Heidleberg Graphic Equipment Ltd. & Anor v Hogan & Ors [2004] EWHC 3090 (Ch)

Case No HC04C02304[2004] EWHC 3090 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of JusticeDate Wednesday, 6 th October 2004
Strand
London WC2A 2LL
Before
MR JUSTICE MANN
Between
Heidleberg Graphic Equipment Ltd. & AnorClaimantHogan & OrsDefendant
HEIDLEBERG GRAPHIC EQUIPMENT LIMITED AND ANOTHER
CLAIMANT
- v -
HOGAN & OTHERS
FIRST AND SECOND RESPONDENTS
Tape Transcript of Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR T PETO (instructed by Ross & Craig) appeared on behalf of the CLAIMANT
MR E SUMMERS (instructed by Gaunt & Co) appeared on behalf of the FIRST RESPONDENT
MISS F EDINGTON (instructed by Jones & Co) appeared on behalf of the SECOND RESPONDENT
J U D G M E N T
[1]This is an application to commit two of the defendants in this case, namely Mr and Mrs Hogan, to prison for contempt of court, for their alleged breaches of a search and seizure order made by Park J on 15th July of this year; and in the case of Mr Hogan, for breach of an order made the next day freezing his assets and requiring disclosure of his assets.[2]The background to this case is as follow. The search and seizure order was obtained at the behest of the claimants in this action, who are sufficiently identified from the formal documents. They are companies who manufacture and maintain substantial printing presses. For that purpose they prepared some CD ROMS -- considerable in number -- the contents of which they claim to be protected by copyright and other intellectual property rights.[3]They claimed in the material before Park J that these rights were very important to them, and that it was important to them that they be kept confidential. They were issued only to authorised personnel. It came to their attention that certain of these disks were being offered on the Internet via the eBay electronic auction mechanism, and by various means -- which I do not need to go into -- they traced back the vendors in respect of those sales to the original two defendants in this action; namely Julie Hogan (that is the Mrs Hogan to whom I have referred ) and Charlene Parkinson (also known as Goddard), the sister of Mr John Hogan, who is Mrs Julie Hogan’s husband. Based on the material that they had the claimants applied for a search and seizure order authorising them to search, amongst other premises, 79 West Street, South Kirby, Pontefract, which is the home of Mr and Mrs Hogan.[4]The committal application arises out of the events of 15th July, when that order was executed. I need to go into the events of that day in some detail, and I shall do so. When I describe the events, any of the events which I describe should be taken as being a finding by me that those events did occur, save where the contrary appears.[5]First, I should describe the terms of the search and seizure order so far as their terms are relevant to the matters before me. It is in standard form with such variations as were necessary for the particular case. Thus it contained various material on the front page, making it clear that if Mrs Hogan disobeyed the order she would be held in contempt of court and might be imprisoned, fined, or have her assets seized, and containing this rubric:
“Any other person who knows of this order and does anything which helps or permits 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.”
Those words are in bold on the face of the order. The order then goes on to describe itself as a search and seizure order; it described the circumstances in which it was made, and indicates in paragraph 5 as follows:
“This order must be complied with by (a) the Respondent (and (b) I need not read). (c) If the Respondent is an individual, any other person having responsible control of the premises to be searched.”
[6]The order then says that the respondent -- who for these purpose is Mrs Hogan -- must permit the following persons, that is to say, James Hamilton and Chris Tulley of DLA (“The supervising solicitors”), and then certain other persons, including a Helen Shearing who is in the employment of Ross & Craig, the solicitors to the claimants, to enter the premises to search for certain material described later on in the order. Because it is in its usual terms, it is obligatory as to the permission that must be given, and the order in terms says that the search is so that they can search for, inspect, photograph, electronically copy or photocopy and deliver into the safekeeping of the applicant’s solicitors, various documents and articles listed in schedule B to the order.[7]Paragraph 7 recites that having permitted the search party to enter, the Respondent must allow the search party to remain until the search is complete.[8]The next relevant provision is paragraph 10, which provides that the Respondent is entitled to seek legal advice and to allow the supervising solicitor to delay starting the search for up to two hours.[9]Paragraph 11 provides that the Respondent can gather privileged documents and hand them to the supervising solicitor. Nothing turns on that.[10]Paragraph 13 provides this:
“No item may be removed from the premises until a list of items to be removed has been prepared, and a copy of the list has been supplied to the Respondent, who is to be given a reasonable opportunity to check the list.”
There are then various other safeguards which I need not deal with.[11]At paragraph 16 it provides that the Respondent should immediately hand over to the applicant’s solicitors any of the listed items which are in his possession, or under his control, with a saving for certain computer records.[12]Paragraph 17 provides that the respondent must give effective access to all parts of the premises and to any boxes, safes, briefcases, drawers or other containers on the premises to enable them to be searched, and provides for the provision of keys and so on.[13]Paragraph 19 provides for the provision of information:
“The Respondent must immediately inform the applicant’s solicitors in the presence of the supervising solicitor so far as he is aware of (a) where all the listed items are; (b) the name and address and contact details of everyone who has supplied him, or offered to supply him, with intellectual property, which is (inaudible) in the order; listed items as defined in schedule B below; (c) The name and address and contact details of everyone to whom he has supplied, or offered to supply, intellectual property listed items; and (d) full details of the dates and quantities in every such supply and offer, and the prices paid. (e) The names, addresses and contact details of all the Respondents. (f) The names, addresses and contact details of all the persons who have reproduced intellectual property listed items, or who have assisted the Respondents to acquire, or to supply, or to offer to supply, or to store intellectual property listed items. (g) All trade names, aliases, email addresses and websites and details of all eBay, or other Internet facilities used by the Respondents to acquire, or supply, or offer to supply intellectual property listed items, or to accept orders, or enquiries relating to intellectual listed items, or to accept orders, or enquiries relating to intellectual property listed items, and certain other material I need not refer to.”
