Universal Business Team PTY Ltd & Ors v Moffitt (aka Laurie Moffitt) [2017] EWHC 3251 (Ch)

Case No BL-2017-000101[2017] EWHC 3251 (Ch)IN THE HIGH COURT OF JUSTICEBUSINESS AND PROPERTY COURTS OF ENGLAND AND WALESCHANCERY DIVISIONVenue Royal Courts of JusticeStrandLondonWC2A 1LLDate Monday, 4 th December 2017
Before
MR. JUSTICE MARCUS SMITH
B E T W E E N:
Between
UNIVERSAL BUSINESS TEAM PTY LIMITEDClaimant(A LIMITED COMPANY INCORPORATED UNDER THE LAWS OF AUSTRALIA)ClaimantONEBUS LIMITEDClaimant(A LIMITED COMPANY INCORPORATED UNDER THE LAWS OF ENGLAND)ClaimantX1ClaimantX2ClaimantX3ClaimantX4ClaimantX5Claimant(THE THIRD TO SEVENTH CLAIMANTS SUING IN A REPRESENTATIVE CAPACITY FOR ALL INDIVIDUALS NAMED IN THE “UK & IRELAND ADDRESS BOOK 2015” AND THE “AUSTRALIA ADDRESS BOOK 2015”)ClaimantMR LAURENCE ROY MOFFITTDefendant(AKA LAURIE MOFFITT)Defendant
Transcribed by Opus 2 International Ltd.(Incorporating Beverley F. Nunnery & Co.)Official Court Reporters and Audio Transcribers5 New Street Square, London EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737civil@opus2.digital**This transcript has been approved by the Judge**
MR J. REED (instructed by Kingsley Napley LLP) appeared for Claimants.MR R. CALZAVARA (appearing pursuant to the offices of the Bar Pro Bono Unit) appeared for Defendant.
J U D G M E N T
[1]By an application notice dated 3 November 2017, the Claimants seek an order that the Defendant, Mr Moffitt, be committed to prison for his contempt of court. Paragraph 3 of the application notice states that the Claimants seek an order that the Defendant be committed to prison for his contempt of court and, in particular, for his breaches of the order of Birss J. dated 17 October 2017, the order of Birss J. dated 20 October 2017 and the order of Rose J. dated 23 October 2017.[2]By an order dated 31 October 2017, Warren J gave the following directions (in paragraph 7 of the order), namely that:(1) The Claimants have permission to issue the committal application substantially in the form of the draft annexed to the order (paragraph7.1 ). A hearing date of Friday 1 December 2017, with a time estimate of one day, was specified.(2) The claimants serve the committal application on the Defendant by 5.30pm on Friday 3 November 2017 (paragraph7.2 ).(3) The Defendant, by 5.30pm on Friday 17 November 2017, file and serve on the Claimants’ solicitors any affidavit evidence relied upon by the Defendant in answer to the committal application (paragraph7.3 ).(4) The Claimants, by 5.30pm on Friday 24 November 2017, file and serve on the Defendant any affidavit evidence in reply (paragraph7.4 ).(5) The hearing of the committal application take place, with oral evidence being heard, on the hearing date of 1 December 2017 (paragraph7.5 ).(6) The Claimants have permission to serve the application notice for committal and related documents, including the grounds of committal and evidence in support of that application, on the Defendant by email and/or by post to the Defendant (the email and postal address were both specified in the order, but there is no need to set them out) and personal service on the Defendant be dispensed with pursuant to CPR 81.10(5) (paragraph7.6 ).[3]Thirteen contempts are alleged by the Claimants against Mr. Moffitt. The contempts relate to breaches of three orders of the court concerning a search order. The search order was originally granted ex parte without notice to Mr. Moffitt, the court sitting in private, by Birss J. on 17 October 2017. When the Claimants sought to enforce the order, they were obstructed in various ways by Mr. Moffitt, as I shall describe in greater detail in this judgment. This is not now disputed by Mr. Moffitt, save in relation to some isolated points and in points going to mitigation and to the question of whether his contempt has been purged.[4]There was a further hearing before Birss J. on 20 October 2017, essentially seeking to deal with the consequences of Mr. Moffitt’s non-compliance. Birss J. issued a bench warrant on 18 October 2017 to ensure Mr. Moffitt’s attendance at the hearing before him.[5]The third relevant order is that of Rose J., made on 23 October 2017.[6]I shall refer to these orders respectively as the “Search Order”, the “Second Order” and the “Third Order”.[7]The substance of the orders sought and obtained by the Claimants was to identify and reduce to the control of the Claimants certain address books listed in schedule B of the Search Order (“Listed Items”). These address books related to the membership of an organisation known as the Plymouth Brethren Christian Church or “PBCC” for short. The Search Order extended to physical and electronic versions of the address books. No more need be said about the physical versions for the present.[8]As regards electronic versions, the Search Order extended to:(1) Electronic versions held on “Electronic Devices” (as that term was defined in the Search Order). These electronic devices were to be handed over. There was an obligation contained in the Search Order on the Defendant to provide the access codes and passwords to such electronic devices.(2) Electronic versions of those documents on cloud platforms and social media, referred to in the order as “Cloud Information” and “Social Media Information.” As regards Cloud Information and Social Media Information, this information is either exclusively or in parallel with material on electronic devices retained on remote servers not owned or operated by the Defendant and incapable of being handed over by him physically – unlike Electronic Devices. The most the Defendant could do in the case of Cloud Information and Social Media Information was to provide the relevant access codes and passwords and this the Search Order obliged him to do.[9]The Search Order permitted access to two premises, 6 Forlease Drive, Maidenhead, and 68 Westwood Green, Maidenhead.