Lars Windhorst v ADS Securities LLC [2026] EWCA Civ 905

[2026] EWCA Civ 905Case No CA-2026-000958
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
THE HON MRS JUSTICE DIAS
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 17/07/2026
Before
LORD JUSTICE NEWEYLORD JUSTICE FRASER
Between
MR LARS WINDHORSTAppellantADS SECURITIES LLCRespondent
Mr Thomas West (instructed by Richard Slade & Partners LLP) for AppellantMr James MacDonald KC (instructed by Alston & Bird (City) LLP) for RespondentHearing Hearing dates : 2 June 2026
Approved JudgmentThis judgment was handed down remotely at 10.00am on Friday 17 July 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
[1]On 2 June 2026 the court heard the appeal by Mr Windhorst against the sanction imposed upon him for a finding of contempt of court made against him. Both the finding of contempt and the sanction were made by Dias J on 30 March 2026. Permission to appeal is not required for an appeal such as this as section 13 Administration of Justice Act 1960 provides a right for appeal in contempt proceedings.[2]Given the nature of the sanction imposed upon him, and the hearing that was to take place on 6 July 2026 in the underlying litigation, the court informed the parties at the conclusion of the hearing of the appeal on 2 June 2026 that the appeal was dismissed, with the detailed reasons for that decision to follow. These are those reasons. This judgment is in the following parts:a. A. Introductionb. B. The judgment under appealc. C. Grounds of Appeald. D. Analysise. E. Conclusions A. Introduction[3]This case is an appeal against the imposition of what has been described as a suspended sentence of imprisonment upon the appellant Mr Windhorst. He was not an actual party in the underlying litigation in the Commercial Court, however. The respondent to this appeal is ADS Securities LLC (‘ADS’), which was the claimant in the substantive proceedings, which were between ADS and the defendant Tennor Holding BV (‘Tennor’). In the order made concerning Mr Windhorst, Tennor is described as “the Defendant”, but in order to avoid potential confusion I shall use Tennor in this judgment.[4]Dias J (‘the Judge’) made a finding of contempt against Mr Windhorst on 30 March 2026, and her judgment on this is at [2026] EWHC 787 (Comm) (‘the Judgment’). She also imposed a sanction against him for his contempt, which was 18 months’ imprisonment suspended on certain conditions. One of those conditions was that he produce certain documents to the court. He does not challenge the finding of contempt, nor could he sensibly do so. In this case, his contempt was his repeated failure to obey court orders in respect of his attendance and compliance with other, previous orders. He did not appear before Dias J on 30 March 2026 but he was represented by Mr West, who also appeared on his behalf before us.[5]The details of the underlying litigation between ADS and Tennor are not of direct relevance to this appeal, and therefore I shall deal with them in summary form only. ADS obtained a judgment order against Tennor which was made by Jacobs J on 2 December 2022 in proceedings concerning commercial matters. The judgment debt is for a sum of approximately 27.2 million euros, with interest having accrued upon that sum of approximately 339,000 euros as at that date. The order, which was sealed on 5 December 2022, also awarded ADS approximately £71,000 by way of costs. Other than a payment made to ADS in June 2025 in satisfaction of the costs element, those sums remain unpaid.[6]Mr Windhorst is the controlling mind of Tennor. He is the beneficial owner, a director and CEO of that company, and as part of ADS attempting to have its substantial judgment debt satisfied, ADS made an application under CPR Part 71. As part of that ADS sought to have Mr Windhorst attend a hearing such that they could obtain information regarding Tennor’s means. This process commenced in 2022. On 23 December 2022 Master Cook ordered Mr Windhorst to attend a Part 71 hearing and provide relevant information on Tennor’s means. It is both notable, and verging on extraordinary, that as at June 2026, some 3 ½ years later, that hearing has not yet occurred. That delay has not been caused by any lack of willing on the part of either ADS or the court.[7]This is entirely due to Mr Windhorst’s intransigence and long history of failing to obey orders of the court. ADS have been consistently attempting to have him comply with numerous orders, and the court has been consistent in making further orders under Part 71. In 2023 ADS obtained successive Part 71 orders, namely one made by Master Eastman on 28 April 2023 and a further one by Master Stevens on 11 September 2023. Ultimately ADS achieved personal service, but he both resisted service and also procedurally challenged matters and did not attend the listed examinations. Moving into 2024, after continued non-attendance and last-minute disruption, two consent orders (the first made by HHJ Pelling KC on 15 May 2024 and then Deputy Master Marzec on 7 November 2024) were made managing the proceedings. Each of these re-ordered the Part 71 examination, and also included a penal notice. These did not lead to the hearings taking place, notwithstanding the presence of undertakings in these orders which were made by consent.