Siboni v Ferrari & Anor [2025] EWHC 1110 (Ch)

[2025] EWHC 1110 (Ch)Ref. PT-2022-000814
IN THE HIGH COURT OF JUSTICE
IN THE BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY, TRUSTS AND PROBATE LIST (ChD)
Venue 7 Rolls Buildings, Fetter Lane
London
Before THE HONOURABLE MR JUSTICE MARCUS SMITH
IN THE MATTER OF
SIBONI (Claimant)
-v-
(1) FERRARI
(2) BARONE (Defendants)
MR R K SAHONTE, instructed by DMH Stallard LLP appeared on behalf of the Claimant
The Defendants did not attend and were not represented
JUDGMENT
24 MARCH 2025
__________________
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Between
SiboniClaimantFerrari & AnorDefendantDate 2025-03-24

Should the committal applications be heard at all?

[1]I have before me two applications, directed by HHJ Parfitt sitting as addition judge of the Chancery Division, for the hearing of committal applications for a breach of various orders of this court in the course of proceedings in the Property Trusts and Probate list of the Chancery Division.[2]The claimant, who I shall refer to as “C”, is Adriano Siboni. The defendants are:(i) “D1”, Luigia Ferrari; and(ii) “D2”, Natalie Barone. Neither of D1 nor D2 is present before me today on 24 March to respond to the substantive application for committal that is being moved. Neither has there been any substantive communication with the court by either D1 or D2 since the order of HHJ Parfitt was made.[3]In these circumstances, counsel for C, Mr Sahonte, makes clear that he wishes the court to proceed with what is, in effect, a criminal trial in the absence of the defendants. In the course of argument and submissions, I suggested to Mr Sahonte that there was a clear distinction between D1 and D2. The materials before me are voluminous. They run to two quite full lever-arch files. I have considered those materials and it is very clear to me that there is a distinction to be drawn between D2 and D1.[4]D2 is present in the jurisdiction and appears to be wilfully absenting himself. D2 has in the past been active in these proceedings and it is clear, although we will be coming to it, that it can be said that he has disregarded orders of this court and indeed done acts which are in contravention of those orders.[5]On the other hand, D1, apart from the question of issuing of letters of administration in this jurisdiction, which obviously will not have been an act done in contravention of a court order, even if it was an act that should not have been done, has not done anything else in the jurisdiction; and the precise relation between D1 and D2 are unknown.[6]In these circumstances, whilst the application against D1 is justified and the order of HHJ Parfitt, who permitted that application be moved, entirely right, I am not satisfied that it would be right to have that application moved today. There are two related reasons for that. First, it seems to me that this is a case where there can be no real benefit derived from considering the application, as against D1, further at this stage. I emphasise the words “at this stage”. That is because D1 continues to be absent from the jurisdiction. She is resident and appears to be domiciled in Italy; and that is where she has been throughout the course of these proceedings, which are proceedings in England and Wales. She has done nothing herself to show contravention of the orders made by this court. It does not seem to me that even if I were to conclude that she ought to be committed, that there is any chance of that achieving any real benefit to C.[7]Against this, it does seem to me as a matter of principle wrong, where no real benefit can be identified, to proceed with what is, in effect, a criminal trial in the absence of D1. She might have a great deal to say regarding what she had been told, perhaps by D2, about these proceedings. And it might very well be the case that she has not intentionally breached any orders of the court. It therefore seems to me that it is far more appropriate as regards D1 to adjourn with liberty to restore the application for committal, if in all the circumstances, that proves appropriate.[8]As regards D2, it seems to me that notwithstanding D2’s absence today, it is appropriate to proceed with the application. That is, first, because D2 is, on the evidence before me, present in the jurisdiction and appears from the material before me, to be wilfully absenting himself. It is also the case that D2 has played an active part in the proceedings, including – and again, we will be coming to this – an active part in breaching orders of this court.[9]It therefore seems to be appropriate, both for the importance of upholding court orders generally and the importance of ensuring compliance with the specific court orders that have been made, for the application to proceed as against D2. It seems to me that if the usual course is followed, which is to deal with the substantive application and make a committal order if appropriate but then allow time for the purging of contempt and submissions, that that is far and away the more appropriate course, notwithstanding the absence of D2 in this courtroom today. Accordingly, for those reasons, I adjourn with liberty to restore the application against D1 and I will proceed to hear the application against D2.