[10]The precise contempts alleged by the Claimants are set out in the grounds that accompanied the Claimants’ application notice of 3 November, 2017. I shall not read these grounds in full. It suffices for the present to refer to the summary of breaches helpfully set out in paragraph 35 of Mr. Reed’s skeleton argument. Paragraph 35 contains a table, which sets out the contempt number, the paragraph of the relevant order breached and an outline of that breach: Contempt Number Order breached Outline of breach Search Order 1 Paragraph 5 Failed to permit entry 2 Paragraph 18 Failed to hand over Listed Items 3 Paragraph 19 Failed to give access to Electronic Devices 4 Paragraph 28 Failed to provide information 5 Paragraph 37.2 Taking photographs on his iPhone, thereby: Access and used his Electronic Devices 6 Paragraphs 36, 37.2 and 37.3 Posted on the Blog about the search, thereby: Informed others of the search order Accessed and used Electronic Devices Accessed social media 7 Paragraphs 37.2 and 37.3 Posted a tweet on Twitter, thereby: Accessed and used Electronic Devices Accessed social media 8 Paragraph 37.2 Sold and “factory reset” iPhone 7 and iPad Pro, thereby: Interfered with Electronic Devices 9 Paragraphs 36, 37.2 and 37.3 Posted on the Blog about the proceedings, thereby: Informed other of proceedings Accessed and used Electronic Devices Accessed social media 10 Paragraph 36 Informed others of proceedings 11 Paragraph 29 Failed to provide information (emails) Second Order 12 Paragraph 1.4 Failed to provide information (affidavit) Third Order 13 Paragraph 1 Failed to provide information[11]Mr. Reed, I should say, appears as counsel for the Claimants. Mr. Calzavara of counsel appears for Mr. Moffitt pursuant to a referral of the Bar Pro Bono Unit. Mr. Calzavara pointed out to me in submissions that, desirable though it was for me to make a representation order in respect of Mr. Moffitt, he did not consider that I had jurisdiction to do so as Mr Moffitt had been unable to retain instructing solicitors. Nevertheless, Mr. Calzavara stated that he was fully in a position to represent Mr. Moffitt on this occasion and could properly do so through the referral of the Bar Pro Bono Unit. He did not seek an adjournment. I am greatly indebited to both counsel for the assistance that they have given me.[12]It is obvious, but for the record I note it anyway, that Mr. Moffitt has received legal advice and has the benefit of legal representation. Paragraph 29.8 of Mr. Reed’s skeleton argument notes that the Defendant’s attention has been drawn to Practice Direction 81, paragraph 15.6, concerning the availability of legal aid. Not only was the Defendant in court and represented by counsel when those matters were raised in court on 31 October 2017, they were set out in a letter of 3 November and in a reminder letter of 17 November.[13]I would like to stress my appreciation for the Bar Pro Bono Unit and Mr. Calzavara, in particular, for the extraordinarily helpful way in which they have put Mr. Moffitt’s case and assisted the court. I am very grateful.[14]I shall approach the determination of this application in the following way. First, I shall consider whether the procedural requirements in relation to this application have been met. I should say that it was not contended by Mr. Calzavara that there was any procedural irregularity. Nevertheless, I must satisfy myself.[15]Secondly, I shall consider what needs to be demonstrated by the Claimants in order to show contempt by Mr. Moffitt of the three orders that I have described. I shall consider whether, in purely procedural terms, these requirements are met in the present case.[16]Thirdly, I shall consider the thirteen grounds of contempt alleged and whether they have been made out or not according to the requisite legal standard. That is not as large an undertaking as the number of contempts might suggest, for Mr Moffitt has, to his credit, now admitted the vast majority of the points made against him. I shall refer to these thirteen grounds of contempt generally as the “Contempts” and, individually, as “Contempt 1”, “Contempt 2”, “Contempt 3” etc.[17]Fourthly, I shall in light of the Contempts and my findings on the limited points of factual dispute that remain, consider what the appropriate penalty should be. In practice, there is a certain elision between my third and fourth areas for consideration, because (as I say to his credit) Mr. Moffitt has pleaded guilty to some, but not all, of the Contempts. He has raised points in mitigation in relation to all of the Contempts and there is a certain degree of cross-over between these two points.[18]I begin then with the procedural requirements in relation to this application and whether they have been met. These requirements are as follows.(1) The application notice must contain a prominent notice stating the possible consequences of the court making a committal order. Here, the grounds – which form part of the application notice – state very clearly and prominently, in a box headed, “Important Notice”, as follows: “The court has power to send you to prison, to fine you or seize your assets if it finds that any of the allegations made against you are true and amount to a contempt of court. You must attend court on the date shown on the front of the accompanying application notice. It is in your interests to do so. You should bring with you any witnesses and documents which you think will help you put your side of the case. If you consider the allegations are not true you must tell the court why. If it is established that they are true you must tell the court of any good reason why they do not amount to a contempt of court or, if they do, why you should not be punished. If you need advice you should show this document at once to your solicitor or go to a Citizen’s Advice Bureau or similar organisation.”(2) The written evidence in support of the application, as well as that in opposition, must be by way of affidavit. Here: (a) I have received no less than fourteen affidavits served on behalf of the Claimants. Mr. Moffitt himself relies on three affidavits. I have some doubt as to whether the first two affidavits actually are properly sworn affidavits. They are very short, handwritten, documents. Nevertheless, I have read them and take them into account and treat them as affidavits sworn by Mr. Moffitt. Mr. Moffitt certainly adopted them in his evidence in-chief before me. (b) Mr. Moffitt’s third affidavit is altogether more substantial and formal. It was served late and in breach of paragraph 7.3 of Warren J’s order. Nevertheless, I admit it into evidence. It seems to me that the difficulties Mr. Moffitt has had in obtaining representation, and the seriousness of this application, amply justify my permitting this evidence. (c) Of course, ordinary fairness dictates that the Claimants should be entitled to respond and they have done so. Four of the Claimants’ affidavits – the fourth affidavit of Mr. Ractliff, the third affidavit of Mr. Brown, the second affidavit of Mr. Stacey and the first affidavit of Ms. Ackerman – postdate Mr. Moffitt’s third affidavit. Three of those affidavits are clearly responsive to Mr. Moffitt’s evidence. Ms. Ackerman’s is not directly responsive to Mr. Moffitt’s third affidavit. It deals with material that the Claimants have only just received in response to a statement made by Mr. Moffitt on 31 October 2017. Plainly, the late service of three affidavits of the Claimants is explained and justified by the late service of Mr. Moffitt’s third affidavit. Ms. Ackerman’s is explained and justified by the information received by the Claimants on 30 November 2017. There is, therefore, ample explanation for and justification of their lateness. (d) Nevertheless, despite these