[8]The sorry tale of non-compliance continued into 2025. On 12 March 2025 Deputy Master Alleyne made a further consent order. This stated that Mr Windhorst ‘shall attend’ the next available date for a Part 71 hearing. Mr Windhorst also gave an undertaking that, once a date was fixed, he ‘shall attend Court on such date’. On 2 April 2025 both sets of solicitors were given notice of the Part 71 hearing date, which was due to take place on 6 June 2025. He simply failed to attend the hearing, although his solicitors (and those of ADS too) did attend. His solicitors submitted on that occasion to the court that Tennor was taking steps to settle the judgment debt. Deputy Master Fine made an Unless order on that date stating that if the debt were not paid by 12 June 2025, the matter was to be referred to the High Court for committal proceedings against Mr Windhorst.[9]On the day by which the debt was to be paid, 12 June 2025, Mr Windhorst’s solicitors applied to extend the deadline until 18 June 2025. The reason for the extension was said to be because he wished to repay the debt with transfers of bonds, but compliance checks were delaying the process. However, on 17 June 2025 Tennor was declared bankrupt in the Netherlands, and insolvency proceedings commenced in that jurisdiction.[10]On 19 August 2025 ADS made a contempt application in respect of his failure to comply with the Order of 12 March 2025, namely his failure to attend the hearing on 6 June 2025. On 8 September 2025 Butcher J ordered that any evidence that he wished to rely upon must be filed and served before 16 October 2025. Mr Windhorst did serve evidence, but only on 27 March 2026, over five months after the deadline imposed upon him by Butcher J. He effectively ignored that provision of the order of Butcher J that imposed a deadline upon him, and produced his evidence three days before the hearing before Dias J. He did not attend that hearing but was represented by counsel. B. The judgment under appeal[11]Dias J found Mr Windhorst to be in contempt of court and made an order for an 18-month sentence of imprisonment suspended on conditions. It is only the sentencing decisions of the judge which are under appeal, and these are at [37] onwards in her judgment.[12]She noted the undisputed principles applicable to sentencing as stated in AG v Crossland [2021] 4 WLR 103. She also reviewed some of the broader case law on breach of court orders. There are of course no sentencing guidelines for contempt of court cases, in the same way that there are for sentences for almost all criminal offences, and considering sentences in other different cases can be of assistance. She considered in particular the few cases relating specifically to breach of Part 71 orders. Two cases in particular she found to be relevant, namely Michael Ashley v Tony Michael Jimenez [2025] EWHC 557 (Ch) and Farrer v Meyer [2022] Costs LR 399. In Jimenez, which is a decision of HHJ Klein sitting as a judge of the High Court, the contemnor had already been subject to a suspended sentence of committal for 60 days. HHJ Klein issued a bench warrant, although the contemnor was out of the jurisdiction. In the case of Meyer, the sentence that was imposed was committal for a period of six months. She did however state that all the cases were fact specific and were of limited use.[13]She identified at [41] of her judgment two particular aspects of the case that were relevant in relation to her assessment of the seriousness of Mr Windhorst’s conduct. These are firstly that breach of a court order, especially one for the provision of information, is ‘among the most serious types of contempt’. Secondly, she noted that Mr Windhorst had been in breach of his own voluntary undertaking contained in the Order of 12 March 2025 to which I have referred at [8] above. She considered that this made the breach of the court order more serious, irrespective of it being co-extensive with the court’s own order.[14]Several other factors were cited by her as demonstrating that the breach was deliberate and contumacious without any reasonable cause. She took the view that although he had apologised for failing to attend the hearing on 6 June 2025, this apology was “wholly inadequate”. She made clear that his reason for his non-attendance was not to be believed. He had stated that he had not attended because he thought the transfer of bonds was irrevocable and would lead to repayment of the judgment debt. However the transfer clearly was revocable. She made it clear that she did not consider him to be a trustworthy man, and there was no document evidencing that he had arranged for an irrevocable transfer of bonds.[15]She also stated that even if his excuse were to be believed it did not excuse his non-attendance. He had both undertaken and been ordered to attend, and he should have at least given notice of non-attendance.[16]She also considered that he had deliberately engineered the extension of the deadline of 18 June 2025, as he was aware of the ensuing liquidation of Tennor in the Netherlands. The Dutch authorities had applied for a bankruptcy declaration in March, and his claims that there were apparently productive discussions to resolve matters with the authorities were wholly unevidenced.[17]She further found that great prejudice was caused to ADS through his breach of the orders. She observed that had the hearing been effective “ADS would have had the opportunity to obtain information and documents which could have materially assisted it in formulating its strategy for enforcement of this considerable judgment debt before Tennor was placed into liquidation”. She considered that an aggravating factor was that he had a long history of ‘an utterly cavalier attitude to the order of the court’ and ‘an unacceptable level of disrespect’.