It goes on:
“The obligations in (e), (f) and (g) above shall not apply if the Respondent informs the supervising solicitors that he will apply as soon as possible to the court under paragraph 29 for the order to be varied so as to discharge or reduce the obligations or any one or more of them.”
Then paragraph 20 provides for the swearing and service of an affidavit verifying that information by 26th July.[14]At paragraphs 21 to 25 are set out various prohibited Acts. Paragraph 21 provides that:
“Except for the purpose of obtaining legal advice, the Respondent must not directly or indirectly, inform anyone of these proceedings, or of the contents of this order, or warn anyone that proceedings have been, or may be brought against them by the applicant, until 4.30 on the return day or further order of the court.”
[15]Paragraph 22:
“From the time of service of the order until the search of the premises is completed, the Respondent must not have any contact whatsoever with any other Respondent except with the consent of the supervising solicitor and in his hearing and presence.”
[16]Paragraph 23:
“From the time of service of this order until the search of the premises is completed, the Respondent must not make or receive any telephone call, or mobile phone call except with the permission of and in the presence and hearing of the supervising solicitor except that in the case of calls made or taken for the purpose of obtaining legal advice. Once the supervising solicitor has satisfied himself that the call is for that purpose the Respondent shall be entitled to continue the telephone conversation out of the hearing of the supervising solicitor.”
[17]Paragraph 24:
“Until 4:30pm on the return date, the Respondent must not destroy, tamper with, (cancel) or part with possession, power, custody or (control) of the listed items otherwise than in accordance with the terms of this order.”
[18]Paragraph 25:
“Until 4:30pm on the return date, the Respondent shall not reproduce, import, sell, offer for sale or otherwise deal with any intellectual property listed items.”
I need not read any more of that order.[19]It appears to me that the restrictions on informing other people of the existence of the order, and the prohibition on making or receiving telephone calls is likely to have been included in the order because in addition to the orders applying to the premises I have described, they also apply to separate premises in the ownership or occupation of Charlene Parkinson.[20]At about three o'clock in the afternoon of 15th July the order was executed. The supervising solicitor at the premises was Mr James Hamilton (the partner in DLA) who has very significant experience in search and seizure orders from having conducted them and come across them in his own practice. I have seen him in the witness box. It is quite clear to me that he conducted his activities fairly, impartially and with distinction, doing all that could be expected of him in the circumstances.[21]He has prepared an affidavit for the purpose of reporting to the court on what happened that day, and that affidavit has formed part of the material deployed by the claimants in this committal motion. He describes what happened as follow, so far as is relevant to the issues that I have to deal with. He was accompanied by, amongst others, Helen Sheerings, who is the person whom I have already identified as having been referred to in the order. It was pouring with rain, and because it was raining, and because of his functions, Mr Hamilton was not himself able to keep a contemporaneous note. However, Miss Sheering could and she did. I was told in evidence, and I accept, that she made a manuscript note of the events as she witnessed them, and as she heard them and that those notes have been reduced to a formal type attendance note which is annexed to Mr Hamilton’s statement and the truth of which he verifies. Miss Sheering herself was not called to give evidence.[22]Mr Hamilton was called to give evidence and he was cross-examined. At approximately 3pm on the day in question on 15th July he and Miss Sheering arrived at 79 West Road where a woman answered the door and she identified herself as Mrs Julie Hogan. He says he introduced himself as a solicitor of the Supreme Court, and explained that he had been appointed by the court to supervise a search of the premises, but he was independent of the applicants. He says he explained to her the permissive nature of the order and went on to explain her right to refuse to allow a search to go ahead, but that if she refused permission then she may be liable to a fine or imprisonment for contempt of court.[23]He described the background to the order and the types of items which the applicants would wish to search for, and he says that he informed her of each of the prohibited Acts under paragraphs 21 to 24 of the order, but he did not specifically inform her of her obligations under paragraph 25. And it will be remembered that paragraphs 20 to 24 were the prohibition of tipping off, and making and receiving telephone calls. He informed her of her right to take legal advice before the search began, and informed her of her right to hand to him any privileged documents and her right to apply to vary or discharge the order on notice.[24]He says, and I find, that she confirmed at various stages that she understood what he was saying. He asked her if she would allow the search to take place. She said that they could not enter the premises, that she needed to collect her children from school, and that she had an important doctor’s appointment. He told her that he was serving the order was a bundle of documents in support of the order, and he left them just inside the door. At this point Mr Hamilton describes Mrs Hogan as having received a telephone call on her mobile telephone, apparently from her husband. She stood in the hallway and took the call in the hallway where he was able to hear through the door, although he could not see her. He explained during the call two or three times that she should not speak about the order to anyone, but nevertheless he heard her tell her husband of their presence, that there was an order to search the premises and that it was, in her words, “The Heidleberg thing.”[25]Mrs Hogan’s evidence is slightly different to this extent. She denies that she received the telephone call from her husband. She says that she made a telephone call to her husband. That is potentially an admission by her against interest, because whilst perhaps she could not avoid receiving a telephone call (without ringing off) or without answering on the mobile phone, she obviously had to decide to make a telephone call herself. In any event, her evidence was that she made a telephone call to her husband. I find on this that she is right. That she made the telephone call and the consequences of that, in relation to breach of the order, is something I will deal with later. Otherwise I find that Mr Hamilton’s account of events thus far is accurate.