entirely sufficient explanations and justifications for the Claimants’ late evidence, I have carefully considered whether Mr. Moffitt has been prejudiced by this lateness, even if he is, in three cases, the cause of it. The affidavits are short. They are straightforward in their terms and they are directly responsive to points made by Mr. Moffitt. I considered whether the price of admitting this evidence was an adjournment of this application. I consider that there is no prejudice to Mr. Moffitt and, to be entirely, clear Mr. Calzavara did not contend otherwise, but indicated his preparedness to address the substance which, as I say, he did most impressively. Given the absence of prejudice to Mr. Moffitt, an adjournment would be superfluous and, indeed, undesirable in the interests of justice. Accordingly, I have admitted the evidence and the hearing proceeded on 1 and on 4 December 2017. (e) Whilst on the question of evidence, I should say that the parties were agreed that, apart from Mr. Moffitt, I only needed to hear oral evidence from three of the Claimants’ witnesses: Mr. Ractliff, the court appointed supervising solicitor for the Search Order; Mr. Brown, a consultant with Grant Thornton, who assisted on computer related matters; and Mr Stacey, who gave evidence of certain convictions of Mr. Moffitt. The other witnesses of the Claimant were not called and their evidence stood as their evidence without examination. For the avoidance of doubt, I order that their evidence so stand.(3) The third procedural requirement is that the committal application must be personally served, unless that is dispensed with. I have referred (in paragraph 2(6) above) to paragraph 7.6 of the order of Warren J., which made provision for service of the application and that has been complied with.[19]Accordingly, to conclude the first part of my judgment, I find that the application before me is procedurally regular.[20]I turn, therefore, to the second matter I must consider: what needs to be demonstrated procedurally by the Claimants in order to show contempt by Mr. Moffitt of the three orders I have described and whether these requirements are met in the present case.[21]The procedural requirements are set out in paragraph 20 of the Claimants’ skeleton argument, which states that the following procedural requirements must be met:(1) The order that is said to have been breached must have been endorsed with a penal notice in the requisite form.(2) The relevant order must be served personally on the defendant.(3) The relevant order must be served before the end of the time fixed for doing the relevant acts.[22]Here, with one wrinkle that I will deal with, there has been procedural compliance. Again, I refer to the relevant parts of the Claimants’ skeleton argument. Reading from paragraph 29:
“Save for the point mentioned below in relation to the Second Order, it is submitted that the claimants have complied with all relevant procedural matters in respect of this committal application. In particular: 29.1. The Search Order was personally served on the defendant by the supervising solicitor at about 10.11 a.m. on 18 October 2017. 29.2. A Third Order was served personally on the defendant…at about 8.00pm on 24 October 2017. The Search Order and the Third Order were served before the time expired for compliance. The Search Order, the Second Order and the Third Order were all endorsed with a penal notice in the correct form.”
[23]The wrinkle – which has been fully flagged for my attention by Mr. Reed – relates to the Second Order. As to this, what is said in paragraphs 30 to 34 of the Claimants’ skeleton argument is as follows:
“30. It is common ground that the Second Order was not served personally on the Defendant until after the deadline for compliance for service of the affidavit. As is clear from the face of the Second Order, it was only sealed on 25 October and the deadline was 4.30pm on that same day. 31. The reality is that the Defendant knew about the deadline for service of the affidavit. The Defendant accepts in his evidence that he was in court on 20 October, when the deadline was extended and when the judge stated the new deadline. The act that he was required to do was set out with precision in the Search Order. That order had been personally served upon him. The Defendant knew what he had to do and the Defendant knew by when he had to do it. … 33. The court has the power to dispense with service and may do so retrospectively. See Masri v. Consolidated Contractors International Company SAL [2011] EWHC 1024 per Christopher Clarke J at 355, where the court retrospectively dispensed with service on the basis that the contemnor knew of the order the moment it was made (see [354]). 34. The Claimants submit that the court should exercise its discretion to retrospectively dispense with personal service of the Second Order in all the circumstances of this case.”
[24]The only contempt that relates to the Second Order is Contempt 12. Mr. Moffitt accepts that he was in court when the order was made. His evidence is set out in paragraphs 51 to 54 of his third affidavit. I am prepared retrospectively to extend time as the Claimants seek and I do so. However, I should make clear that I do not regard this as the crucial factor in relation to this contempt. The crucial factor is not this procedural aspect which, although not unimportant, is procedural and is capable of cure, as I have done.[25]The crucial factor is whether Mr. Moffitt, prior to the time for compliance with the Second Order, subjectively had notice of it. I turn to this important question after I have set out the relevant principles that apply in cases where it is said that an order of the court has been breached.[26]Accordingly, I find that, except in the case of the Second Order, the procedural requirements have been made out. As regards the Second Order itself, as I have explained, I have retrospectively addressed the issue and have cured it.[27]I am satisfied that this is the case to the criminal standard which, as I shall come to describe, is the standard that I must apply.[28]I turn then to my third area for consideration. That is the question of whether Mr. Moffitt has breached the orders in a manner sufficient to render him in contempt of court. In terms of the relevant legal principles, the law is stated in the judgment of Proudman J. in Farnsworth v. Lacy [2013] EWHC 3487 (Ch). I need not consider the facts, but I will simply read from three paragraphs in that judgment. Beginning at [3]:
“The burden of proof is on the Claimants to establish the contempt and the standard of proof is the criminal standard. In other words, the Claimants have to satisfy me so that I am sure that the alleged contempts have been established. In the time-honoured phrase the matter must be beyond reasonable doubt.”