The application for committal

[10]Applications for committal involve a number of technical stages and formal requirements, which need to be complied with before an order can appropriately be made. I take the statement of the formal requirements, simply because it is analogous case, from Universal Business Team PTY Ltd v Moffitt [2017] EWHC 3251 Ch, which sets out in various paragraphs, the matters that need to be considered.[11]The first question is whether the application for committal is itself procedurally regular. The application notice for committal must state the consequences of the committal order, if it is made: Moffitt at [18(1)]. I have here seen the application notice. It appears at page 14 of the bundle that has been prepared for me and it is regular in form. The order permitting the application to be brought is later on in the bundle at page 853. It is the order of HHJ Parfitt, which I have already referred to. This is a very detailed order and I will not read it into the record but it does make specific reference to the consequences of the application succeeding. More importantly, it makes clear that C has retrospective permission to serve the orders, the breach of which committal is sought against D2 and the application to commit the evidence thereto and to serve these by email at the address given for service of the order.[12]So, there is in place an order for substituted service and it follows, therefore, that the usual requirement for personal service has been varied by order of the judge for reasons that are plain. It is simply not possible to identify an address for D2 at which he could be served. Accordingly, the application and the service of the application are regular.[13]I turn to the orders, which are said to be breached. There are two orders that are relevant, although in fact, it is only one order that has been said to be breached. Turning to those orders, they appear first at page 122 of the bundle. This is the order of Chief Master Shuman determining the dispute between C and respectively, D1 and D2. It is not the order said to have been breached. It is an order without a penal notice and it is one that leads onto the order that is truly material for these proceedings, which is the order at page 126.[14]This order, sealed on 9 August 2024, contains the appropriate penal notice to both D1 and D2, though D2 is the relevant person here and obliges certain matters to be done, which it is said have not been done. I will be coming back to that in a moment but it is quite clear that the order, which D2 is said to be in breach of is an appropriate order to permit this sort of application to be made.[15]The last requirement that I need to consider is the form of the evidence in support of the application. That appears at bundle page 24 and is an affidavit in regular form in support of the application for committal for contempt.[16]In these circumstances, it seems clear to me and I so find, that the formal requirements regarding the application itself are procedurally regular and I continue to consider the next stage of these matters.

The order said to have been breached

[17]In terms of the next stage of these matters, it is appropriate that I read into the record, in order to minimise the amount of argument and time that needs to be spent, that the orders said to have been breached are identified in paragraph 7 of the application notice. This paragraph refers to the second order of Chief Master Shuman, the one with the penal notice and identifies the breach and disobedience of the following paragraphs.[18]Paragraph 1.1 of the order states:
“D1 and D2 not to dispose of and/or charge, pledge, transfer and/or encumber the property known as the Second Floor, 103 Boundary Road, St John’s Wood, London, NW8 0RG.”
[19]Paragraph 1.2 of the order states:
“D1 and D2 not to dispose of, deal with or transfer any liquid assets comprised in or representing the proceeds of the estate of Lorenzo Ferrari, deceased, the deceased’s estate, including any such assets held in any bank account in the name of the first and/or the second defendant and/or any other third party either in England, Switzerland, Italy or elsewhere without written consent of the claimant or the further order of the court.”
[20]Paragraph 3 of the order states:
“D1 and D2 to disclose to the claimant, to C, the whereabouts of all and any banking accounts, which contain any deposit of money representing the liquidation of all or any part of the estate of the deceased by identification of the exact location of the account, the account number and/or any sort code, the person entitled to operate the accounts, the beneficiaries of such accounts and the sums of money on deposit.”
[21]Paragraph 4 of the order states:
“D1 and D2 to repatriate all monies held in any banking house, whether that be in Switzerland, Italy or elsewhere within 48 hours on service of this order.”
[22]Paragraph 5 of the order states:
“D1 and D2 to file and service a witness statement verified by a statement of truth in accordance with CPR part 22, containing the information required to be provided by paragraph 3 of the order.”