[26]In particular, I find that he explained fully the relevant parts of the order. I find that he informed her conscientiously of what her rights and obligations were. In all these instances I should say I find beyond reasonable doubt, since that is the burden which I am prepared to treat for these purposes as existing for a committal motion such as this. I find that she confirmed that she understood, and I do find, having seen her in the witness box, that indeed she did understand what was being required of her. She sought to say in the witness box that she did not really understand what was happening, but I find that that was wrong. She may have been bemused; she may have been very surprised, she may have been very alarmed, but I find that she understood what was going on. In particular I find that she understood that there was a court order -- that is to say an order of this court -- which required her to allow admission, and I find that she communicated the fact of the existence of an order to search the premises to her husband in the telephone call to which I have referred. The consequence of that for Mr Hogan will appear subsequently.[27]The telephone call came to an end and Mrs Hogan said that she had to pick her children up from school. I find as a fact that she did; there was no contrivance. Perhaps just as bad luck would have it, the solicitors had arrived and caught her at a time when she was going to pick her children up from school. She said she had called her husband at his workplace, called J & V Printing Services Limited, and that he would come and take over from her while she collected the children. Mr Hamilton agreed that that should happen. He says that after a little while, when her husband had not arrived home, she became clearly agitated, and he suggested that she lock the house and collect the children. She told him there was no one else in the house -- she told him that categorically -- and left in her car. Mr Hamilton suggested she should not take her mobile telephone, to avoid any suggestion she might breach the order, and he believed and I find that she left the telephone in the hall.[28]While she was away, Mr Hamilton and Miss Sheering noticed a man in a royal blue short-sleeved shirt moving around inside the house. He could be seen through the frosted glass front door. He did not answer the door when the door was knocked on. Through the window Mr Hamilton could see that the man was making several trips removing items from the front room. He removed, as far as Mr Hamilton could see, a computer monitor, and on another occasion, apparently, disks and perhaps a joystick. He re-entered and left the premises a number of times carrying what appeared to be more computer equipment and disks. Several minutes later, he emberged from an adjoining property carrying bags, got into a blue and purple car and drove off.[29]A short while later a man wearing a royal blue polo shirt approached him outside the house and confirmed that he was Mr Hogan -- that is to say Mrs Hogan’s husband. He said that he had not been home since early that morning. Mr Hamilton noted that his clothing was wet, and his shirt was covered in burrs from vegetation. It was at this time still raining. The salient points of the order were explained to this gentleman, Mr Hogan. He was not served with any papers, but Mr Hamilton said he made clear the obligations in the order and the consequences of not complying. He referred to the man’s conversation with his wife on the telephone. Mr Hogan appeared to deny that any such call had taken place, and that he had simply just returned from work. I accept that evidence from Mr Hamilton.[30]Mr Hamilton goes on to say that he asked him whether, as the person in charge of the property, he would permit the search to take place, to which Mr Hogan replied he would not. Mr Hogan said he did not know who else was on the premises, if anyone, and he would not expect anybody to be there. Mr Hamilton reported that Mrs Hogan was currently collecting the children from school, and when Mr Hamilton asked Mr Hogan whether he would be concerned to know there was a man with a very similar shirt to his who had recently been inside the property removing items, Mr Hogan said he would be concerned. But Mr Hamilton took the view that clearly he was not concerned. The reason that he clearly was not concerned is that, as was subsequently admitted by Mr Hogan, it was he himself who had indeed been in the premises removing computer equipment, disks and other equipment. They were, as is admitted and I find, put in various black bin liners, and perhaps with other items, and put over the fence.[31]Mr Hamilton again asked Mr Hogan whether he could conduct a search, and made it clear to Mr Hogan that his refusal to allow the search could lead to his being found in contempt of court and liable to imprisonment and/or a fine. Mr Hogan said he was not prepared to permit any search to take place, and added words to the effect of “Prison. I like the sound of that.” I trust those words do not come back to haunt Mr Hogan. Mr Hogan then ordered Mr Hamilton and Miss Sheering to leave the property, which they immediately did, and Mr Hogan then appeared down a street behind the back of the row of terraced houses.[32]Mr Hamilton and Miss Sheering retreated to their car outside the premises and shortly after that, at about four o'clock, Mrs Hogan returned with two young children. She got out of the car. Mr Hamilton reminded her of the consequences of non-compliance, particularly that she could be found in contempt of court, and the possible consequences, and as she got out of the car she referred to a telephone call with her husband. She said her husband had told her not to allow the search and Mr Hamilton reminded her that it was her decision whether to allow the search, not her husband’s, and she said she would not allow it.[33]I need not deal with the detail of some of the subsequent events. For present purposes it is apparent, and she admits, that in her car she made and received further telephone calls, at least with her husband -- whether she talked with anybody else does not matter. At some point she asked her son to get out of the car, and her son went into the house with keys in order to lock the back door. It is apparent that it had been unlocked, and it is now apparent on the state of the evidence that if it was not the purpose of it being unlocked, at least the effect of it being unlocked was to allow Mr Hogan to remove articles from the premises.