Turning to [20]:

“A person is guilty of contempt by breach of an order only if all the following factors are proved to the relevant standard: (a) having received notice of the order the contemnor did an act prohibited by the order or failed to do an act required by the order within the time set by the order; (b) he intended to do the act or failed to do the act as the case may be; (c) he had knowledge of all the facts which would make the carrying out of the prohibited act or the omission to do the required act a breach of the order. The act constituting the breach must be deliberate rather than merely inadvertent but an intention to commit a breach is not necessary, although intention or lack of intention to flout the court order is relevant to penalty.”
Finally, going back a couple of paragraphs to [17], the order must be unambiguous. Proudman J. said:
“I have, however, to be satisfied that the consent order was unambiguous.”
Turning to [20]:[29]I propose to consider whether there have been breaches of the nature alleged by Proudman J. in the case of each Contempt, beginning with Contempt 1.(1) Contempt 1 relates to a failure to permit entry and is addressed specifically by Mr. Moffitt in his third affidavit at paragraphs 16 to 23. Essentially, and using the term that Mr. Moffitt uses in his affidavit, he pleads “guilty”, and I find, to the criminal standard, a deliberate breach of the Search Order satisfying the requirements laid down in [20] of Farnsworth. Mr. Moffitt relies upon the manner in which Mr. Ractliff conducted the search in mitigation. I underline that that can only be relevant, as was accepted, to mitigation and that the breach of the order is accepted and that the requirements of Proudman J. in Farnsworth are met.(2) Contempt 2 involves failing to hand over Listed Items. This is addressed in paragraphs 24 to 28 of Mr. Moffitt’s third affidavit and, again, he pleads “guilty”. He has contended that some of the Electronic Devices that the Claimants say he should have handed over, he could not hand over because they were not his. The ambit of Contempt 2 has been modified accordingly, so that area of controversy has been eliminated. To the extent now asserted, Contempt 2 is accepted as being breached, and I find, to the criminal standard, a deliberate breach of the Search Order satisfying the requirements laid down in [20] of Farnsworth. Again, Mr. Moffitt relies upon the conduct of Mr. Ractliff to say that had that conduct not occurred, he would have complied with the order and that is a matter that is relevant to the question of mitigation.(3) Contempt 3 relates to the giving of access to Electronic Devices. Mr. Moffitt’s evidence in relation to this contempt is at paragraphs 29 to 31 of his third affidavit. Again, he pleads “guilty” and, again, he relies on the conduct of Mr. Ractliff in the execution of the Search Order. That, as I have indicated in relation to Contempts 1 and 2 goes only to the question of mitigation. I find, to the criminal standard, a deliberate breach of the Search Order satisfying the requirements laid down in [20] of Farnsworth.(4) Contempt 4 involves a failure to provide information. Mr. Moffitt’s evidence and response to this Contempt is set out in paragraphs 32 to 39 of his third affidavit. In part, Mr Moffitt pleads “guilty”, and in part he pleads “not guilty”, again using his terms. As to this: (a) The “not guilty” element of Mr. Moffitt’s plea turns on how Mr. Moffitt stored and distributed the address books that are the subject-matter of the Search Order. Mr. Moffitt says that he did so via Cloud Information and Social Media Information. What he says is that the material, namely the address books, was neither held on Electronic Devices nor emailed by him. Mr. Moffitt says that the address books were held and were distributed by him as Cloud Information or Social Media Information. They were not, he says, held electronically on his Electronic Devices. Because two of the Electronic Devices were wiped by way of a factory reset, a point that I will be returning to, I cannot know what information was held on these particular devices. But the analysis of the other Electronic Devices that were produced by Mr. Moffitt, does appear to bear him out. (b) For reasons that I shall come to, I have considerable doubts as to the reliability of Mr. Moffitt’s evidence. But the evidence of Mr, Brown, who gave evidence on behalf of the Claimants, was significant here. It was, said Mr Brown, perfectly possible, if perhaps unlikely, to hold PDFs and other documents only on a cloud-based platform, but he accepted that synchronisation between a cloud-based platform and an electronic device could be turned off, so that only the cloud held data and not the electronic device. It was also perfectly possible, and perhaps in the case of large files natural, to transmit large files like the address books as Cloud Information and I am thinking of Dropbox as an example of this. (c) On the balance of probabilities, I would find the breach established. But I must be satisfied so that I am sure and, although I make an adverse inference in relation to the factory reset of the two devices I have referred to, I am not satisfied so that I am sure that Mr. Moffitt did not operate solely through the cloud. That means that I am not satisfied that Contempt 4(2) has been established. I am also not satisfied that Contempt 4(3) has been established insofar as it relates to transmission via electronic devices. However, I find that Contempt 4(3) goes beyond this and extends quite clearly to cloud distribution. The breach of the order alleged in Contempt 4(3) is that the name, address and email address of everyone to whom he has supplied, whether in hard copy or electronic form, and whether by electronic transmission or otherwise or disclose the whole or part of the address books and the date of the supply, the means by which he supplied it, including any email addresses used by the Defendant and the recipient and the device used to transmit it. Plainly, that can extend well beyond purely emailing matters to cloud distribution and, therefore, to this extent, I find that Contempt 4(3) and, indeed, the other contempts in Contempt 4 except Contempt 4(2) have been breached and established. To this extend, I find, to the criminal standard, a deliberate breach of the Search Order satisfying the requirements laid down in [20] of Farnsworth.