[18]For convenience, I shall set out the concluding findings of the Judge in full at [50]: ‘The court's patience with Mr Windhorst is exhausted, and as the court said in Farrer, it is necessary to teach him that the court is not to be trifled with. I am satisfied that this was a deliberate, cynical breach, and even now he does not unequivocally accept that he was in contempt. There is nothing in his purported apology or excuses which offers any mitigation and the time has come for him to face the consequences of his conduct’.[19]In the order that was made, she imposed conditions as well as a suspended sentence of committal, to which I shall refer as the ‘disclosure obligation’: ‘Not less than 14 days prior to the date of the Examination Hearing, the Respondent [Mr Windhorst] produces to the Claimant [ADS] all documents in the Defendant’s [Tennor’s] control which relate to the Defendant’s means of paying the amount due under the Jacobs J Order’.[20]That condition in particular imposing the disclosure obligation is the subject of one of the grounds of appeal. C. The Grounds of Appeal[21]These were amended to add Ground 3 at the invitation of the court due to the nature of the positive condition that had been imposed as a condition of suspension. I shall reproduce the grounds themselves verbatim, together with the narrative that accompanied each of them from the Amended Grounds of Appeal.[22]Ground 1: The 18 month sentence is excessive. “The period of 18 months’ imprisonment for a failure to attend a Part 71 hearing was manifestly excessive and outside the range of decisions reasonably open to the court. As such, the decision was plainly wrong and should be replaced with a sentence which is proportionate to the contempt proved.”[23]Ground 2: Requirement to produce documents as a condition of suspended sentence unfair. “The fourth “Condition of Suspension” requires that [Mr Windhorst] must produce to the Claimant “… all documents in the Defendant’s control which relate to the Defendant’s means of paying the amount due under the Jacobs J Order”. This requirement is unfair because:(a) The Defendant is in Dutch insolvency proceedings and the appointed office holder has control of the Defendant’s documents. It is impossible for [Mr Windhorst] to produce such documents because they are no longer under his control.(b) In any case, the requirement to produce “all documents” is excessive and practically impossible for [Mr Windhorst] to comply with because it is entirely unparticularised and because the Defendant was part of a large international trading group which generated a vast quantity of potentially relevant documents. Accordingly, this requirement was plainly wrong and should be replaced with a requirement to produce certain documents, or categories of documents, which are in the Respondent’s control.”[24]Ground 3: No jurisdiction to suspend sentence on compliance with a positive condition outside rule 71.8. “The Judge had no jurisdiction to order the fourth “Condition of Suspension” and was wrong to do so.” D. Analysis[25]I shall start with some general observations. It is fundamental to the rule of law that court orders are obeyed. Because contempt proceedings can result in loss of liberty, findings of contempt are made to the criminal standard. At the end of contempt proceedings, the court will make a finding about whether the defendant has, or has not, committed contempt. A finding that a person has committed contempt will sometimes be expressed by stating that the person has “committed a contempt”, been “found in contempt” or been “held in contempt”. The phrase “guilty of contempt” is also sometimes used. These phrases are essentially interchangeable. The court has the power to imprison the contemnor, with the maximum sentence being two years’ imprisonment, or to fine them. This power to imprison a contemnor comes from the court’s inherent jurisdiction.[26]The process by which the law of contempt has developed over the years has been piecemeal and not systematic. There are confusing and difficult distinctions between civil and criminal contempt, for example. In July 2024 the Law Commission published Contempt of Court: Consultation Paper (2024 CP262) making provisional proposals for reform. One of the difficulties in language is demonstrated by phrases such as “committal for contempt” rather than passing a sentence of imprisonment.[27]As Warby LJ (with whom Lewison and Edis LJJ agreed) explained in Cuciurean v(1) Secretary of State for Transport(2) High Speed Two (HS2) Ltd [2021] EWCA Civ 357 at [10]:
“[10] ….. the essence of the wrong is disobedience to an order. Disobedience to an order made in civil proceedings is known as "civil contempt". The contempt proceedings are brought in the civil not the criminal courts. The procedure is regulated by common law and Part 81 of the Civil Procedure Rules. The proceedings are not brought by the state, through the Attorney General or otherwise, in the public interest. They are normally brought by the beneficiary of the order that is said to have been disobeyed, whose main if not sole purpose will be to uphold and ensure compliance with the order. In summary, this is "contempt which is not itself a crime": R v O'Brien [2014] UKSC 23 [2014] AC 1246 [42] (Lord Toulson). Hence the use of language such as "liability" and "sanction" rather than "conviction" and "sentence". [11] …. the court also has an interest in deterring disobedience to its orders and upholding the rule of law. To advance these purposes the court has power in an appropriate case to impose a fine, or a custodial order. Custody in cases of contempt is known as committal. It is not the same as a prison sentence – there are several ways in which those committed for contempt are treated differently from convicted criminals sentenced to a term of imprisonment.”