Has the order been breached?

[23]The breaches of the second order have been identified in and form the basis for the application for committal by C. I now turn to the question less of whether these breaches have taken place (they clearly have) and more to the question of whether they were intentional breaches. It is clear to the requisite standard that there have been breaches of the order of Chief Master Shuman. The matter to which I need to be satisfied to the requisite standard is the question of whether there has been an intentional non-compliance.[24]The crucial factor in applications like this is whether D2, prior to the time for compliance with the second order of Chief Master Shuman subjectively had notice of it. This is self-evidently an important matter when one considers the questions of contempt and it has to be satisfied to the requisite criminal standard. C has got to satisfy me so that I am sure that the alleged contempt had been established in terms of breach and in terms of intentional breach.[25]It is trite law but I will cite Farnsworthv Lacey [2013] EWHC 3487 Ch at [20]:
“A person is guilty of contempt by breaching an order only if all of the following factors are proved to the requisite 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 a knowledge of all the facts that would make the carrying out of the prohibited act or the omission to do so the required act, a breach of the order. The act constituting the breach must be deliberate, rather than be 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.”
[26]The application of these points in the present case are not straightforward. I am satisfied to the requisite standard that there has been a breach of the relevant order. The difficulty is whether one can establish to the requisite standard that the breach is culpable. It is necessary in this regard to go back to the relevant orders.[27]One starts with the second order of Chief Master Shuman, which is at page 126 of the bundle. One sees that that order is sealed on 9 August 2024. It sets out then the various matters in regard to which D1 and D2 are joined. It makes provision in paragraph 7 for service of the order abroad against D1. But in paragraph 8 simply says:
“The claimant is to serve this order on the defendants.”
There then follows a provision that the court has provided a sealed copy to enable that to happen.[28]So, in the ordinary course, one would expect this order to have been personally served on D2 and in the absence of an ability personally to serve an application for substituted service to take place. That did not happen. I want to be very clear that there is no question of criticism of C’s present solicitors, who came on the record after these events. But it does appear that the solicitors then on the record did not understand the importance of personal service when one has got a penal notice in an order and the potentiality, which of course a penal notice anticipates, of the likelihood of breach of the order, and so committal proceedings.[29]What appears to have happened is that there was service of court orders done by way of email. It does seem to me that it is clear, and I am satisfied to the relevant standard, that there was an attempt, a successful attempt, to email D2 with the substance of the order. The problem is this was not regular service; and D2 has been assiduous in avoiding too much substantive communication with C since the point in time in which the dispute between C, D1 and D2 was resolved.[30]There is, therefore, an issue that although the order of Chief Master Shuman was made on 9 August and although there was some limited and defective service, the acts done in breach of that order were done when service was, strictly speaking, irregular and the irregularity of service was really only achieved when the present solicitors of C came on the record and they effected service of these orders again supported by way of certificates of service evidencing service, which are at pages 831 and 834 of the bundle.[31]Now, the problem with these certificates of service is whilst they are done in pursuance of an order made by a judge, they are all dated February 2025. So, one has got one certificate of service dealing with some documents dated 24 February 2025 and a second one dated 26 February 2025. Now, that is no good for present purposes because it post-dates the breaches of the order.