(5) Contempt 5 relates to the taking of photographs on the occasion of the search using Electronic Devices. Mr. Moffitt responds to this in paragraph 40 of his third affidavit. He pleads “guilty”, but he claims that he did not understand that this was the effect of the Search Order. That, of course, is relevant to mitigation only. I find, to the criminal standard, a deliberate breach of the Search Order satisfying the requirements laid down in [20] of Farnsworth.(6) Contempt 6 relates to posting on Mr Moffitt’s blog, whereby he informed others of the search, accessed and used Electronic Devices and accessed social media. Mr. Moffitt responds to this briefly in paragraph 41 of his third affidavit. He pleads “guilty” but claims that he did not understand that this was the effect of the order. Again, that goes to mitigation only: I find, to the criminal standard, a deliberate breach of the Search Order satisfying the requirements laid down in [20] of Farnsworth.(7) Contempt 7 involves the posting of a tweet in breach of the Search Order on Twitter, thereby accessing and using Electronic Devices and accessing social media but also, of course, informing third parties of the existence of the Search Order. Mr. Moffitt responds in paragraph 42 of his third affidavit. He pleads “guilty” but again claims that he did not understand how serious this was, which is a factor relevant only to mitigation. I find, to the criminal standard, a deliberate breach of the Search Order satisfying the requirements laid down in [20] of Farnsworth.(8) Contempt 8 involves the sale and factory reset of two Apple devices, thereby interfering with Electronic Devices. This is addressed in Mr. Moffitt’s third affidavit at paragraphs 43 to 45. Mr. Moffitt pleads “guilty”. He says he transferred these devices to a Mr. David Bailey and that the factory reset was done to avoid this person accessing and using Mr. Moffitt’s payment details (which were stored on the devices). He also says that he did not store data on these devices and so the reset did not matter. These, of course, are both points relating to mitigation, but I should make clear two points now. The Search Order required these Electronic Devices to be produced. Whether they had the data on them or not was something for the Claimants to verify and not for Mr. Moffitt to withhold. Secondly, as regards the explanation concerning the background to the factory reset, including the transfer of the devices to Mr. Bailey, I am sorry to say that I entirely disbelieve Mr. Moffitt’s explanation in this regard. That is a matter to which I will refer when I come to the question of mitigation and punishment. For the present, I note that I find, to the criminal standard, a deliberate breach of the Search Order satisfying the requirements laid down in [20] of Farnsworth.(9) Contempt 9 involves posting about the proceedings on Mr Moffitt’s blog, thereby informing others and accessing and using electronic devices and social media. Mr. Moffitt responds to this in paragraphs 46 to 48 of his third affidavit. He pleads “guilty” but claims that he did not know that he should not do this and, accordingly, that is a matter which I will take into account when I come to mitigation. But it is not relevant to breach and I find, to the criminal standard, a deliberate breach of the Search Order satisfying the requirements laid down in [20] of Farnsworth.(10) Contempt 10 involves informing others of the proceedings. Mr. Moffitt deals with that in paragraph 49 of his third affidavit. He pleads in his words “guilty” but claims that he did not know that he should not do this. Again, this goes only to mitigation and penalty: I find, to the criminal standard, a deliberate breach of the Search Order satisfying the requirements laid down in [20] of Farnsworth.(11) Contempt 11 relates to a failure to provide information regarding emails. Mr. Moffitt deals with that in paragraph 50 of his third affidavit. Although his third affidavit says that he pleads “guilty”, that was corrected in Mr. Moffitt’s oral evidence and I accept that Mr. Moffitt was saying that, to the extent that Contempt 4 was contested, so too was Contempt 11. So this is a “not guilty” pleas. Properly construed, in my judgment, Contempt 11 relates to distribution of the address books by email only. As I have said, I am not satisfied to the requisite standard that the material the subject of the Search Order was so held or so distributed. I find that it is at least open to Mr. Moffitt to say that he was circulating these matters other than by email and I cannot be sure that that is not the case. Accordingly, I find no breach in relation to Contempt 11.(12) Contempt 12 concerns a breach of paragraph 1.4 of the Second Order. It concerns a failure to provide information by way of an affidavit. Mr Moffitt pleads “guilty”, in his words, in respect of this Contempt and his evidence is contained in paragraphs 51 to 54 of his third affidavit. Mr. Moffitt accepts, in his written evidence, that he was present in court when the time for serving the affidavit was extended by Birss J. He did not say, at least not unequivocally, in his affidavit that he understood the order. Of course, he was in court and he ought to have done and he probably did, but I must be satisfied so that I am sure, and based on the written evidence I have to say that I was not entirely sure that this was the case. However, I have had the benefit of hearing Mr. Moffitt’s evidence on this point and, having heard that evidence, I am satisfied so that I am sure that Mr. Moffitt subjectively appreciated the time when he needed to provide this information and that in not providing it he therefore deliberately breached the second Search Order. I therefore make a finding of non-compliance or breach of Contempt 12 and that is in line with Mr Moffitt’s plea of guilty. But I have, I stress, independently satisfied myself that Contempt 12 is established. I find, to the criminal standard, a deliberate breach of the Search Order satisfying the requirements laid down in [20] of Farnsworth.