(emphasis added)[28]A sentence of imprisonment for a criminal offence, or what is now called a Suspended Sentence Order, may impose a range of conditions. These are set out in statute. They can include a whole range of matters such as unpaid work, drug testing orders, and curfews. These are not available for committals for contempt that are suspended. Unpaid work, for example, is supervised by the Probation Service. I do not consider that the court has the power to order the Probation Service to supervise a contemnor in the same way as it does if imposing a suspended sentence of imprisonment for a criminal offence. There are therefore some conditions that are available to the court when a sentence of imprisonment is passed for a criminal offence that are not so available if a committal for contempt is being imposed with that committal being suspended.[29]However, there is no doubt that a committal for contempt can be suspended and this has been accepted for some decades. When looked at from first principles, this is entirely sensible. If the ultimate sanction is for the court to deprive someone of their liberty, it makes little sense for that only to be possible if done immediately, but not suspended. In the older cases, the expression “binding over to keep the peace” was used, which essentially means the person not committing any further offences or contempts of court. As time has moved on, the language has developed and the term “suspended custodial sentence” appears to be more widely used even in contempt cases.[30]This was fully explained by Lord Denning MR in Morris v Crown Office [1970] 2 KB 114,124. He analysed the effect of the Criminal Justice Act 1967, which introduced the power to suspend sentences of imprisonment of not more than six months (that period has now increased to three years following section 2(2)(d) of the Sentencing Act 2026, amending the Sentencing Act 2020). He concluded that “there is no power in this Act for any High Court judge to give effect to a suspended sentence – if he gave one – for a committal for contempt of court”. This reflects the conceptual difference between passing a sentence of imprisonment upon someone for a criminal offence, and committing for contempt. However, Lord Denning MR went on to find at 125 that “the powers at common law remain intact. It is a power to fine or imprison, to give an immediate sentence or to postpone it, to commit to prison pending his consideration of the sentence, to bind over to be of good behaviour and keep the peace, and to bind over to come up for judgment if called upon. These powers enable the judge to give what is, in effect, a suspended sentence.”[31]In National Highways v Heyatawin [2021] EWHC 3078 QB at [49] the President of the KBD stated the principles applicable to imposition of a sanction for contempt. They are as follows:
“(a) The court has a broad discretion when considering the nature and length of any penalty for civil contempt. It may impose: (i) an immediate or suspended custodial sentence; (ii) an unlimited fine; or (iii) an order for sequestration of assets; (b) The discretion should be exercised with a view to achieving the purpose of the contempt jurisdiction, namely (i) punishment for breach; (ii) ensuring future compliance with the court's orders; and (iii) rehabilitation of the contemnor; (c) The first step in the analysis is to consider (as a criminal court would do) the culpability of the contemnor and the harm caused, intended or likely to be caused by the breach of the order; (d) The court should consider all the circumstances, including but not limited to: (i) whether there has been prejudice as a result of the contempt, and whether that prejudice is capable of remedy; (ii) the extent to which the contemnor has acted under pressure; (iii) whether the breach of the order was deliberate or unintentional; (iv) the degree of culpability; (v) whether the contemnor was placed in breach by reason of the conduct of others; (vi) whether he appreciated the seriousness of the breach; (vii) whether the contemnor has cooperated, for example by providing information; (viii) whether the contemnor has admitted his contempt and has entered the equivalent of a guilty plea; (ix) whether a sincere apology has been given; (x) the contemnor's previous good character and antecedents; and (xi) any other personal mitigation; (e) Imprisonment is the most serious sanction and can only be imposed where the custody threshold is passed. It is likely to be appropriate where there has been serious contumacious flouting of an order of the court; (f) The maximum sentence is 2 years' imprisonment: s. 14(1) of the Contempt of Court Act 1981. A person committed to prison for contempt is entitled to unconditional release after serving one half of the term for which he was committed: s. 258(2) of the Criminal Justice Act 2003; (g) Any term of imprisonment should be as short as possible but commensurate with the gravity of the events and the need to achieve the objectives of the court's jurisdiction; (h) A sentence of imprisonment may be suspended on any terms which seem appropriate to the court.”