[34]At about 4:15, while Mrs Hogan and the children were still in the car on the driveway, Mr Hogan reappeared from the street and attempted to enter the front passenger door of a vehicle in which another partner of Ross & Craig was seated. He was asked not to do so and he stopped. Both Mr and Mrs Hogan were then warned by Mr Hamilton of what he had seen and heard so far, and that he would report to the court. He warned them of the seriousness of the matter and tried to emphasise they should obtain immediate legal advice, and meanwhile they should comply with the order. He again effectively challenged Mr Hogan that he was the man removing equipment from the house. Mr Hogan appeared unconcerned.[35]Mr Hogan, at that point, asked to see some photographic identification and Mr Hamilton produced his driving license and a Costco membership card which also has a photograph of him. Mr Hogan made some remarks that the photo identification did not bear any resemblance to his physical appearance. Mr Hamilton asked Mrs Hogan one more time whether she would allow the search. She said she would not and Mr Hamilton and Miss Sheering then left the location.[36]Mr Hamilton then met Mr Koski and others in the search party, and the next relevant event for these purposes was a further application to the court. An application was made back to Park J for, as I understand it, an application for a bench warrant. At least the matter was drawn to his attention, and Park J had a conversation with the supervising solicitor on the telephone. The result of that conversation was a further order by Park J in which he ordered the issuing of a bench warrant for the arrest of Mrs Hogan. He also ordered that the fact of the issue of this bench warrant be not communicated to Mrs Hogan, Mr Hogan or anybody else.[37]By this time various members of the search party had gone to the premises of J & V Printing Services Limited, which were about a mile and a half away from Mr and Mrs Hogan’s house. By this time too, Mr and Mrs Hogan had contacted solicitors, and at about or shortly after this time there was a telephone call from a Mr Lucas Bateman(?) -- a solicitor contacted by the Hogans -- who confirmed that he was acting for the Hogans, and he had advised them they should comply with the search order, and to the extent they were in breach, they should purge any contempt that had taken place. This was reported by Mr Hamilton to the applicant’s solicitors.[38]Mrs Hogan said that at about six o'clock she and her husband informed Mr Hamilton and the applicant’s solicitors that they would after all comply with the terms of the order. The evidence of Mr Hamilton and/or Mr Koski that they were indeed told that there would be compliance, and they were invited into the premises -- but that was not until eight o'clock or after eight o'clock that same evening, by which time it was too late to do anything effective. I find, having heard the evidence, that Mr Hamilton and/or Mr Koski are right about that and it was not until eight o'clock, and it was not as early as six o'clock, that they were told that there could be a search of the premises and at which point they were invited in. Arrangements were made to go at nine the next morning, but they were overtaken by events.[39]The events in question were these. At about ten thirty in the evening, in response to the bench warrant, Mrs Hogan was arrested by the police. She was taken to the police station. The doctor’s appointment which she had attended that day was one at which she was informed that she was pregnant. She was not well, and in order to be satisfied that she was fit to travel she was taken to the A & E Department of the local hospital that evening and she was given a pill. She was obviously deemed to be fit for travel, because the next day, the 16th, she was brought to court and appeared in front of Park J. By then Mr Hogan had retrieved material which he had removed from the premises, and he handed over before the hearing before Park J a laptop computer and some disks. The parties, having appeared in front of Park J, and Mrs Hogan having been released from custody, the parties then retreated back to Yorkshire, and that evening the search and seizure order was executed at the premises with the cooperation of the Hogans. There is no complaint about their level of cooperation at that execution.[40]It will be remembered that there are disclosure obligations in the search and seizure order. Those took some time to be complied with. The Hogans thereafter, and until very recently, were not represented by solicitors. They made various attempts at disclosure, and it is common ground, and accepted, that disclosure of the materials required of them did not occur until very recently. Mrs Hogan says, or would say, that she knew little of the relevant events and I will come to that in due course. I have missed out one step in the operation. At the hearing on 16th, in front of Park J, Mr Hogan was joined to the proceedings, and in effect, a similar search and seizure and freezing order was ordered against him as was ordered against Mrs Hogan and Miss or Mrs Parkinson. I should have said in addition to the search and seizure order, a freezing order was made by Park J on 15th, freezing Mrs Hogan’s assets up to a level of £300,000 and containing the usual disclosure provisions. In due course Mrs Hogan complied with those disclosure provisions and a failure to comply with disclosure provisions in the freezing order is not the subject of the committal proceedings against Mrs Hogan.[41]However, when a parallel order was made against Mr Hogan he did not comply timeously and there is a complaint about his failure to comply timeously with the provision of information within the disclosure provisions of the freezing order, as well as a complaint made against him in relation to his failure to disclosure information as to customers, and so on. I will come to that when I deal with the various heads of contempt alleged.[42]These contempt proceedings now before me were commenced by an application issued on 16th August 2004. In relation to Mrs Hogan the following heads of contempt are alleged:(1) she refused to allow the supervising solicitor, or any of the search party, to enter the premises, and refused to allow them to search the premises.(2) She received and made telephone calls without the permission of the supervising solicitor.(3) She received and/or made a telephone call to the third defendant, in which she informed him of the fact that these proceedings had been brought, and that the search order had been made.(4) She permitted, or suffered, or caused, or conspired with the third defendant to remove the listed items from the premises in order to conceal them; namely CDs which contained infringing copies of the claimant’s copyrights, which are then identified, and to remove a laptop computer from the premises which contained further listed items.(5) She failed to give the claimant’s solicitors any of the information she was obliged to give immediately under paragraph 19 of the order.