(13) Finally, Contempt 13, which is a breach of the Third Order, involves another failure to provide information to which Mr. Moffitt responds in paragraphs 55 to 56 of his third affidavit and to which he pleads guilty. I find, to the criminal standard, a deliberate breach of the Search Order satisfying the requirements laid down in [20] of Farnsworth.[30]In conclusion, I find established beyond all reasonable doubt that Mr. Moffitt is in contempt and that all of the Contempts have been proved to the requisite criminal standard save that:(1) Contempt 4 is only established in part for the reasons that I have given and to the extent that I have said.(2) Contempt 11 is not established. That concludes the third part of my ruling.[31]I turn then to my fourth area of consideration, which is, in light of the Contempts that I have found, what the appropriate penalty should be. I should say at the outset of this part of my judgment that I appreciate that imprisonment is always a punishment of last resort. I have considered in the case of each contempt whether a sentence other than imprisonment might be sufficient. I have also considered whether any sentence might be suspended. I have, of course, also considered all of the Contempts in the round in order to ascertain whether the overall penalty that I reach is appropriate in the light of the Contempts.[32]After careful consideration I have concluded that immediate imprisonment is the only appropriate outcome in this case in respect of each of the Contempts. I will, of course, justify specifically the sentence that I reach for each Contempt, but as a general point I stress that search orders are an essential part of the armoury of the court in proper cases. Such orders are only granted after extremely careful scrutiny by a judge. When such an order is granted, it must be obeyed, and it must be obeyed according to the specification of the order. It is not for the defendant to pick and choose how the order should be complied with. Until and unless it is varied, the order must be obeyed according to its terms. Failure to obey a clear order of the court, which I have found to exist in this case, must be sanctioned so that the authority of this court in this critical area is not undermined.[33]Additionally, search orders are generally granted ex parte and without notice to the target of the order. They are executed without notice to the target of the Search Order. That is for a very good reason. That reason is – it is trite – to ensure that no evasion can be attempted before the order is executed. But, of course, the entire efficacy of the order hinges upon the fact that it is, when executed, respected strictly according to its letter and according to its terms.[34]The factors that I should take into account are without a numerus clausus – the list of relevant factors remained unclosed. A list of relevant factors are helpfully set out in a separate skeleton submitted by Mr. Reed. I appreciate entirely why a separate skeleton on this point was submitted. A prosecutor, it is well established, should not have a say on sentence. That said, the court will consider accepting help on questions relevant to sentence. I take the submissions made by Mr. Reed into account with great care, bearing in mind that this is a decision that is mine and mine alone.[35]The relevant factors that are listed in the separate note on sentencing are set out in paragraphs 8 and 9. They are as follows:• Whether the claimant is prejudiced by virtue of the contempt or whether the contempt is capable of remedy• The extent to which the contemnor has acted under pressure• Whether the breach of the order was deliberate or unintentional• The degree of culpability• Whether the contemnor was placed in breach by reason of the conduct of other• Whether the contemnor appreciates the seriousness of the breach• Whether the contemnor has cooperated• Whether the contemnor has admitted his contempt and entered a guilty plea with more credit being given the earlier the admission• Whether the contemnor has made a sincere apology for his contempt• The contemnor’s previous good character and antecedents• Any other personal mitigation advanced on his behalf• Whether the breach is ongoing• Whether the contemnor has purged his contempt• Whether there has been acceptance of responsibility• Whether the contemnor has shown remorse• Whether any reasonable excuse has been put forward[36]It goes without saying that I bear these factors in mind. There are also certain factors specific to this case which I will also bear in mind.[37]There are, I consider, before going into the specific factors regarding Mr. Moffitt’s breach of the orders, some general factors that I should address now.[38]First, there is Mr. Moffitt’s relationship with, and antipathy towards, the Plymouth Brethren Christian Church. I accept that Mr. Moffitt has strong feelings in this regard. He is obviously entitled to have strong feelings, but the existence of those feelings is nothing to the point. The orders that I have been speaking of were not orders of the Plymouth Brethren Christian Church. They were orders of this court and they should have been obeyed. I regard Mr Moffitt’s relationship to the PBCC as an entirely irrelevant matter on the question of sentence.[39]Secondly, there is the question of mental health. In paragraph 14 of Mr. Moffitt’s third affidavit he describes a reference to a psychologist to have an assessment. There is no suggestion in the evidence, however, that Mr. Moffitt was in any way psychologically impelled to breach the orders and I find that he did so of his own free will, voluntarily. I do not regard the issue of mental health as a relevant factor, and (to be fair) Mr. Calzavara did not himself press the point.[40]Thirdly, good character. In paragraph 12 of his third affidavit, Mr. Moffitt puts his good character in issue saying:
“I have never previously been convicted of contempt in any Civil Court.”