[32]It is that latter principle at (h) that is at the heart of Ground 3 of this appeal, which I will come to after dealing with the first two grounds.[33]Mr West for Mr Windhorst advances a simple argument in respect of Ground 1, which is that committal for 18 months is simply too long. He points out that the maximum available is two years, and drew our attention to a number of cases in which other lesser periods had been imposed. Obviously on one hand these will invariably be on different facts. On the other hand, there is some advantage in consistency of approach generally.[34]However, as stated by Nugee LJ in Mohamed Saleem Khawaja v Stefanova [2023] EWCA Civ 1201 at [38]: “[C]omparisons of this type [with previous decided cases] are seldom a useful exercise [...] The task of the judge imposing a sanction for contempt of court is not to review other cases with a view to identifying those with similar features, but to assess the seriousness of the conduct in the context of the instant case”.[35]In the criminal jurisdiction for criminal offences, sentencing guidelines are available which have the benefit of ensuring consistency of sentencing across the different Crown Courts across the land. There are no similar sentencing guidelines for contempt. However, the dicta in Crossland to which I refer at [12] above was considered by the judge in her judgment, and that directs a similar analysis of assessing both the harm or impact of the contempt, as well as a broad assessment of culpability when deciding sentence. This is also explained in the principle at [49](d) in the National Highways case to which I have referred at [30]. It is a logical sequence in coming to a settled conclusion on the issue of “how serious the contempt actually is”, which is necessary in order to arrive at the conclusion “what should the sanction be?”[36]In terms of seriousness, I agree with the judge that this was a serious contempt. As the judge put it herself at [44] in her judgment “The history of the matter is replete with last minute excuses and prevarications by him and failures to attend hearings. This demonstrates an utterly cavalier attitude to the orders of the court, not to mention an unacceptable level of disrespect.” I also agree with her that the breach of the undertaking by Mr Windhorst is an aggravating factor. An undertaking in a court order is a promise to the court by someone that they will do something, or refrain from doing something. That promise is usually an important part of the court deciding what should go in the order itself. A court cannot order someone to give an undertaking; it is a voluntary act. In my judgment, breach of an undertaking is typically more serious than breach of an order simpliciter. Here, Mr Windhorst did both – he breached both an order, and also his own undertaking. That makes his conduct worse than it otherwise would be.[37]I observed in Buzzard-Quashie v Chief Constable of Northamptonshire Police [2025] EWCA Civ 1397 at [74] that many of the authorities dealing with contempt use older expressions, which include words such as contumelious and contumacious, although it may be that it is only lawyers and judges who understand such terms. These words can hardly be said to be in general widespread use. Breach of a court order does not have to justify the description of being contumelious, deliberately insolent, wilful, rebellious, rude, recalcitrant or defiant in order to justify a finding of contempt. However, in my judgment any of those words could be used to describe the behaviour of Mr Windhorst in this case. His contempt was prolonged, and he shifted his threadbare explanations, which were varied. He appears also to believe that judges in this jurisdiction must be extraordinarily gullible. I fully agree with the description of his behaviour by Dias J. I also agree that eventually the patience of the court must come to an end. That point was plainly reached in this case.[38]The period selected by the judge of 18 months was not excessive, manifestly or otherwise, and it was well within the range of decisions reasonably open to the court. She took account of all the relevant factors and did not fail to take account of any feature that she was required to take account of. Ground 1 in my judgment must fail.