Prosser v Prosser [2011] EWHC 2172 (Ch)

"It is ordered by consent ... preservation of assets 4 In the part of the Order the following terms are defined. 4.1 'The property' shall mean 1 St. Mary's Close, Welwyn Village, Herts, AL6 9RL 4.2 'Proceeds of Sale' shall mean any moneys paid by purchaser of the Property for the Propertybut subject to the following deductions: (i) professional expenses incurred relating to the sale of the property including estate agents' fees; and (ii) the Sanders' moneys. 4.3 Sanders moneys shall mean any moneys owing to James Albert Sanders and KathleenElizabeth Sanders which are secured against the Property by registered charge dated 6th March 2002 ... 4.4 The nominated bank account shall mean a UK bank account of whom the account holder isMaddersons, the claimant's solicitors, and which is nominated by Maddersons to hold the proceeds of sale. 5. Until judgment on the application notice or further order in the meanwhile the defendant shallnot enter into any arrangement or agreement whereby further loans are secured against the property and/or further charges or mortgages are granted over the property. 6. If the Property is sold, the defendant shall instruct his solicitors acting on the sale that theproceeds of sale are to be remitted to the nominated bank account forthwith. 7. The defendant shall be entitled to draw the following moneys from the nominated bankaccounts: 7.1 reasonable living expenses including, if appropriate, the provision of nursing home serviceswhich shall be agreed in advance between the parties or, in the absence of agreement, either party shall have liberty to apply to the court; 7.2 reasonable living expenses incurred in relation to the defending of these proceedings. 8. The defendant shall swear an affidavit setting out all his assets exceeding £1,000 in value whether in his own name or not and whether solely or jointly owned giving the value, location and details of all such assets and serve such affidavit on the claimant by 4.00 p.m. on 23rd March 2010. ..."

"TGE [Mr. Edwards] attending at Mr. Barham's home where TGE met Mr. Barham [TB] and Mr. Prosser [RP]. TGE explained to RP in further detail the proceedings, said that the claim form had been issued but we were still awaiting the particulars of claim ... Then went on to read in detail the freezing injunction. Agreed that we would meet on Wednesday of next week at 2.00 p.m. to take further details but in particular to go through the bank statements so we can come up with an explanation as to how the money had been dealt with. Explained that the freezing injunction would be in place until such time as we had the final hearing. This would be the first open day after 20 April. However, RP might be content to leave the freezing injunction in place and if so that meant that we would not have to file any evidence and effectively disclose our hand at this stage. RP said that he was not in a desperate position to sell. He could stay where he is for about one year. RP's concern is that he has given his word to an elderly gentleman that he will sell to him and feels that he might let him down. It was agreed that TGE would telephone RP's conveyancing solicitor in the morning to explain where we are and say it will be a little bit clearer next week as to whether or not we will be able to proceed. TGE went on to explain that if the property was sold the net proceeds of sale would be paid to the solicitors and RP would be able to draw reasonable living expenses which would include provision of nursing home services. ..."

"RP said at that time he just did not wish to lose TB as a purchaser. TB said that he believes a Mr. J. Ellis may have recently purchased the yard for £750,000."

"1. Assets 1.1 His property 1.2 approximately £4,000 in the bank - Barclays Bank, Welwyn 1.3 Bentley motor vehicle approximately £7,500 2. Liabilities 2.1 Moneys due to Mr. and Mrs. Sanders 2.2 Barclays Bank loan approximately £13,000 outstanding."

"TGE telephoning GT [Mr. Tooze] at Ewart Price informing him that we were acting for Mr. Prosser who was in litigation with his brother. There was a freezing order. TGE said for the time being could he [Mr. Tooze] please put a hold on the sale of the property and if he could explain to the prospective purchaser that there was this problem but we are hoping to resolve it and proceed next week. TGE told GT [Mr. Tooze] that the reason he was calling him was because that Mr. Prosser was concerned that he did not want to let the prospective buyer down."

"Dear Graham, I refer to our telephone conversation this morning when I gave you brief details of Mr. Prosser's dispute with his brother and the freezing injunction. This should all become clearer next week. In the meantime would you please notify the buyer's solicitors. Thanks. Tom Edwards."

