentence in this case is going to be punitive only.”
“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 [2012] ACD 69 shows, an immediate term—greatly shortened to reflect the personal mitigation—may well be necessary.”
“Having considered the matter carefully, I do not consider that those personal factors justify the suspension of the custodial sentence that I would otherwise pass. The mother’s situation has given me most pause for thought, but her son’s conduct is too serious for that to weigh conclusively against the imposition of an unsuspended sentence. I have, however, taken it into account in considering the length of the term of the imprisonment to be imposed.”
“What they show collectively is that 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. For example, Mr Shalabayev was recently sentenced to 18 months' imprisonment for his continuing failure to make disclosure, as required by a freezing order which the bank obtained when joining Mr Shalabayev as fourteenth defendant in the present action…”
“… it must now be accepted that the attack on the administration of justice which is made when a freezing order is breached usually merits an immediate sentence of imprisonment of some not insubstantial amount.”
“A breach of a freezing order, and of the disclosure provisions which attach to a freezing order is an attack on the administration of justice which usually merits an immediate sentence of imprisonment of a not insubstantial amount.”
“Turning then to the disclosure obligations, I similarly consider that the failure to comply with these obligations necessitates an order for committal. Disclosure obligations in aid of a freezing injunction are of the greatest importance to enable a claimant and the court to police the injunction and enforce it against third parties. That is particularly so where the injunction is in aid of a proprietary claim and the claimant is seeking to discover what has happened to money which should have been held for it but has been dissipated.”
“In these circumstances, subject to issues of personal mitigation and the absence of any finding of actual harm, I do not consider that there is anything wrong with the sentences of immediate imprisonment which the judge has handed down, or with their length. The breaches of the freezing order were committed in the context of serious commercial frauds: they were deliberately undertaken, almost immediately, in a brazen attempt to avoid the consequences of the potential discovery of those frauds; they were persisted in over a significant length of time; and they amounted to nothing less than an attempt to remove the impeached business of Motorcare from the restraint of the court’s freezing order into clear open country where the phoenix of Motorcare Elite could fly with impunity.”
“In my judgment, serious as these unregretted, unpurged, contempts have been, and meriting the sentences handed down by the judge, it is not necessary to require those sentences to be served in the form of immediate custody. It is not only for the purpose of encouraging or rewarding the purging or remedying of contempt that the option of suspending sentence exists, and if the judge thought it was, in my respectful opinion, he erred. As it is, the appellants’ prison terms were shortened by the judge because of his appreciation of their personal mitigation. They retain that benefit.”
“This is perhaps a merciful conclusion, especially in the light of the absence of any apology or public regret: nevertheless, in a matter which above all concerns the public interest of the courts in policing the due administration of civil justice, and where no private harm has been proved to have been actually inflicted on the complainant, Templeton, I was ultimately persuaded, by the possibly irremediable hardship which Mr Thomas or Mr Panesar's family might suffer, that the proper course lay in mercy rather than justice.”