[39]I turn therefore to Ground 2. This is based on the submission that the requirement to produce all documents in the control of Tennor is unfair because it is in insolvency proceedings and the description “all documents” is too wide. I can deal with this ground shortly. It is noteworthy that when the orders were first made, Tennor was not in insolvency proceedings at all. It is also tolerably clear that the purpose of Mr Windhorst’s continuing and deliberate contempts of court was to engineer a situation where time could effectively be obtained in order that Tennor could then go into insolvency proceedings before the Part 71 proceedings could be effective. I see nothing unfair in requiring Mr Windhorst, as a condition of suspension, to do something which he plainly could and should have done previously, when these later arguments were not available to him. However, fundamentally and in any event, this part of the order is to be interpreted having regard to CPR Part 31, which sets out how a document would be within a party’s control. We were also told at the hearing of the appeal that Mr Windhorst was in the process of categorising the documents that he did have. In all the circumstances, I consider that this ground should fail too.[40]I turn therefore to the final ground, Ground 3. This relates to the imposition of a positive condition of suspension, and how that interrelates to CPR Part 71.8. As I have explained above, in National Highways at [49](h) it is said that “a sentence of imprisonment may be suspended on any terms which seem appropriate to the court.” It is the way in which the phrase “any terms” can be interpreted that has led to this ground.[41]There is an obvious conceptual difference between the imposition of a negative condition, or requiring a person to refrain from doing something, and the imposition of a positive condition, requiring them actually to do something positively. A sentence of imprisonment being passed for a criminal offence can be suspended, provided that the sentence is for a period of time of three years or less (until March 2026 that period was two years, and it has been recently increased). The period of suspension has been similarly increased to three years. If the defendant commits another criminal offence during the period of suspension, or breaks the conditions of the suspension, they can be returned to prison to serve some (or all) of the remaining term, as well as being sentenced to a further term if they have committed another criminal offence.[42]For the suspension of a committal for contempt, a different approach applies. Committing an offence of theft, for example, would not automatically trigger a contemnor being committed to prison, because that would not automatically be a breach of the suspension of a committal for contempt. Committing another contempt of court might do so, depending upon the terms of suspension. That is why it must be very clear in the ordering of any sanction for contempt that does suspend the loss of liberty what those conditions of suspension are. The contemnor must know with clarity what will lead to the warrant of committal being executed against them. However, here, the conditions are very clearly set out. Ground 3 is that the court had no jurisdiction to impose the fourth condition because it is not specifically listed in CPR Part 71, which deals with examination of a judgment debtor.[43]Contempt of court generally is dealt with in CPR Part 81.1 which states:
“(1) This Part sets out the procedure to be followed in proceedings for contempt of court (“contempt proceedings”). (2) This Part does not alter the scope and extent of the jurisdiction of courts determining contempt proceedings, whether inherent, statutory or at common law. (3) This Part has effect subject to and to the extent that it is consistent with the substantive law of contempt of court.”
[44]There is a separate rule that deals with examination of judgment debtors, and that is dealt with in CPR Part 71. Rule 71.8(1) states that if a person against whom an order has been made under rule 71.2 fails to attend court, refuses at the hearing to take the oath or answer questions, or otherwise fails to comply, then the court will refer the matter to a High Court judge or Circuit Judge. The remaining parts of rule 71.8 state:
“(2) That judge may, provided the judgment creditor has complied with rules 71.4 and 71.5, hold the person in contempt of court and make an order punishing them by a fine, imprisonment, confiscation of assets or other punishment under the law. (3) If such an order is made, the judge will direct that— (a) the order shall be suspended, provided that the person— (i) attends court at a time and place specified in the order; and (ii) complies with all the terms of that order and the original order; and (b) if the person fails to comply with any term on which the order is suspended, they shall be brought before a judge to consider whether the order should be discharged.”