"(Q) So something must have happened, Mr. Prosser, for him to send the money directly to you? (A) Something did happen. On 15th April Mr. Tooze was on holiday. What was her name? A Scottish name. This lady, anyhow, rang me up to say, 'Come over and sign up. It's all happening on Friday ... Monday, the 19th', so the words I said to her 'I'll get a cab over and then the cab driver can help me up the stairs'. She said, 'Don't do that, I'll come down to you.' So I signed. She came down and the exact words she said to me were, 'I shouldn't be talking to you.' I said, 'What's the problem?' She said, 'I'm an Arsenal supporter and I know who you are'. Anyway, the form was signed. On the Friday she rang me and said, 'Everything's happening on Monday. I'll be sending the cheques out on Monday'. (Q) Is this your conveyancing solicitor, Mrs. Fitzgerald? (A) Mrs. Fitzgerald. (Q) Mrs. Fitzgerald, yes? (A) This is on the Friday. She rang me up and said, 'I'm making out the cheques' she said. 'We want £1,000. The estate agents want four and a half thousand pounds and the Land Registry wants some money.' I went to see my bank on Friday to borrow £6,000 to pay for my six months' rent up front which they refused me after being with Barclays for 58 years. So I just said to the lady, 'You might just as well make the cheque out for my rent'. She said, 'That's no problem. Give me the details of their bank' which I did. She sent £6,000 for my rent for six months. (Q) You agreed to that? (A) Yes, I had to. I had no money. (Q) You knew, Mr. Prosser, at that time that the money should go directly to Maddersons, did you not? (A) I didn't know, no. I haven't finished. Then I said to her, 'Where's the rest of the money going after this?' She said, 'To your account.' I said, 'To my account?' She said, 'Yes.' I rang my bank at half past three and said 'Have I had a deposit?' She said, 'Yes.' She said to me, 'What are you going to do with it for security?' I didn't know what she meant by 'security'. When I knew it was in my bank I thought that's it. I thought it was, you know, the same as I got lifted with selling the place. (Q) What, you had a discussion with Mrs. Fitzgerald and you thought, because of that discussion, that somehow or another you did not need to send the moneys to Maddersons? (A) No. I thought everything was all right and that's right."

"He said he has not yet exchanged. [Mr. Edwards] asked him not to do so as he was using this as a bargaining chip to see if he could get £1,200 per month agreed."

"This Deed is made 19th April 2010 BETWEEN (I. Khan of (244 Barker Road, London E13 8HR) ('the Borrower') of the first part and (R. Prosser) of (Flat 1, Wendover Lodge, Church Street, Welwyn, AL6 9RL) ('the Lender') of the other part. NOW THIS DEED WITNESSES AS FOLLOWS: 1. In consideration of the sum of (four hundred and fifty thousand pounds (£450,000) (hereinafter called the 'Loan') this day loaned to the Borrowers by the Lender, the receipt of which sum the Borrower hereby acknowledges) the Borrower hereby covenants with the Lender to repay to the Lender the Loan within 12 months of the date hereof. If the Loan is paid in full within 7 days of the date hereof (the legal redemption date) then this will be accepted by the Borrower in full repayment without interest. If the Loan or any part of it is paid at any time after the said 7 days from the date hereof, the Loan or the balance of the Loan for the time being remaining unpaid shall bear interest at the rate of 1¼% (1.25%) per month (calculated on a daily basis) such interest to be payable monthly in arrears ... The Borrower acknowledges that they have been advised to seek independent legal advice before signing this document. The Borrower confirms having received a copy of this document."

"Signed as a Deed by the said Borrower in the presence of"

"Mr. S. Wilson, 19 Gordon Road, London E18 1DW"

"Our client's pension is £151 per week after tax. Our client confirms that he has the personalised number plate RKP 1. Our client has no information as to the value of this number plate. Our client believes that the value of the Bentley would not exceed £75,000. If your client requires a formal garage valuation, would they please go ahead and do so at his own expense. With regard to the sale of the property this is still on hold until such time as we are able to agree Mr. Prosser's weekly living expenses. As we said previously, Mr. Prosser in his old age does not wish to see himself short of money and therefore we suggest that the payment of £1,200 per week is not unreasonably (sic) particularly as regards to the value of the assets being frozen. ... "

"(Q) And it is clear from this letter, Mr. Prosser, that what Mr. Edwards is concerned about and most interested in is have you sold the property, where are the sale proceeds and indeed seems to want to know if Mr. Tooze has a current address for Mr. Prosser. So in that conversation you had with your solicitor you plainly did not tell him, did you, that you had sold the property and- (A) No. (Q) - that you had received the sale proceeds and that you had sent them abroad? (A) Yes. (Q) You did not tell him that, did you? (A) No. (Q) You did not tell him that again, Mr. Prosser, I suggest to you, because you did not want your solicitor to find out what you had done with the proceeds because you knew that would put him in difficulties. Do you have any comment on that? (A) No, no comment. (Q) I suggest to you, Mr. Prosser, that for this whole period you are deliberately suppressing telling your solicitor that you have sold the property, taken the proceeds and sent them abroad. If you had not, he would have found out a lot earlier than he did. (A) I told you earlier Mr. Tooze, I thought, was the solicitor selling my property and Mr. Edwards was my sort of legal solicitor."

