“… deliver up to the claimant and those individuals listed in paragraph 2 below the artwork listed in schedule 1 [of the order], until final determination of the Claim or further order of the court, by providing the artwork to the claimant and those individuals … on 20 and21 December 2021 .”
“In breach of the First Order, the Defendant refused to permit the Claimant’s agents access to the Property on20 December 2021 , and did not deliver up the artworks.”
“In breach of the Second Order, the Defendant refused to permit the Claimant’s agents access to the Property on24 January 2022 , and did not deliver up the artworks.”
“In the premises, the Defendant is in contempt of court.”
“The relevant law on the personal service of a claim form can be summarised as follows: i)CPR 6.3 (1) provides for services of a claim form by various means, including ‘personal service in accordance with rule 6.5.’ ii)CPR 6.5 (3) provides that ‘a claim form is served personally on an individual by leaving it with that individual …’. iii) Service on an agent could not be good personal service – see for example Morby v Gate Gourmet Luxembourg IV Sarl,[2016] EWHC 74 . iv) In what has been described as a ‘concession to practicality’, if the person upon whom service is being attempted will not accept the document, service can be effected either by handing the document to the person (what is often called a ‘limb 1’ case) or by telling ‘the person what the document contains and leaving the document … with or near the person (a ‘limb 2’ case) – see Kenneth Allison Ltd v A E Limehouse & Co[1991] 3 WLR 671 . v) Knowledge of what the documents contain for this purpose is acquired by it being brought to the intended recipient’s attention ‘that it is a legal document which requires his attention in connection with proceedings’ – see Hoffmann LJ in Walters v Whitelock, unreported,19 August 1994 , cited by Phillips J in Tseitline v Mikhelson[2015] EWHC 3065 (Comm) . vi) ‘The focus is on the knowledge of the recipient, not the process by which it is acquired’ – per Phillips J in Tseitline. vii) Once the intended recipient has ‘a sufficient degree of possession of the document to exercise dominion over it for any period of time however brief, the document has been ‘left with him’ in the sense intended by the Rule’ – see Waite LJ in Nottingham Building Society v Peter Bennet & Co. The Times,26 February 1997 cited by Phillips J in Tseitline. viii) If the intended recipient has gained possession within the meaning referred to in the previous sub-paragraph, it makes no different that the person seeking to effect service may subsequently remove the document, for example because the intended recipient has not taken the documents and has walked away from the – see Phillips J in Tseitline. ix) The burden is on the Claimant to show a good arguable case that service was effected on the Defendant – see for example Tseitline. x) Where an issue of fact arises as to whether there is such a good arguable case, the court must take a view on the evidence if it can reliably do so (Goldman Sachs International v Novo Banco SA[2018] UKSC 34 ). xi) If the court is not able to make a reliable assessment of an issue on the evidence available, it is sufficient for the Claimant to show a plausible evidential basis on the issue (again, Goldman Sachs International v Novo Banco SA[2018] UKSC 34 ).”
“On the first aspect, Mr Harber’s actions, no matter which version is most accurate, clearly amounted to leaving the documents with or near Mr Mikhelson. The envelopment was placed on Mr Mikhelson’s upper body and fell (or was thrown by him) to the ground by his feet, so there is no doubt that it was left near him and that Mr Harber had relinquished control of the envelope to him. An almost identical process was regarded as ‘leaving’ the document in Walters.”
“As indicated above, Mr Choo-Choy [that is counsel for the defendant] argued that, because Mr Harber picked up the envelope and lodged it between Victoria Mikhelson’s back and her bag whilst Mr Mikhelson was walking away, it was not left with him. For the reasons given above, in particular the reasoning in Nottingham Building Society, it matters not if documents are taken away by the process service if the recipient had sufficient control as to be able to exercise dominion over them, even for the briefest period: the documents have been left with the person being served.”
“Where committal is sought, personal service will generally be insisted upon, although the court has power to dispense with service of the claim form or notice of application (as the case may be), where it considers it just to do so, or order service by an alternative method or place. It was recognised that personal service would generally be insisted upon unless there was clear evidence of evasion. It was in the nineteenth century held that the attendance of the alleged contemnor at the hearing does not per se waive the need for service. The need for service also applies to a notice of an adjourned hearing date. Today the focus is upon what justice requires in the circumstances of the particular case, rather than upon any hard and fast rule.”
“Rule 81.5(1) brings into play the rules in Part 6 of the CPR on personal service and dispensing with service. We see no need for the 85.1(1) to say more. The judge would only dispense with personal service if sure the defendant is evading service or already aware of and fully informed about the contempt proceedings.”
“Provided a another DATE I will comply with the order or go back to the court because you didn’t agree follow the conditions to grant you access.”
“I didn’t let you in! You are trespassing.”
“The authorities demonstrate that it is vital for the court, in the interests of justice, to have effective powers, and effective sanctions. Without these, it would be possible for a defendant (or, in a different situation, a claimant) to flout the orders of the court, which are the court’s considered means by which to keep the scales of justice for the parties even. If once it became known that the court was unable or unwilling to maintain the effectiveness of its orders, then it would lose all control over litigation of this kind, with terrible consequences for the administration of justice. Those wrongly accused of fraud would be relieved of a certain amount of inconvenience, but fraudsters would rejoice and hitch a free ride to interminable litigation on the back of ill-gotten gains.”
“In order to establish that someone is in contempt it is necessary to show that (i) that he knew of the terms of the order; (ii) that he acted (or failed to act) in a manner which involved a breach of the order; and (iii) that he knew of the facts which made his conduct a breach.”
“There can be no doubt in the present case but that the judgment debtors have at all times been fully aware of the orders of this court. It is not and could not sensibly be suggested that the conduct of which complaint is made was casual or accidental or unintentional. However, the question arises whether it is, also, necessary to show that they acted knowing that what they were doing was a breach of, and intending to breach, any of the orders.”
“In my judgment the power of the court to ensure obedience to its orders for the benefit of those in whose favour they are made would be inappropriately curtailed if, in addition to having to show that a defendant had breached the order, it was also necessary to establish, and to the criminal standard, that he had done so in the belief that what he did was a breach of the order – particularly when a belief that it was not a breach may have rested on the slenderest of foundations or on convenient advice which was plainly wrong.”
“The affidavit evidence shows that XL [the claimant] went to great length to identify Mr Corcoran's whereabouts. While XL's agents were not invested with the power of arrest that a bench warrant would grant, I am satisfied that they took all reasonable steps to find Mr Corcoran and that they did not succeed in doing so. Despite all their efforts it is entirely unclear where Mr Corcoran is or whether he is susceptible to the powers of compulsion of this court. In the light of this, it appears unlikely that issuing a bench warrant would secure the attendance of Mr Corcoran. I address the issue of representation separately below.”