However, Mr Moffitt has been convicted of various criminal offences, as Mr. Stacey describes in his second affidavit but, more importantly, as Mr. Moffitt accepted without any reservation in cross-examination. I regard the question of good character as an entirely neutral factor in this case. It has neither influenced my sentencing up nor down. I have regarded the Contempts as essentially self-standing and I have sentenced in that light. I stress that I have not added anything to my sentences because of Mr Moffitt’s prior convictions.[41]There is, of course, a final general factor, but it is one which I can only address later. This is the question of Mr Moffitt’s apology and the extent to which he has purged his contempt. That is a point that I must leave to the end after considering the manner of Mr. Moffitt’s non-compliance with the orders. It is that to which I now turn.[42]Mr. Moffitt’s breaches can be grouped according to their subject matter. I will use four groups:(1) First, there are the Contempts relating to the failure to allow the Search Order to be executed. I refer in this regard to Contempt 1, Contempt 2 and Contempt 3.(2) Secondly, there are the Contempts where Mr Moffitt failed to provide information that he was ordered to provide: Contempt 4, Contempt 12, Contempt 13.(3) Thirdly, there are Contempts whereby the Search Order was or could have been publicised to third parties, when it should not have been. That also involves the use of Electronic Devices in breach of the Search Order and the use of social media also in breach of the Search Order. But the real mischief, of course, is the publication of the Search Order to third parties. I refer to Contempt 6, Contempt 7, Contempt 9 and Contempt 10.(4) The fourth and final group I label “Miscellaneous”, but that should not undermine the seriousness of this class. This group comprises Contempt 5, taking photographs of the search using an Electronic Device, and Contempt 8, the factory reset of certain Electronic Devices, namely the iPhone 7 and the iPad Pro.[43]It is difficult to imagine a more wide-ranging set of breaches of a search than the present case. Mr. Moffitt has by his conduct disregarded pretty much every aspect of the Search Order regime. In doing so, he has certainly put the Claimants to additional costs. Equally, he has undermined, for the reasons that I have outlined, the efficacy of the Search Order regime. Quite how much harm has occurred as a result of these breaches is something, unfortunately, we will never know. But the fact is, as I have said, these orders are meant to be obeyed for the very clear reasons that I have indicated.[44]I proceed then to the detail. I begin with the failure to allow the Search Order to be executed, the first group of Contempts. Mr. Moffitt’s evidence was that the Search Order was unprofessionally executed by Mr. Ractliff, whom he accused of a lack of gentlemanly conduct, a failure to explain the Search Order, hostile conduct, unprofessional conduct, venomous conduct and conduct that reduced his girlfriend to tears and caused psychological damage to her son.[45]I reject this evidence as in large part hyperbolic and certainly untrue. Mr. Ractliff presented in evidence as a mild-mannered professional man, keen to carry out his responsibilities as a supervising solicitor responsibly and well. Of course, as was submitted to me in the course of closing argument, a balance needs to be struck by the supervising solicitor between firmness (because these are serious orders) and politeness and gentility when executing them. It seems to me that Mr. Ractliff would have well in mind his obligations as a solicitor and that he would not have been firmer than was necessary. The search was in part videoed. Mr. Moffitt and I were shown these video files. Mr. Moffitt confirmed that the video clips that were played to him in court and which I have seen were fairly representative of the execution of the Search Order. Those video clips do not bear out Mr Moffitt’s assertions regarding the manner of execution which, as I say, I reject.[46]I reject also the suggestion made by Mr. Moffitt that he perceived Mr. Ractliff to be some sort of “stooge” of the PBCC. Mr. Ractliff will have made clear and Mr Moffitt, as I find, understood that Mr. Ractliff was acting as a supervising solicitor independent of the parties. Mr. Ractliff handed over, at the commencement of the execution of the search, his own card and his practising certificate showing that he was a solicitor of the Senior Court.[47]I also reject the suggestion that Mr. Moffitt was in some way cowed by the process. I appreciate, of course, that a search order as one of the more formidable weapons in the court’s armoury. Such an order involves a large number of persons descending on the defendant. But the video clips show a very self-possessed Mr. Moffitt and I entirely reject the notion that he was cowed by the process. Indeed, Mr. Moffitt’s demeanour in court, an experience that despite everyone’s efforts continues to be an intimidating one, demonstrated a distinct lack of intimidation on his part. In exchanges with Mr. Reed, Mr Moffitt gave rather better than he got.[48]I accept, and this was not controverted, that the Search Order was not explained to Mr. Moffitt by Mr. Ractliff. That, as I find, was a deliberate choice on the part of Mr. Moffitt. Mr. Ractliff offered, on several occasions, to explain the terms of the order and was not permitted to do so by Mr. Moffitt. That, I infer, is because Mr. Moffitt knew pretty much what was going on. Mr. Moffitt gave inconsistent evidence as to when he read the Search Order in detail, at times suggesting he read it extremely carefully so as to be able to comply with it in the future, at times suggesting he only gave it scant consideration and that he did not really understand what was going on. I find that Mr. Moffitt knew exactly what was going on. He knew that the PBCC was after the address books and, as I shall describe, he took clear steps to prevent the order being efficacious. That implies a good understanding of what the order was directed at.[49]What is more Mr Moffitt’s blogs, that is to say entries that he made onto his web blog, evidence an understanding of the material before him. He refers, for instance, to a “High Court order” and makes reference to the transcript of the private hearing before Birss J. on 17 October 2017, when he suggests the judge laughed. Whether Birss J. laughed or not is beside the point. The point is that Mr Moffitt must have been reading the transcript in some detail to have made the comment that he made on his blog.[50]I find that the Search Order was deliberately thwarted by Mr. Moffitt. I appreciate that the video that I have seen relates to the attempt to gain access which was not given to 4 Forlease Drive and that, later on in the process, access was gained to 68 Westwood Green. However, I do not accept that access to that second address was given by Mr. Moffitt. I find, given all the circumstances, that it was his landlady and/or her husband who independently gave access to those premises, without Mr. Moffitt facilitating the process.[51]The deliberation of Mr. Moffitt’s conduct in terms of thwarting the Search Order is demonstrated by what happened to the physical address books. These may or may not have been subject to the Search Order at all, being outside the two properties for which permission to search was given. I anticipate they were not actually within the scope of the Search Order, but after the Search Order was served, Mr. Moffitt attempted to place the physical books out of the reach of the Claimants by posting them to the Christian Brethren Archive known as the John Rylands Library, part of the University of Manchester. Mr. Moffitt was frank about his intentions in his evidence and I find that he was intent on depriving the Search Order of effect to the extent that he could. We will see this again in the context of the factory reset devices.