"It would appear that the property was sold on 19th April and the transfer in favour of the transferees was registered on 30th April. We did not know the property had been sold until you telephoned us yesterday. We had previously written to the conveyancing solicitors asking for an update and for details of the sale. We are awaiting a response. With regard to service of the Order we note that this was received by our firm on 20th April."

"by paragraph 3 of a Consent Order dated 10th March 2010 of Mr. Jarvis QC ... the respondent was ordered to pay the proceeds of sale from [the Property] into a bank account held in the name of Maddersons Solicitors if the Property was sold."

"I am in ill health. I suffer with blood pressure, diabetes and irregular heart beat. I have difficulty walking and I am on prescribed medication of approximately 17/18 tablets each day. I attach at RKJP1 copies of a medical report dated 12th June 2010 from Dr. Lakshminarayak and 16th July 2010 from Dr. N. Uchenwoke."

"10. I was not in court when the freezing injunction was made but my solicitors had made me aware of it and I was told that my property could not be sold. 11. On or about 5th April 2010 I was contacted by my conveyancing solicitors and informed thatthey had received the form of discharge from Mr. and Mrs. Sanders' accountant Montpelier and that I could now safely go ahead and sell the property. 12. I wrongly assumed that this meant that I could sell the property without the effect of thefreezing injunction and in this respect matters had been sorted out. 13. I exchanged contracts for the sale of the property on 9th April 2010 and completion tookplace on 19th April 2010. 14. Following completion I was contacted by Mr. Tooze's assistant, a Mrs. Fitzgerald, whoconfirmed the sale and that they were in a position to forward the proceeds of sale to me. 15. I asked whether or not it was possible for her to make a payment of £5,970 to Mid-HertsExecutive Relocation in respect of six months' rent in respect of the new premises where I am now living. She confirmed that this was acceptable. 16. Following receipt of the proceeds I was in contact with a friend of mine, a Mr. Khan, who isan Indian gentleman whom I have known since 1985 when he was introduced to me at Tottenham Hotspurs when I was in all but name a director. 17. Mr. Khan advised me to invest the money in Hong Kong where he said I would get the bestrate of interest, 8%. 18. Mr. Khan arranged for the various papers to be forwarded to me which I completed and forthe investment to be made. 19. My instructing solicitor has asked me whether or not I can make arrangements for thosemoneys to be returned and I assume that I can. I have telephoned Mr. Khan almost on a daily basis but he has not responded. My solicitors have also telephoned Mr. Khan asking him to call back, but he has not yet returned their calls either. 20. My financial position at present is that as previous, apart from the fact that the credit in myaccount with Barclays at the moment is approximately £3,000. Again, this must be offset a loan from Barclays."

"I am now very concerned that I have been duped by Mr. Khan and that I have lost the whole of the investment of £450,000. The £450,000 is not under my control and I am not in position to deposit these moneys with the claimant's solicitors."

"I am bound to say - and I say this only in order to help the parties and to hear submissions - I have not reached any concluded view. I have not had the chance to digest the evidence that has been given and I would like to be provided with a transcript when you get it. But certainly, shall we say this. It has raised some very significant doubts about the veracity of the transaction involving Mr. Khan and indeed the existence of Mr. Khan. One of the ways of dealing with the contempt, a serious contempt application of this kind, is for the contempt to be purged. Mr. Prosser is, I am sure, listening to this and I understand that his present case, as expressed in evidence today, is that he cannot purge his contempt. He might like to know that provisionally I will be taking an extremely serious view of the failure to inform the police; the failure to ask Barclays to check where the money has gone; the failure to ask HSBC where the money has gone in Hong Kong (which can be done by Mr. Edwards who is a perfectly competent solicitor. He does not actually need to involve Mr. Prosser at all); also Standard Chartered as one of the three entities to which money was apparently sent. As I say, if this money is returned and placed as the Consent Order required with Maddersons, then of course any contempt that is found will be visited with a rather different kind of penalty than the kind of penalty that would follow if this money has genuinely been spirited away or I were to find the money has been spirited away in the way that Mr. Prosser's evidence might lead me to believe ... I say this. If no such investigations are initiated by the next time then I am afraid, obviously, there will be a much greater weight to the submission that I am sure you are going to make, Mr. Tritton, that it is to be inferred that this is a scam and that the money has simply been spirited out of the jurisdiction to avoid the consequences of the order. I think it is really useful that we have had to have this break to give Mr. Prosser and his solicitor the opportunity to make the investigations which really ought to have been made and for him to have had an opportunity to see whether there was anything more that can be done."