[32]I therefore must ask myself and ask myself with some anxiety whether the requisite standard has been met in terms of the evidence regarding the breach of the orders. In this regard the following documents in the record were adduced for my attention by counsel for C. Taking a non-chronological approach to this, I am going to begin with a letter dated 23 October 2024, which is to be found at page 347 of the bundles before me. This is a letter written by C’s present solicitors and as I say is dated 23 October 2024. What it says is, written to D2:
“As you are aware, following the remote hearing held on 31 July 2024, to which you participated, Chief Master Shuman handed down an order on the same date, the terms of which were self-explanatory. The previous firm instructed has confirmed, despite service of the order has been effective to you by email and post on 8 August 2024, you and Mr Ferrari failed to comply with the terms of the order. We refer you to the following provisions…”
Which are then set out and which I need not read into the record.[33]So, what we see here is an instance where there are breaches recorded in the letter of DMH Stallard, dated 23 October 2024, reference to the understanding that there was service by email and post of the order and reference to the after the event breaches.[34]We then see that there is knowledge at least of the first order of Chief Master Shuman. As is clear from the recitals in most of the orders before me, it is clear that D2 was present before the court at least remotely at which the order resolving the dispute that Chief Master Shuman has made and indeed, at which the drafting of that order and the consequential orders that should be mad were discussed.[35]This shows to the requisite standard knowledge of the originating order that is the problem in all of these proceedings. And it seems to me that it would be extremely odd to say that there had been done acts in contravention of this order, albeit not with a penal notice, that were unknown or unknowable by D2. It therefore seems to me that the deliberate acts – and they are deliberate, there is the payment out of the administrator account of the sum of £33 and there is also the disposal of a property. It is recorded in the eighth witness statement of Mr Butori at paragraphs 47 to 48 and the 11th witness statement at Mr Butori at paragraphs 32 to 34.[36]These intentional acts in defiance of the first order of Chief Master Shuman and the second order of Chief Master Shuman, which serves to buttress the first order with penal notice of the specific injunctive remedies, have knowingly and deliberately been breached, rather than inadvertently. It seems to me that these are acts, which are acts, not omissions and that they are deliberate because the context, viewing it in the round, was clearly known to D2.[37]As I have said, I have approached this point with a degree of anxiety, not because I am in any doubt as to breach but because I am in some concern about the extent to which the various factors that I adumbrated arising out of Farnsworth v Lacey can be met in this case. It does seem to me that I can say to the requisite standard that they have been met in this case.[38]It is highly unfortunate that there is an evidential gap between the 8 or 9 August and 23 October. The first of these dates being when the judge made the second Chief Master Shuman order and the second date being the date when unequivocally, the new solicitors were on the record. But between those two dates, there is a problem in that things were not done regularly and one does not have a complete picture.[39]It does seem to me that it would be irresponsible of me to say that I should allow the technical failures of C’s earlier solicitors to render it impossible to proceed with the committal application in these circumstances. Although they are indirect pieces of evidence, they are cogent pieces of evidence that I have referred to and it seems to me that it is clear to the requisite standard that there have been deliberate breaches of the second order of Chief Master Shuman. I therefore find that the requisite requirements for committal for contempt have been met.