[45]The point advanced for Mr Windhorst here is that nowhere in the previous orders was he required to produce documents 14 days in advance of the Examination Hearing. It is submitted that CPR 71.8(3)(a)(ii) requires this. The fourth condition of the order imposed by Dias J does require him to do this and because it was not in the original order there was no jurisdiction to make this a condition.[46]I do not consider that the procedural framework for examinations of this type under CPR Part 71 ousts the power of the court under its inherent jurisdiction to impose positive conditions for the suspension of a committal for contempt. I do not consider that the court’s powers to impose such terms as it considers appropriate as a sanction for contempt are limited as a result of the Rules Committee drafting Rule 71.8 in the way that it has. Part 81 makes it expressly clear that it “does not alter the scope and extent of the jurisdiction of courts determining contempt proceedings, whether inherent, statutory or at common law” and also that the Part “has effect subject to and to the extent that it is consistent with the substantive law of contempt of court.” Simply because some parts of Part 71 also deal with contempt, but that rule does not have similar express wording at the beginning cannot lead to a conclusion that the substantive law of contempt is changed by one rule, but not the other.[47]Particularly in this case, where the condition complained of – production of documents – was something that the contemnor had already been ordered to produce in any event, the fact that it is a positive condition requiring him to do that does not, in my judgment, invalidate that condition or mean there was no jurisdiction to impose it. Nor does it mean that it was wrong to have been imposed. It is correct that the timing is different, in that the original orders required him to produce the documents at the hearing, but I do not consider that matters.[48]I would observe that in the majority of cases, imposing a positive condition would ordinarily be that the contemnor do something that they had previously been ordered to do. Making it a condition of suspension is one way of the court putting yet more weight behind its earlier orders. However, I fall short of saying that positive conditions must always be related to previous orders of the court. Such considerations will always depend on the facts of each particular case.[49]Therefore in my judgment Ground 3 must fail too. E. Conclusions[50]In my judgment, the sanction that Dias J imposed upon Mr Windhorst for his continuing behaviour and undoubted contempt of court over a long period was entirely justified. It cannot sensibly be said that committal for contempt for a period of 18 months, even had it not been suspended, was disproportionate, wrong in principle, too long or manifestly excessive. I consider the judge to have properly considered all the relevant considerations as she explained in her judgment, and entirely agree with her when she described his conduct as being deliberate and cynical.[51]Other judges might have imposed different periods of time, as the length of the term is a matter of discretion. Some judges may even have chosen not to have suspended it. However, that is not the test on an appeal of this nature, and I agree that a sentence towards the upper end of the maximum sentence of two years on the facts of this case was entirely justified.[52]Further, it was not unfair to require him to produce certain documents as a condition of suspension. The fourth condition required him to produce those documents “not less than 14 days prior to the date of the Examination Hearing.” Mr West sensibly accepted, as he had to accept, that the existing orders of the court that were in existence prior to the hearing of 30 March 2026 required Mr Windhorst to produce those documents in any event at the hearing. Therefore the only effective and operative difference between this condition and the existing paragraphs of the orders relating to the Part 71 hearing and production of documents, was that the condition required them to be produced 14 days in advance of that hearing. I am entirely unpersuaded that requiring someone to produce documents 14 days before a hearing, rather than on the day of the hearing itself, could be said to be “unfair”.[53]Further or additionally, if one considers that the day of the Examination Hearing had been postponed more than once due to the contemptuous conduct of Mr Windhorst, even a deadline 14 days before the Examination Hearing (which was listed for July 2026) was a date over a year later than he had been originally ordered to produce them in any event. In those circumstances, it is difficult to envisage how any unfairness could be said to arise.[54]Finally on this point, I consider that the court has jurisdiction under its general case management powers to make an order for production of documents in advance of a hearing date in any event. I do not consider that Part 71 constrains the court’s powers in respect of contempt of court. The introductory wording of Part 81 applies to all proceedings for contempt, regardless of other rules. If that is right, then the court certainly has the same power in respect of imposing a condition such as this one whether the underlying proceedings in which the contempt occurred were under Part 71 or not.[55]Finally, the court has an undoubted power to commit a contemnor for contempt under the common law. That power has over time evolved or been refined such that it can be exercised in a more proportionate and focused way than immediate loss of liberty, by suspending it (to use the modern terminology). It has been made clear in a number of cases that if an order for committal is to be suspended, the conditions of suspension must be clearly explained. Although CPR Part 71 has its own separate regime, the court is not constrained by the terms of Part 71 in its exercise of its inherent jurisdiction and what conditions it imposes. The positive condition imposed upon Mr Windhorst in this case is unobjectionable and in my judgment entirely sensible.[56]In all the circumstances therefore, I would dismiss the appeal on each of the three grounds for the reasons that I have explained.

LORD JUSTICE NEWEY :

[57]I agree.