"We have been speaking with enquiry agents who have informed us that they believe that they may be able to find out whether or not the three accounts in Hong Kong still have the £450,000. We propose to instruct the enquiry agents to make these enquiries. However, we are reluctant to do so if you are pressing ahead with a return date and this information will not be available at the time of the adjourned hearing."

"However it occurs to us that it would probably be sensible to wait until the enquiry agents have completed their enquiries. We would not wish to alert or scare anyone off. Would you please let us know if you agree?"

"In your letter dated 1st October you have suggested that the police and banks should not be informed until the enquiry agents have completed their negotiations. However, we have been informed by Mr. Steve Prosser that enquiry agents use discreet methods to access accounts and therefore we see no reason why there should be any continued delay in reporting this matter to the respective authorities."

"1. Telephone Number He said that they're having difficulty finding out the name behind the telephone number. He said there is something peculiar about this number and that the level of security around it goes beyond what is normal. Did not elaborate. [The number in question was Mr. Kahn's mobile phone number.] 2. Hong Kong accounts He said very little at the moment is coming out of Hong Kong. Their first impression is that these accounts could be dormant. If they are not successful with regard to the HSBC accounts they will have a look at the Standard Chartered accounts."

"He said that despite extensive efforts they have not been able to get behind the Hong Kong accounts although he did confirm they are still live. We then discussed Mr. Khan's mobile telephone number. He said that it definitely does not belong to Mr. Khan but said that the level of security around this number indicates that it is someone with Government contacts."

"We are now arranging for this matter to be reported to the police and the Fraud Department at Barclays Bank."

"3. During the course of the committal I have sat and listened in dismay as inferences and suggestions have been made in respect of the defendant's actions which may have resulted from my conduct of this litigation. ... 5. I met with the first defendant on 15th March 2010 and have a file note which records: '... Then went on to read in detail the freezing injunction ... explained that the freezing injunction would be in place until such time as we had a final hearing. This would be the first open day after 20th April 2010 ...' 7. On 25th November 2010 I checked my files and could not find a letter or note where I informed the defendant of the consequences of his breaching the order. Even though my notes say on 15th March 2010 'I read in detail the freezing injunction', I now fear that I may have given the defendant the impression that he could not sell his property, as opposed to saying that he could sell it albeit it that he must additionally 'instruct his solicitor acting on the sale that the proceeds of sale were to be remitted to the Nominated Bank Account'. This is where the confusion may have arisen. ... 9. At paragraph 35 of my previous affidavit I made reference to the Deed. On 9th June I met with the defendant and he gave me a copy of the Deed. When I explained its content and effect to him it was clear to me that the defendant was shocked as he clearly thought he made an investment which would give him a return of 8% per annum as opposed to a loan. However the defendant was aware that the money was tied up for 12 months."

"Let me tell you, for both sides' benefit, the way my mind has been going in this, if it was not clear from yesterday which I rather suspect it was. It is pretty clear to me that Mr. Prosser knew about the order and decided nonetheless, perhaps or not I will have to determine, either deliberately or not, but knew there was an order and decided to invest the money overseas. That much is clear. He did not tell his own solicitor of what he was doing which was obviously a bad thing. Whether it is wilful or what level of blame attaches is another matter and how confused he was, are all matters I will have to determine. But he did that and he did it I think for the reason that he wanted not to have the money here that his brother could get his hands on. That much is pretty clear. What is not clear is whether he has been duped (to use his own words) or whether he is now able to get the money back. The view that I take of any penalty that is to be imposed, which is a matter of the greatest gravity, is going to depend upon whether all this is found to be, as you say it is, a scam, a pack of lies or whether he has been duped. He is in the most unfortunate position albeit having done something he should not have done, having now found himself in a position where there is nothing he can do. If that were truly the position, and at the moment we are really in the dark about it, I have to make inferences on the basis of whether I believe Mr. Prosser or not, which is not the best position to be in and which is why I adjourned the matter last time. ...I have made it perfectly clear that I regard this as a very serious case, but I am not in the business of sending 81-year old people to prison unless there is a very serious contempt to be dealt with that must be marked in that way."

"If it is the case in fact that the story about Mr. Khan is not correct, let us put it more neutrally, and that there is more to be told as to how £450,000 came to be transferred on Wednesday, 21st April 2010 to three unknown named institutions in Hong Kong, if that is the case and Mr. Prosser knows more and he discloses that material to you and eventually to the court, I will not be holding it against him specifically. I am not guaranteeing I will not hold the whole events against [him], but it is far more likely that I would take a beneficial view of his having come clean than I would have his having not come clean, and it being established by third party mechanisms that the story he told was not correct. ... Plainly it does not cost any money to ask the police to pursue an enquiry. What I would like to see frankly is a great deal more co-operation between the parties, and a great deal more cooperation aimed at establishing what really happened to this money. It cannot be beyond the wit of man to ascertain whether there is a thief who has stolen the money or not. It may not be possible to identify the thief, but it can be pretty clear from circumstances that can be discovered that there has been a theft."