(6) Although having been served an affidavit on 19th July 2004, and having been informed of her obligations under paragraph 20 of the search order, she has failed to give the information required by paragraph 19 of the search order.[43]So far as Mr Hogan is concerned, the breaches of the order are as follows;(a) He refused to allow the search party to enter the premises.(b) He told the first defendant not to allow the search party to enter the premises.(c) He ordered the search party to leave the land pertinent to the premises and(d) he removed listed items from the premises in order to conceal them and frustrate the purpose of the order, such listed items being CDs containing copies of the relevant software, some hard copy sheets containing instructions as to how to use the printing system, and a laptop computer which contained documents relating to the supply of copies of the software. It is also alleged that he is in breach of his obligation as set out in paragraphs 9 to 11 of the freezing order -- that is disclosure of his assets -- and lastly, that he is in breach of his obligations under the search order in that he has failed to give the information required thereby.[44]I will deal with my findings in relation to each of the two Respondents separately. First, Mrs Hogan. By the time the application came before me, although they had made the application, in the light of the events that have happened the claimants were not actually pressing for the committal of Mrs Hogan for reasons which will become apparent. They had probably realised that she was effectively acting as the tool of her husband, and perhaps little would be achieved, other than making people realise the importance of court orders, by pressing for her imprisonment. However, they were forced, effectively, to continue the application, and the stance adopted by Mrs Hogan was that she did not accept that she was technically in contempt of any orders at all. It is also fair to Mr Anthony Peto -- who appears for the claimants -- to point out, as I pointed out to him, that once the contempt mechanism is invoked, then the court has its own interest in the proceedings, because the court itself is interested in compliance with its own orders, and that it is not simply open to a party to abandon contempt proceedings and expect the court to go along with that. Mr Peto did not seek to take that course.[45]I indicated at an early stage that in my view of the evidence, and in the light of the claimant’s attitude, there was no risk of Mrs Hogan being committed by me to prison. So to that extent the sting was taken out of the proceedings. However, Mr Koski was called and examined on behalf of Mrs Hogan and Mr Hogan, as was Mr Hamilton, and I have to rule on whether or not there was a contempt for the reasons given, and also because Mr Peto took the view that since a bench warrant was issued, he had to justify the fact that there was a contempt which justified the issue of that bench warrant.[46]I have made, I think, appropriate findings in relation to this matter and subject to submissions made by Miss Edington -- who appears for Mrs Hogan -- those facts almost speak for themselves in demonstrating that in respect of all but one of the alleged contempts, Mrs Hogan was clearly, and in my view flagrantly, in breach. I will deal with that in sequence; first, to the allegation that she refused to allow the supervising solicitor, or any of the search party, to enter the premises, and refused to allow them to search the premises. I find this established beyond reasonable doubt not only because Mr Hamilton says it happened as a matter of fact, but also because Mrs Hogan admitted it. She effectively admitted practically all the matters alleged against her that form the substance of the committal application, and it is perhaps to her credit that she does so. What she says is that she was told to do it by her husband. I will deal with Miss Edington’s submissions on that in due course, but I have already found, as a fact, that she refused to allow the search, and she refused it on more than one occasion. I find that she did so knowing that there was a court order, and I find that she did so knowing that she risked imprisonment and/or a fine and/or sequestration because she was in breach of that court order. It was, in my submission, a flagrant breach[47]In relation to that, Miss Edington says that her client has the defence of coercion or duress. She says that she was effectively coerced by her husband and she invoked what she says is a parallel defence which operates as a defence to criminal proceedings. I was not taken to any authorities which indicated the extent to which coercion is a defence in criminal proceedings, but I am quite satisfied that whatever that extent may be, there is absolutely no parallel here and Mrs Hogan cannot rely on any coercion. She obviously received clear and compelling instructions from her husband, but that does not come remotely near to any degree of coercion which it might be said would be relevant to the fact of contempt as opposed to mitigation. She received her instructions from her husband and complied with them. A person who is faced with a solicitor bearing a properly stamped and sealed court order, fails to obey that order at his or her peril. Mrs Hogan had no business accepting her husband’s instruction not to allow the solicitor to enter the house, and I find that her breach was flagrant and wilful and coercion on the facts of this case can be no defence. There is no question of threats of physical violence or anything approaching that level of coercion. If coercion is relevant at all then in this case it is simply insufficient to amount to any defence whatsoever.[48]I therefore find that the first head of contempt is made out against Mrs Hogan. The next head is this: that she received and made telephone calls without the permission of the supervising solicitor. The facts are clearly made out and I find them established beyond reasonable doubt, not least because again, in her witness statement and when cross-examined, Mrs Hogan frankly admitted those calls and even admitted that she made the call in the house rather than receiving it. It is to her credit that she has done so and does not dispute the facts. Therefore, the facts of the breach are clearly established. The only defence put forward by Miss Edington to that is a defence based on the Human Rights Act. She relies on Article 8 and Article 10 of the Convention, which is part of the Human Rights Act, and she says that the provisions in the order which prevent Mrs Hogan from making and receiving telephone calls are an infringement of those two Articles. Article 8 is as follows:
“(1) Everyone has the right to the respect of his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with law and is necessary in a democratic society (then I can omit some irrelevant words) or for the protection of the rights and freedoms of others.”