[52]I have, in the case of each of the Contempts, been careful to impose the minimum term commensurate with the seriousness of the contempt. As regards the Contempts relating to the failure to allow the search order, that is to say Contempt 1, Contempt 2 and Contempt 3, I reject Mr. Moffitt’s mitigation of his breaches. I find that these breaches were intentional. I find that the purpose and effect of the Search Order was therefore thwarted. The breaches defeated the core purpose of the Search Order. I appreciate that Mr. Moffitt has since the attempted execution of the Search Order in some respects purported to comply with the orders of the court. I take that fully into account. The fact is that the without notice of a Search Order is important precisely to preserve evidence. Mr. Moffitt prevented the order from working as it should have done and that is, in essence, irremediable. For these reasons these breaches are very serious and for these Contempts the only appropriate minimum sentence is one of twelve months with immediate custody, these sentences to run concurrently with each other and with the other Contempts that I have yet to address. Of course, Mr. Moffitt will be entitled to be released after half this time, his contempts fully discharged.[53]In reaching these sentences, as with all of the Contempts, I take fully into account Mr Moffitt’s apologies and acceptances of guilt. These are significant factors, to be considered separately. They are both important factors to take into account, although they came late in the day and, as I find, actuated more by a desire to minimise the consequences of the breaches of these orders. The sentences I hand down, therefore, factor in the apologies and acceptances of guilt and, but for these apologies and acceptances of guilt, these sentences would have been materially longer.[54]I turn, secondly, to the Contempts where Mr Moffitt failed to provide information that he was ordered to provide, that is to say Contempt 4, Contempt 12 and Contempt 13. Little can be said save that information was not provided or perhaps more to the point was provided late and in an unsatisfactory manner calculated not to assist but to hinder the Claimants. For instance, Mr. Moffitt has never provided a clear, still less a comprehensive, list of access codes and passwords to his Electronic Devices, his Cloud Information and his Social Media Information. This information has been provided incompletely, without very much certainty or clarity. New information was provided even during the course of Mr. Moffitt’s cross-examination.[55]An example of this unhelpfulness appears in the form of the affidavit that was produced by Mr. Moffitt stamped 17 November 2017, which says in relation to passwords:
“I hereby swear that I have given all passwords, “Godolphin1967”, “…-66”, “…-44” for all accounts.”
The difficulty with this statement is self-evident. There is no statement of the accounts in question. There is no statement of the access code or user ID to these accounts. There is no direct relationship between the three passwords provided and the relevant account or relevant user ID. These are, therefore, and for those reasons serious breaches of the obligation to provide information as specified in the Search Order. I see them as marginally less serious than the first part of Contempts that I have considered and for these Contempts the only appropriate minimum sentence is one of ten months, these sentences to run concurrently with each other and with the other Contempts.[56]Thirdly, I turn to the Contempts whereby the Search Order was, or could have been, publicised to third parties, when it should not have been. I refer to Contempt 6, Contempt 7, Contempt 9 and Contempt 10. These Contempts also involve use of Electronic Devices in breach of the Search Order, but that to my mind is secondary. The real mischief is informing third parties of the order, so that further measures by the Claimants might be thwarted. I find that these were deliberate acts by Mr. Moffitt. I do not accept his explanation that he did not believe that what he was doing was infringing the Search Order. I believe he knew exactly what he was doing and he was deliberately seeking to thwart the effects of the Search Order.[57]In terms of the effects of the breach, that is, of course, difficult (if not impossible) to measure. The very point of search orders is to avoid asking questions of this sort. The aim of them is to capture evidence that would otherwise be destroyed or hidden if notice were given. For these Contempts, the only appropriate minimum sentence is one of twelve months, these sentences to run concurrently with each other and with the other Contempts.[58]Fourthly, I turn to what I have termed the “miscellaneous breaches”. Contempt 5 relates to taking photographs using an Electronic Device. I find that this contempt is relatively minor in the scheme of things, although it was nevertheless a deliberate breach. The appropriate sentence is one month imprisonment to run concurrently with the other Contempts.[59]I turn, finally, to Contempt 8, which is the factory reset of two of the Electronic Devices. This is an extremely serious, the most serious, breach of the Search Order. It involves the deliberate destruction of evidence and a dishonesty on the part of Mr Moffitt in explaining why and how the reset occurred. I entirely reject the tale that Mr. Moffitt span about transferring these devices to Mr. Bailey. Mr Moffitt could give no plausible explanation as to how or why the transfer was made and the timing of the transfer during the course and after the execution of the Search Order renders the conduct inherently suspicious. Mr. Moffitt was, as I find, trying to put the data on these devices beyond the reach of the court. Of course, I cannot know what data was present on these devices.[60]It is to my mind extremely clear that Mr. Moffitt was being disingenuous when addressing the court on 20 October 2017. That was when he appeared before Birss J. pursuant to the bench warrant issued by that judge. Looking at the transcript of that hearing, what Mr Moffitt says in answer to a question from the judge “No laptop computer?” is “No, I don’t have a laptop. I simply have an iPhone and an iPad, both of which are downstairs in the cells and I’m quite happy to surrender those.”[61]The problem is that this explanation, as Mr. Moffitt accepted in cross-examination, fails to refer to the two devices that were factory reset, which were or may have been at this time held by Mr. Bailey. It is, of course, unclear when these devices were transferred to Mr. Bailey. It is difficult to understand that these could have been transferred prior to this statement of Mr. Moffitt on 20 October simply because the iPhone 7 was used to take the photographs which constituted the substance of Contempt 5 and the arrest of Mr Moffitt pursuant to the bench warrant occurred fairly shortly thereafter. It would, of course, be wholly wrong to add to the list of Contempts, and I make no finding as to Mr Moffitt’s state of mind when he addressed the court on 20October. What I do say, however, is that this shows the lengths that Mr. Moffitt was prepared to go to keep material responsive to the Search Order away from the Claimants, until they could be dealt with by way of a factory reset. For this Contempt, which, as I say, I find is the most serious amongst the battery of contempts that I have considered, the only appropriate minimum sentence is one of fourteen months, this sentence to run concurrently with the other Contempts.

Cited in 2 later judgments