"I have been to see Mr. Prosser today to confirm the details of his account of dealings with Mr. Khan. He agreed that he had met Mr. Khan informally at the Spurs Football Club Boardroom in 1985 on a few occasions and had kept his business card. He confirmed he had not had any contact with Mr. Khan until he telephoned him using the land line telephone number on his old business card for advice about investing moneys from the imminent sale of his bungalow. He agreed that the number on the card was 01 407 ... and that he had converted the number to the new London format to make the call. He originally told me that he had dialled 0207 but today said he was believed he had dialled 0208. He confirmed that he had not used his land line telephone as he had his telephone handsets packed up ready for his move to Wendover Lodge. He agreed that he believed he had used his late partner's mobile telephone to call Mr. Khan (07949 374527). He confirmed that he telephoned Mr. Khan on or around 16th April 2010 and arranged to invest £450,000 in Hong Kong banks at a return of 8% per annum. He said he received a package by courier on Saturday 17th April 2010 which contained blank Barclays Bank transfer forms, information about where to send the money and a mobile telephone contact for Khan written on an envelope. He also confirmed that the Deed was enclosed. I have obtained call data for all of the telephones Mr. Prosser had access to in April 2010 i.e. his late partner's ... his own mobile ... his car phone ... and land line ... None were used to contact a London number around the middle of April 2010. Taking into consideration the financial intelligence about Mr. Prosser, the circumstances of the current court case involving his brother and the lack of evidence of the Mr. Prosser ever having contacted Mr. Khan in April 2010, leads me to conclude that his account of being the victim of fraud is untrue. I have informed him that I intend to make an application to have this fraud crime classified as being a non-crime. With regard to points 2 below, the Deed is dated 19th April 2010. Mr. Prosser tells me he received it 17th April 2010. This also tends to show that his account is inconsistent and unlikely. With regard to points 3, 4 and 5 we know the three Hong Kong accounts exist and that moneys were transferred from Mr. Prosser's Barclays Account as described by him. Given my conclusions about the accuracy of Mr. Prosser's account of being the victim of fraud, I have not made enquiries to see if the £450,000 is still in the three accounts or if and where it has been transferred to. To action such enquiries the police have to go through a Specialist Home Office Department via the CPS to request the Hong Kong Police Authorities to carry out enquiries on our behalf. This incurs not insignificant translation fees. We also need to give details of the crime we are investigating. As said, I do not believe that one has been committed. It will not be possible/appropriate therefore to carry out such enquiries."

"(1) Where - (a) a person required by a judgment or order to do an act within a time specified in the judgmentor order refuses or neglects to do it within that time or, as the case may be, within that time as extended or abridged under a court order or CPR rule 2.11 ; or (b) a person disobeys a judgment or order requiring him to abstain from doing an act, then,subject to the provisions of these rules, the judgment or order may be enforced by one or more of the following means, that is to say - ... (iii) subject to the provisions of the Debtors Act 1869 and 1878 , an order of committal against that person or ..."

"(1) In this rule references to an order shall be construed as including references to a judgment. (2) Subject to paragraphs (6) and (7) of this rule, an order shall not be enforced under rule 5 unless - (a) a copy of the order has been served personally on the person required to do orabstain from doing the act in question; and (b) in the case of an order requiring a person to do an act, the copy has been soserved before the expiration of the time within which he was required to do the act. ... (4) There must be prominently displayed on the front of the copy of an order served under this rule a warning to the person on whom the copy is served that disobedience to the order would be a contempt of court punishable by imprisonment, or (in the case of an order requiring a body corporate to do or abstain from doing an act) punishable by sequestration of the assets of the body corporate and by imprisonment of any individual responsible. ... (7) An order requiring a person to abstain from doing an act may be enforced under rule 5 notwithstanding that service of a copy of the order has not been effected in accordance with this rule if the court is satisfied that pending such service, the person against whom or against whose property is sought to enforce the order has had notice thereof either - (a) by being present when the order was made; or (b) by being notified of the termsof the order, whether by telephone, telegram or otherwise. (8) The court may dispense with service of a copy of an order under this rule if it thinks it just todo so."