Article 10 reads as follows:
“Everyone has the right to freedom of expression. This right should include: to hold opinions and receive and impart information and ideas without interference by public authority and regardless to frontiers.” (I need not read the rest of paragraph 1) Paragraph 2 reads as follows: “The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society (I can then omit some words) for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciary.”
[49]I do not think the restriction on making telephone calls falls within Article 8. If it is capable of falling within anything it falls within Article 10. However, even if it does, it is quite plain to me that it is open to the court in an appropriate case to make an order restricting a person’s right to receive and impart information via a telephone in a case such as this, because it is necessary for the protection of the rights of others, that is to say the claimants. The restrictions on the right to make and receive telephone calls are clearly designed to prevent people tipping off others about the fact of the execution of an order, and are particularly appropriate where an order is to be executed against two premises at roughly the same time. There may be other reasons for making it as well. It is a temporary restriction and there is a saving for the obtaining of legal advice. It is quite clear to me that the European courts, having sanctioned the old Anton Pillar jurisdiction, this temporary restriction on the rights of the claimant is well within the exceptions to Article 10 (and if necessary Article 8) as being necessary and appropriate for the protection of rights of others.[50]That conclusion makes it unnecessary for me to consider how Articles 8 and 10 would operate in these purposes to exonerate or otherwise someone from the effects of an act which would otherwise be a contempt of court. I need not go into that because it is quite clear to me that the provision is justified by those exemptions from articles 8 and 10. Miss Edington did not put any authorities before me on this point, but I do not think I need them. I have come to that conclusion on what is quite obvious from the provisions themselves. Miss Edington also said the provisions were oppressive and ambiguous. I find them in their terms to be neither.[51]I therefore find that the second head, the making and receiving of telephone calls, has been established. The third head goes with that, that is to say that she received and/or made a telephone call to the third defendant in which she informed him of the fact that these proceedings had been brought, and that the search order had been made. For the reasons I have just given, I find that to be established. Fourth is this: She permitted or suffered or caused or conspired with the third defendant to remove the listed items from the premises. It has been admitted, and I find, that in the time when Mrs Hogan left to fetch her children from school Mr Hogan gained access to the premises and did indeed remove listed items from the premises, and at the same time, effectively, he refused to admit the claimant’s representatives and the supervising solicitor when he did not answer the door. Therefore half of this allegation is established. However, there is no evidence whatsoever that he entered by arrangement with her as opposed to merely taking advantage of her absence, and so the allegations of conspiracy are not made out.[52]Furthermore, there is no evidence in relation to the telephone call that she made to him before she left the premises that she conveyed or received any understanding that he would or should come to the premises and take advantage of her absence. In those circumstances I do not consider there is any material for suggesting that she permitted, suffered or caused him to enter the premises and remove the offending material. If I have to make a finding on the point, I would find that she knew nothing of his intentions in that particular respect, but I probably do not have to go that far. It is sufficient for these purposes for me to say there is no evidence on which that charge can be made out. I therefore find that that head of contempt is not made out.[53]Paragraph 5 alleges that she failed to give the solicitors any of the information she was obliged to give immediately. I find that is (perhaps technically) made out. Mrs Hogan’s involvement in the enterprise, however, was peripheral. On her evidence, which I accept on this, she was asked by her husband if he could use her bank account and name for the purposes of selling items on eBay and receiving payment. She knew little of the enterprise. She was assured by him it was legal. She addressed parcels and filled in her own name as the return address, and therefore might have had some limited information about customers. If she could have gone in the house she might have remembered some. However, it is quite clear to me that her knowledge of the details of the events was likely to be slight. Of course slight knowledge must be imparted, and to the extent that she did not immediately tell the solicitors that she had information; she was technically a breach. However, I do not regard that as significant as the other breaches, because she had little information to give, and I would accept that on the day the focus of events was getting access to the house. However, technically that obligation was not complied with, but against the background of the other events that is of no great significance.[54]Lastly, there is the complaint that she did not verify those matters on affidavit in time. Again, technically that was true, but it has now been complied with as far as the claimants are concerned. I do not think it necessary for me to say any more about that.[55]The end result as far as Mrs Hogan is concerned is therefore that three serious items of contempt have been established. However, since it is apparent to me that she was effectively the tool of her husband in this matter, and that she was not acting deliberately so as to obscure her own involvement, and not acting deliberately so as to shield her own involvement from the eyes of the claimants and was the victim of her husband. I would not, even if Mr Peto had pressed me, considered it appropriate to impose a sentence of imprisonment upon her, serious though her breaches are. I take into account the fact that she has children to look after, and I take into account to a limited, but only to a limited, extent the fact that she is now several weeks pregnant and, as I understand it, perhaps still suffering from morning sickness. However, the principal exculpatory matter is effectively that she was the tool of her husband.[56]I also take into account to a limited extent the fact that it is perhaps understandable why a woman, suddenly confronted on the doorstep by a person with a search order, should instinctively wish to telephone her husband. It is true that she was told that she should not, but I can see to some extent why a woman in Mrs Hogan’s position would be a little alarmed, and would feel that she needed to talk to her husband. That does not make it any less a breach of a court order, but it is something I take into account when I consider whether it is appropriate to sentence her to a term of imprisonment in respect of the telephone calls that she admits she made and received.