Sanction

[40]The application to commit for contempt is procedurally regular. The nature of the order breached is one that is sufficient to trigger the jurisdiction to commit. There has been a breach of the order that has been intentional. Therefore, I may proceed to consider the question of sanction.[41]It is trite that imprisonment is always a punishment of last resort and that other penalties should be considered first. The fact is, however, here we have a final order of Chief Master Shuman at the end of a contested administration proceedings at which orders were made which were contrary to the desires and arguments of D2. D2 does various matters dealing with the estate in which C is interested which are at variance with those obligations. Some of those were done before the final outcome of the proceedings but others were done afterwards. It is clear that these have had the effect of fundamentally undermining the efficacy and worth of the order made by Chief Master Shuman and sealed on 9 August.[42]It was in order to give validity and force to that order that the second order, the one which has triggered this application, was made. It was made with a penal notice and it was intended to ensure regularity in accordance with Chief Master Shuman’s judgment. The acts, which have been committed by D2 have been to thwart both the first and the second order and the due administration of justice in the round.[43]The position is that C is being put to very considerable expense and effort to stuff the toothpaste back into the tube and to ensure that the orders of this court are respected. I do not need to say any more about the seriousness of this matter. The fact is that court orders, whether they relate to minor or to major matters, must be obeyed. In this case, they relate to major matters because the disobedience to these court orders has had the unfortunate effect of undermining the outcome of a proper court process and that can prima facie only be sanctioned by a sentence of immediate imprisonment.[44]That is not the order I am going to make for reasons that I will give but that is, in this case, my starting point. The question then is what level of sentence is required? The factors, which are material are set out in the sentencing guide. They are a good indicative list and I will here touch upon the ones which it seems to me matter most and are material in this case.[45]The first of these is whether C has been prejudiced by virtue of the contempt. It goes without saying that the contempt has been severely prejudicial on C’s interests and indeed, that is why I consider a custodial sentence of imprisonment to be appropriate.[46]Secondly, the extent to which the contemnor, D2, has acted under pressure. We have not heard from D2 but it would appear that there is nothing that has been done under pressure here. Rather D2 has acted as a voluntary agent. That, therefore, is an exacerbated matter.[47]Whether the breach of the order was deliberate or unintentional. This is a matter to which I have given anxious consideration to and I will not repeat that consideration. Two points, however, need to be made. First of all, this is not a question of there being a failure to act, which can be entirely non-culpable. Here, even post the order sealed on 9 August, there have been acts done by D2, which can only be regarded as deliberate. Whether they were in deliberate flouting of the orders of this court is a separate matter, which I have given separate and earlier consideration in this ruling. And for the reasons that I there gave, it seems to me that they are deliberate in this second sense also, in that knowing of the orders of the court, D2 has acted in contravention of them. This is therefore also, an exacerbating factor in the degree of culpability, accordingly higher.[48]I do not know whether D2 appreciates the seriousness of their breach nor whether D2 was placed in breach by reason of the conduct of another but it seems to me that the second point is no, I can see no one else acting. And the seriousness, well, I do not know the answer to that but orders of this court are important and it is quite clear, as I say, that deliberate acts have been done to avoid the effects of the orders made and to undermine them.[49]There is no question D2 had not cooperated. There has been an absence of cooperation and there has been no admission of contempt, no guilty plea and no apology. All of these are exacerbating, rather than mitigating factors.[50]I have no idea as to the contemnor’s previous good record and no understanding of any other mitigating factors.[51]The breaches are ongoing. There is no purging of the contempt and there is no acceptance of responsibility or evidence of remorse. There is no reasonable excuse that has been put forward and nor can I see a reasonable excuse on the facts as they stand before me.[52]This is therefore a serious case and leaving aside the non-presence of D2, the appropriate custodial sentence, unsuspended, would be 14 months’ imprisonment. This would be split by way of attribution as four months’ punishment or/ deterrence and 10 months to secure compliance with the order or orders that have been made.[53]Let me explain my thinking behind this. It seems to me that the 10 months can relatively easily have been purged by a complete and frank compliance with the orders of this court, in particular, the second order of Chief Master Shuman, which is the trigger for this application. If there is full compliance, then it seems to me that the 10 months will be erased by a purging of contempt. Whether the four months’ imprisonment can be dealt with differently will depend upon any other factors that D2 puts in play.[54]I have made clear my reasons for imposing a 14 months’ imprisonment but I make equally clear that I have not heard from D2 in any way, shape or form. It therefore seems to me that it is important that there be a stay and a stay of 28 days before the orders that I have made be implemented by way of a warrant for arrest and imprisonment but a stay of 28 days be put in place to enable D2 to consider his position and in particular, to consider what submissions he would like to make in regard to the length of sentence and much more pertinently, to see whether there are any other steps well after the event that D2 can take to remediate the position and to show proper and respectful compliance with the orders of this court. --------------- This transcript has been approved by the Judge