"The court has a discretion under O.45 r.7(6) to dispense with the failure to incorporate a penal notice in a judgment or order requiring a person to abstain from doing an act but it has no such discretion to dispense with the penal notice where the judgment or order requires the person to do an act ( Dempster v. Dempster, The Independent, November 9, 1990 Court of Appeal ). Nevertheless, as liberty of the subject is involved, strict compliance with the rule is desirable and it is unwise to rely on this discretion. Practitioners should take care to ensure that the requirements of O.45 r.7(4) are met and that a penal notice is 'prominently displayed on the front of the copy of an order served'. In MoermanLenglet v. Henshaw, The Times, November 23, 1992 Chadwick J held that there was no discretion to dispense with this requirement. However, in Gill v. Darroch [2010] EWHC 2347 (Ch) Vos J exercised the power to dispense with service under O.45 r.7(7) where the defendant had been served but the penal notice was endorsed on the second page of the order. Dispensing with service of documents Paragraph (7) embodies the former practice under which the court has power to dispense with the service of the requisite documents in order to found an order for sequestration or committal. The principle is that the Court will not make an order of committal of a person for disobedience to an order requiring him to do an act within a given time unless there is clear evidence that the person knew what he was required to do. That evidence is normally proof of personal service of a properly endorsed order upon him. The Court is likely to exercise its powers to dispense with service where the defendant who not been formally served nonetheless has notice of the order or has been served with an order which is technically defective. In Gill v. Darroch [2010] EWHC 2347 (Ch) (where all authorities are reviewed) Vos J dispensed with service of an order which had the penal notice in the wrong place but was satisfied the defendant clearly understood what was required of him."

"Before turning to the relevant issues of fact I would refer to the standard of proof. As to that the judge said at paragraph 10 of his judgment: '... it was common ground that the standard of proof is that which applies in criminal proceedings and therefore the applicant, on whom the burden of proof lies, must make the sure of the facts which are alleged to constitute the contempt. This much was common ground, but the principle goes further than that. When the court is concerned with the circumstances in which a contempt has been committed and thus with the gravity of the defendant's conduct, it must be satisfied to the point of being sure of any matters which it would regard as adverse to the defendant or which would tend to lead it to view his action in a more serious light and so affect its view of the appropriate penalty: See Z Bank v. D1 and Others [1994] 1 Lloyd's Rep. 656 , 667.' Mr. Bhalla accepts that this was indeed the test that the judge should have applied but he has submitted that when the evidence is considered the judge cannot have applied that test ..."

"But in evaluating the gravity of the contempt it is common ground that if I am to find wilful disregard of the court's order I must be satisfied beyond all reasonable doubt that such was the case, just as I must be satisfied to that standard of proof that contempt was committed. Mere suspicion is not sufficient."

"(Q) Just so I understand your evidence, until the 19th April you believed that the money was going to have to go into Maddersons Solicitors? (A) Yes."

"40. As we have noted, the Judge took a limited view of her discretion to dispense with the requirement for service before the time fixed for compliance. With respect to her, we think this was too narrow a view of the wide discretion conferred by paragraph (7). Unfortunately, the Judge's attention does not seem to have been drawn to a decision of this court ( Davy International -v- Tazzyman [1997] 1 WLR 1256 ), which makes quite clear the "unfettered" nature of the discretion conferred by that paragraph, even where it is exercised 'retrospectively'." 41. No doubt, the Court must be careful before concluding that it is 'just' to dispense with service, in a case not covered by the specific rules of sub-section (6). However, when considering the impact of the various orders, the Court is entitled to have regard to the realities of the matter. Subject to one point of detail, to which we shall come, all these orders were designed to achieve a single purpose namely the removal of the fence erected as long ago as 1995. To that extent it is wholly artificial to talk of 'retrospectively' waiving the requirements for service in relation to the orders of July 2001. The power to fix a new time for compliance with a mandatory order (see RSC Ord 45 r 6 ) is intended to assist the enforcing claimant, not to put a procedural minefield in his way. There was no injustice to Miss Richards in proceeding on the basis that these later orders were simply reinforcing and continuing the effect of the order granted on 8th May 1998, and in dispensing with the technical lapses of service along the way. As the Judge found, there was no doubt that at all times she knew perfectly well what was involved and what its consequences were. Any other view is an encouragement, as this case shows, for a persistent offender to use technicalities to defeat the purpose of the orders."

"With the exceptions herein-after mentioned, no person shall ... be arrested or imprisoned for making default in payment of a sum of money. There shall be excepted from the operation of the above enactment: ... (3) Default by a trustee or person acting in a fiduciary capacity and ordered to pay by a court of equity any sum in his possession or under his control ... Provided, first, that no person shall be imprisoned in any case excepted from the operation of this section for a longer period than one year; and, secondly, that nothing in this section shall alter the effect of any judgment or order of any court for payment of money except as regards the arrest and imprisonment of the person making default in paying such money."