[57]She gave some evidence that she insisted her husband restore the items to the house that he had removed from the house. I accept her evidence. I think she was more level-headed about this than her husband was, and I take that into account as well.[58]Taking all those matters into account, as I indicated yesterday at an early stage, she will not go to prison. She, like her husband has, since these events, petitioned for her own bankruptcy and been adjudicated bankrupt. I see no purpose in fining her for her contempt. She was arrested -- I do not suppose for one second she enjoyed being arrested or her night in the police cells before being brought down here to court -- and the consequences of her breaching the order have been brought home sufficiently to her, and I do not think it necessary to impose any further sanction. However, I make it clear I do find the contempt established to the extent that I have found, and I reject Miss Edington’s submissions to the contrary.[59]I turn now to Mr Hogan. The intention was, as I understand it, originally that Mr Hogan should give evidence. He has served some witness statements which I read before these proceedings started. However, in the light of events as they unfolded, and of events as they no doubt seem to be becoming established, I was told this morning by Mr Summers that his client would not give evidence. That means that his statements do not stand in evidence insofar as they contain admissions which Mr Peto relies on. Those statements contain admissions that, amongst other things, he was indeed the man in the house.[60]It is accepted on behalf of Mr Hogan that he did indeed instruct his wife not to let the search party enter the house, and it is accepted that he conveyed that to Mr Hamilton himself in the course of the events which I have outlined. I find against Mr Hogan that he deliberately and contumaciously refused to comply with the order. First, he knew about the order from his wife, and second, outside the house he was told by Mr Hamilton of the order, even though not formerly served on that occasion.[61]Where does that leave him in respect of the contempt allegations? Again, I will take them one by one. As to the first: He refused to allow the search party to enter the premises. That is established to the hilt and is indeed admitted by him. The question arises as to whether that is technically a contempt, bearing in mind he was not a party to the proceedings in question, and had not been formally served with an order. I find that no papers were clearly shown to him at the time. However, I do find that it was quite clear to him what was going on and that an order was being executed.[62]Mr Summers very realistically accepted that in giving orders not to allow a search of property, which he knew was ordered by a court, Mr Hogan was in contempt, and effectively became a party to the contempt, because he was directing his wife to commit it. That is his wife’s case. His wife’s case on coercion makes the case against Mr Hogan even stronger in this particular respect. So I find that he was in contempt under the second head, when he told the first defendant not to allow the search party to enter the premises. As to the first, that he himself refused to allow the search party to enter the premises I find that as a matter of fact he did exactly that. It was urged on me that he was not liable directly as a person in responsible control of the premises within the terms of the order, because the order was not explained to him. I find that against Mr Hogan. He was in responsible control of the premises. The order is quite clear in its terms. It says that those in control of the premises have to allow the search party to enter. Control of the premises had in effect been yielded to him by Mrs Hogan, and he was, if it adds anything to the case, therefore, also in contempt in his own direct refusal. As to the claim that he ordered the search party to leave the land pertinent to the premises, that seems to me to add little or nothing to the other heads of contempt. I do not find it necessary to make any particular finding in relation to whether that is a contempt or not.[63]As to (d) the removal of listed items from the premises to conceal them, I have found the facts -- and they are admitted -- and I find, I think without much opposition from Mr Summers, that since he knew there was a court order for a search of the premises at least, if not seizure, that he had sufficient knowledge that what he was doing was effectively a breach of the order, or at least calculated to defeat the whole purpose of the order. The purpose was to search for something which ought to be left on the premises. There is no indication of his activities in that respect, or that he knew that there was an express prohibition on removal of items from the premises, but I do not think that matters. I think what he did was an act calculated to defeat the order of this court, and they are the sort of acts which this court cannot tolerate lightly, or cannot tolerate at all if its orders in this respect are to be complied with. I therefore find that head of contempt established.[64]Next, there is the breach of his obligations to disclose matters under the freezing order. I think it is accepted that he was technically in breach of that obligation. However, in the context of this case, and bearing in mind there has now been disclosure, other than finding there is a contempt in relation to that I do not take that further into account in deciding what sanctions should be imposed upon Mr Hogan.[65]As to the breach of his obligations to make disclosure of the business transactions involved in this case, there was a failure to make a timeous disclosure. What happened in relation to that was as follows. Mr Hogan made, as I understand it, little, but not much, disclosure of relevant matters in the period between the execution of the order and yesterday. Yesterday it appeared that he was willing to undergo an interview in order to provide further information, and in the light of that and in an attempt to see whether a lot of the heat could and would be taken out of this application, I allowed a short adjournment so that the interview could take place. I know nothing of the detail of that, but suffice it to say for these purposes that Mr Hogan would say that he has provided all the information that he can, or as much of the information that he can. The claimants are themselves not satisfied that they have yet received full disclosure. However, they do not pursue that particular matter before me and prefer to investigate whether the disclosure they have been given is full or not.[66]In the circumstances, other than to make a finding that historically there has been a breach of timeous disclosure obligations, I make no other finding in relation to that. In relation to that particular head, Mr Peto invited me to adjourn further consideration of that particular breach so that his clients could bring it back before the court if necessary and having considered what has happened hitherto. They think that there has been a breach because they have not been given full information. I am unhappy about having that hanging over Mr Hogan, and it was accepted on behalf of Mr Hogan by Mr Summers, that were I to make such rulings on that as were appropriate at this stage, then should the claimants decide to revive the same allegation in the future, then no estoppel or other point would be taken against them by Mr Hogan, so that the application would be heard on its merits at the time. Therefore, in considering what I should do with Mr Hogan, I do not put in the scales with any significant weight at all his failure to make timeous disclosure. Whether he has made adequate or inadequate disclosure is not something that I can rule or indeed I am invited to rule on at this stage.[67]It follows, therefore that I have made very serious findings of contempt against Mr Hogan. He has brought about a deliberate contempt of court by another. He did it by acts which he performed more than once, knowing that there was a court order that certain events should happen. I am quite satisfied on the basis of Mr Hamilton’s evidence, and indeed Mrs Hogan’s evidence, that the seriousness of the situation would have been brought home to Mr Hogan, and I am quite satisfied that he embarked on a course of conduct designed to frustrate the orders of this court.[68]Freezing orders and search and seizure orders are orders which are not uncommon these days. Where disclosure obligations are provided in orders, they are provided for a good reason. They are provided so that orders can be policed and/or so the claimants can be put in possession of information which they need. Where search and seizure orders are made, they are made because the interests of the claimant and of justice require it. The court can and should expect these orders to be obeyed without question by those upon whom they are served, and those who do not comply with those orders can expect little mercy from the court and can expect serious sanctions to be imposed upon them if they do not. The system simply will not work if people think that they can ignore court orders and destroy evidence, or remove materials from the scene to which claimants are entitled. Those who do so can expect terms of imprisonment and I therefore have to consider the extent to which it is appropriate, or may have become inappropriate, to impose a term of imprisonment upon Mr Hogan.[69]I will not keep Mr Hogan in suspense any longer. I will say at this stage that by the skin of his teeth he has escaped receiving a term of imprisonment from me today. The main reason that he has escaped that is effectively because as far as is apparent at the moment he did comply with the order in some senses, but rather belatedly. I have referred to my findings that by eight o'clock in the evening the search party had been told that they could search the next day, and the next day before an order was made against him Mr Hogan did produce his laptop computer and disks. I should add that in the evening of that day, as I have indicated, the search and seizure order was executed, and some further documents were removed pursuant to it. It has not been suggested to me that that belated compliance can in any sense be shown to be inadequate. For example, it has not been shown to me that a reconstruction of computer records shows that either records were deleted from the laptop, or that there must be some other computer or there must be some other documents not yielded up. That is the sort of material which one sometimes sees on these applications where it is true. It appears to me that I can probably find, or probably satisfy myself for the purpose of sentencing, that Mr and Mrs Hogan belatedly decided that they would comply, and belatedly, and subject to the outstanding disclosure points against Mr Hogan, decided to put the search party in possession of relevant material. As Mr Peto accurately points out, we will never know, or we may never know, if there was some untraceable item hidden from the search party, but I think I can just treat this case as one in respect of which Mr and Mrs Hogan sought, in effect, to comply and to purge their contempt.[70]Mr Hogan’s acts have seen his wife have a very unpleasant experience on the doorstep, and a very much more unpleasant experience when she was arrested that evening, taken to a police station, and brought to court the next day. I hope that will be a lesson, at least to him, should he ever come across a court order again. Mrs Hogan has certainly, in my view, suffered enough and he is perhaps fortunate that he benefits to some extent from her suffering.[71]However, because of his attempts to put matters right, and as I say, by the skin of his teeth, he escapes a term of imprisonment I will say to him frankly, so that he can hear, that my inclination until very recently was to make him serve a term of imprisonment, somewhat longer than that sustained by his wife. But at the end of the day I do not think any useful purpose would be served as far as he is concerned by sentencing him to imprisonment, and by not sending him to prison I do not think that I would be diluting the message which should go from this court, which is that the court expects orders to be complied with, both by those on the doorstep, and by those who stand behind those on the doorstep and who have acted in a manner which some might think is rather cowardly in this case.[72]Therefore, I will not send Mr Hogan to prison. However, I do not think that his breach should go without any sanction whatsoever. He has been adjudicated bankrupt. The financial consequences of this case as far as he is concerned will be serious. If the claimants are entitled to recover any significant costs at all, leaving aside any damages that they may or may not be able to recover, I think the court should to some extent mark the seriousness of the act which he did, but it in some proportionate way. I propose that he should be fined £5,000; and it would be a lot more were he not adjudicated bankrupt, and were it not for his present position. I will order therefore that he be fined £5,000 in respect of his breach, in order to mark the court’s view of the seriousness of this matter, and in my view, he can count himself very lucky that he is not serving at least seven, and potentially rather more, days in prison in respect of his contempt of court.[73]Mr Hogan, would you stand up please. Mr Hogan, I do not want to treat you like a prisoner in the dock, but I do want you to understand the seriousness with which I personally have viewed this matter, and I want you to understand the very, very narrow margin by which you have escaped going to prison. Do you understand that? MR HOGAN: Yes, sir. MR JUSTICE MANN: Right. Thank you very much.

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