"The attachment in this case was ordered for non payment by the appellant to the solicitor of the petitioner of the sum of £41.3.5d for taxed costs and for not paying into court a sum of £40 for estimated costs of the hearing of the cause or giving a bond to secure that amount. It was conceded by the counsel for the petitioner that the first part of the order could not be supported. It must therefore be varied in that respect. Then came the question whether the order was right as to the other part which directed the attachment to issue for default in lodging £40 in court or giving a bond for £80. It was admitted that this part of the order was in accordance with the practice of the Divorce Court and that its regularity was expressly declared in Lynch v. Lynch . But it was said that it was in violation of the fourth section of the Debtors Act which enacted that no person should be imprisoned for making default in payment of a sum of money with certain exceptions which do not apply to the present case. In my opinion the order for attachment was not in violation of the Debtors Act because it was not for default in payment of a sum of money within the meaning of that section. The object of the Act was to prevent the imprisonment of persons for non payment of ordinary debts. No doubt the words used in the Act are very wide, but we must consider what was really meant by 'the payment of a sum of money'. This order was not for the payment of a sum of money to the respondent, nor was it simply an order for the appellant to pay a sum of money into court. But there was an alternative: he was either to pay the money or to give a bond. It was argued that the mention of a bond was only subsidiary to the order for the payment of money but that the order was in effect simply an order to pay the money. I do not take that view. If the appellant had given the bond he would have complied with the order. The bond might have produced nothing, but the order would have been complied with. Even if the appellant was not able to pay the money, he might have given the bond. It must have been mere wilfulness on his part which prevented him from doing so. The order was an order to give security and, as such, was not within the fourth section of the Debtors Act and in my opinion the court was quite competent to order the attachment to issue ..."

"I am of the same opinion. The question turns upon the words of the fourth section of the Debtors Act . It is said that the appellant is within the protection of the Act because he has made default in payment of a sum of money. What do the words 'payment of money' in this section mean? In my opinion they do not mean depositing a sum of money in court to abide an order to be subsequently made. If the appellant has been ordered to pay the money to the receiver of the court in discharge of an obligation to which he had been declared liable, that might be different. But that is not so here. He is to deposit the money in court or to give security for it. That is not within the meaning of the words of the Act therefore the appellant is liable to be arrested for contempt of court and for not having complied with the order. The latter part of the order appealed from is right and must be affirmed. The former part appears to have been made by an oversight and the order must be varied in that respect."

"Of the various cases which have been decided on particular points relating to the above section, it is to be noted that attachment cannot lie in respect of an order for costs awarded by this court (see Leevis v. Leevis per Hill J) but that, on the other hand, in order to give security for costs can be the subject of an attachment' see Bates v. Bates where emphasis was laid on the fact that the order related also to the giving of the bond ... The position today is that the wife seeks to employ a procedure of a penal nature which impinges on the liberty of the subject and unless therefore she can strictly establish that she is entitled to avail herself of that procedure, her application must fail."

"Reading into that judgment [that of Cotton LJ] it does appear that had there not been an alternative open to the contemnor to give a bond, then Cotton LJ would have held that the order for the payment of a sum into court was payment of a sum of money falling within section 4 of the Debtors Act , but Lindley LJ appears to have taken a different view ..."

"24. Furthermore, I would not wish to suggest that there should be any general principle that the statutory provisions relating to sentencing in ordinary criminal cases should be applied to sentencing for contempt. The circumstances surrounding contempt cases are much more various and the objectives underlying the court's actions are also much more various. There are, however, some points which it may be worth making. 25. In making those points I would wish to emphasise that I do so only in the context of familycases. Family cases, it has long been recognised, raise different considerations from those elsewhere in the civil law. The two most obvious are the heightened emotional tensions that arise between family members and often the need for those family members to continue to be in contact with one another because they have children together or the like. Those two factors make the task of the court, in dealing with these issues, quite different from the task when dealing with commercial disputes or other types of case in which sometimes, in fact rarely, sanctions have to be imposed for contempt of court. 26. Having said that, firstly, these cases have to come before the court on an application tocommit. That is the only procedure which is available. Not surprisingly, therefore, the court is directing its mind to whether or not committal to prison is the appropriate order. But it does not follow from that that imprisonment is to be regarded as the automatic consequence of the breach of an order. Clearly it is not. There is, however, no principle that imprisonment is not to be imposed at the first occasion: see Thorpe v Thorpe [1998] 2 FLR 127 , a decision of this court. Nevertheless, it is a common practice, and usually appropriate in view of the sensitivity of the circumstances of these cases, to take some other course on the first occasion. 27. Secondly, there is the difficulty, as Mr Brett has pointed out, that the alternatives are limited.The full range of sentencing options is not available for contempt of court. Nevertheless, there is a range of things that the court can consider. It may do nothing, make no order. It may adjourn, and in a case where the alleged contemnor has not attended court, that may be an appropriate course to take, although I would not say so in every case. It depends on the reasons that may be thought to lie behind the non-attendance. There is a power to fine. There is a power of requisition of assets and there are mental health orders. All of those may, in an appropriate case, need consideration, particularly in a case where the court has not found any actual violence proved. 28. Thirdly, if imprisonment is appropriate, the length of the committal should be decidedwithout reference to whether or not it is to be suspended. A longer period of committal is not justified because its sting is removed by virtue of its suspension. 29. Fourthly, the length of the committal has to depend upon the court's objectives. There are twoobjectives always in contempt of court proceedings. One is to mark the court's disapproval of the disobedience to its order. The other is to secure compliance with that order in the future. Thus, the seriousness of what has taken place is to be viewed in that light as well as for its own intrinsic gravity. 30. Fifthly, the length of the committal has to bear some reasonable relationship to the maximumof two years which is available. 31. Sixthly, suspension is possible in a much wider range of circumstances than it is in criminalcases. It does not have to be the exceptional case. Indeed, it is usually the first way of attempting to secure compliance with the court's order. 32. Seventhly, the length of the suspension requires separate consideration, although it is oftenappropriate for it to be linked to continued compliance with the order underlying the committal."

"In contempt cases the object of the penalty is both to punish conduct in defiance of the court's order as well as serving a coercive function by holding out the threat of future punishment as a means of securing the protection which the injunction is primarily there to do (see Lightfoot v Lightfoot [1989] ... Robinson v Robinson [2001] ... Hale v Tanner ... 13. The matters which I may take into account include these. First, whether the claimant has been prejudiced by virtue of the contempt and whether the prejudice is capable of remedy. Second, the extent to which the contemnor has acted under pressure. Third, whether the breach of the order was deliberate or unintentional. Fourth, the degree of culpability. Fifth, whether the contemnor has been placed in breach of the order by reason of the conduct of others. Sixth, whether the contemnor appreciates the seriousness of the deliberate breach. Seventh, whether the contemnor has co-operated."

"In our view six months is by no means excessive, but (representing as it does the equivalent of nine months' sentence in a criminal court with full remission) it is sufficient."

"The question which then arises is whether the sentence of 18 months' imprisonment was appropriate in the circumstances. As Mr. Brookes has reminded us, each case has to be dealt with on its own facts but it is difficult to see any extenuating circumstances whatever in this case if, as the judge found, knowing of the court order and knowing that the money was to be paid into a joint account pending a decision as to how much should be paid to his wife and how much he should retain for himself, he simply hid it. The judge thought that the appropriate sentence was 18 months' imprisonment. For my part I cannot see that that can possibly be faulted but I would like to say a word about sentences of this sort. Sentences for contempt really fall into two different categories. There is the purely punitive sentence where the contemnor is being punished for a breach of an order which has occurred but which is a once and for all breach. In fixing the sentence there can well be an element of deterrence to deter him from doing it again and to deter others from doing it. That is one category. There is a second category which I might describe as a coercive sentence where the contemnor has been ordered to do something and is refusing to do it. Of course a sentence in that case also has a punitive element since he has to be punished for having failed to do so up to the moment of the court hearing. But nevertheless it also has a coercive element. It would be consistent with the previous practice of the courts and give full effect to the modification required by statute if courts considering imposing a two-year sentence when the contemnor was in continuing and wilful breach of court orders. Whilst there might be cases in which such a sentence would be disproportionately severe, any wilful defiance of the court and its orders is necessarily a very serious offence and if the contemnor is aggrieved he has a remedy in his own hands. He can seek his immediate release by ceasing his defiance, complying with the order and thereby purging his contempt."

"The judge made no error of principle. I cannot see any respect in which he failed to exercise his discretion judicially. I cannot point to any factor to which he did not give sufficient weight and I am not satisfied the sentence is manifestly excessive." 127. He also referred to Pospischal v. Phillips . He said: "

"The judge who had and he makes it clear during his sentencing remarks 11 or 12 in mind as the appropriate tariff starting point, must have made a further allowance of either six months or indeed nothing for the further mitigation of old age and poor health depending on which figure he took as his starting figure. Whichever it was, either six months or nothing, it was in our view insufficient to take into account the fact that the appellant was then aged 75 and also in ill health. We, like the judge, have accepted the information that we have been given. There was no medical report before us today either that this appellant suffers from hernias, one of which may well be treated by surgery in accordance with the information we have been given today from the medical authorities at the prison hospital. ... The risk of the appellant becoming ill in prison or indeed so ill that he is unable to return home or indeed even of dying in prison is one which must be taken into account by the court. It seems to us to be right to reflect the age and health in a substantially greater discount than the court has given in spite of the seriousness of this offence. We consider that a sentence of five years would meet the justice of the case in this particular matter ..."