Muhammmad Waris Saleemi v Asif Parvez [2025] EWHC 1340 (Ch)

[2025] EWHC 1340 (Ch)Case No PT-2023-000726IN THE HIGH COURT OF JUSTICECHANCERY DIVISIONBUSINESS AND PROPERTY COURTS OF ENGLAND AND WALESPROPERTY TRUSTS AND PROBATE (ChD)Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 02/06/2025
Before
MR DAVID HALPERN KC
Between
MUHAMMMAD WARIS SALEEMIClaimantASIF PARVEZDefendant
Mr Chris de Beneducci (instructed by Taylor Rose) for Claimant for The Defendant did not appear and was not representedHearing Hearing date: 28 May 2025Extempore judgment: 28 May 2025 (transcribed 30 May 2025)
Approved JudgmentThe transcription of this judgment was handed down remotely at 14.00pm on 2 June 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................MR DAVID HALPERN KC SITTING AS A HIGH COURT JUDGE

Mr David Halpern KC :

[1]This is the adjourned hearing of an application (the “Application”) by the claimant, Mr Saleemi (“C”) to commit the defendant, Mr Parvez (“D”) for breach of a court order with a penal notice attached to it. Mr de Beneducci appears as counsel for C as he did at the original hearing on 20 May. In this judgment I shall deal with 3 issues:1.1 Whether to proceed in D’s absence;1.2 The substantive issue of contempt; and1.3 If I find contempt, whether to proceed to sentence without an adjournment. The facts[2]The facts could hardly be simpler.[3]D is the sole executor of the estate of the late Leonard John Darlow and C is the sole beneficiary. D’s address is stated in the will and in the grant of probate as being 25 Gilliat Road, Slough SL1 3QX (the “Address”). Estate accounts were signed by D on 1.12.22, showing a net sum of £138,201.01 (the “Sum”) in the estate after payment of all costs and expenses. On 6.12.22 D emailed these accounts to C’s solicitors, Taylor Rose, from the email address asifp2008@hotmail.co.uk. This was the last that C or Taylor Rose have heard from him and he has failed to account for any money due to C.[4]C brought the current proceedings for an account. Master Brightwell ordered D to provide an account within 21 days and, in default, to pay the Sum within 28 days. The relevant parts of the order state as follows: “1. The Defendant shall, within 21 days of being served with this Order, send to the Court and to the Claimant an account of his dealing with the estate of Leonard John Darlow deceased, such account to be accompanied by all necessary receipts, vouchers and documentary evidence showing his dealings in relation to the estate, and verified by a witness statement supported by a statement of truth”. “3. If the Defendant fails to comply with paragraph 1 above, the Defendant shall, within 28 days of being served with this Order, pay to the Claimant the sum of £138,201, being the sum set out in the estate accounts provided by Falcon Solicitors, which accounts are signed by the Defendant but are undated”.[5]The order was personally served on D on 18.8.24. D failed to comply.[6]On 7.11.24 the order was reissued by Master Marsh endorsed with a penal notice. It was personally served on D at the Address on 21.11.24. Again he failed to comply.[7]The current application was issued on 22.1.25. On that occasion there were attempts to serve D personally at the Address but these were unsuccessful. On 30.4.25 Taylor Rose emailed the application to him at the email address stated above and also sent a letter to him at the Address.[8]The Application came before me on 20.5.25. Counsel invited me to hold pursuant to CPR 6.15(2) and 6.27 that the steps taken on 30.4.25 constituted good service and to make a finding of contempt, with sentence adjourned to a later date. I considered it very likely that the Application had come to D’s attention and that he was deliberately evading service, but I thought it right to give him the benefit of the doubt by adjourning the Application to today. I made the order requested in relation to service and issued a bench warrant requiring D to be brought before the court today. I directed that it lie on the file until yesterday, so that he would not spend more than one night in custody at this stage.[9]There was an attempt to execute the bench warrant but D was not at the Address and has not been found. The Deputy Tipstaff wrote to Taylor Rose this morning as follows:
“I write to inform you that attempts were made to execute the Warrant of Arrest against Mr Parvez at; 25 Giliat Road, Slough, Berkshire, SL1 3QX Mr Parvez was not at the property when Tipstaff attended. The occupants are Mr & Mrs Shafi, their son lives there with them, his name is Ubaid Shafi. They stated Mr Parvez has not been at that property for over three years. Mr & Mrs Shafi, and their son have rented that property for three years. They have received post before for Mr Parvez before but returned it as (Return to Sender). Further to this a gentleman showed about 6-7 months ago, asking the owns to sign for a grey/silver envelope with what appeared to be documents inside, they explained Mr Parvez dose not live there, and they did not sign for the envelope. It has been established that Mr Parvez possibly no longer resides at the address, the current occupants are Mr & Mrs Shafi, they do not have a forwarding address for him.”
[10]The Deputy Tipstaff has attended court today and confirmed the contents of the letter. Needless to say, the phrase “It has been established” in the final sentence of the letter is simply a reference to what he has been told. As counsel observed, the implication that D has not been connected with the Address for the past three years is obviously inconsistent with the fact that D was personally served with the Brightwell and Marsh orders at the Address in 2024.

Should I hear the Application in D’s absence?

[11]In Sanchez v Oboz [2015] EWHC 235 (Fam) Cobb J set out a checklist of relevant factors, to which I turn.[12](1) Whether D has been served with the relevant documents, including the notice of the hearing. As a result of my order he is deemed to have been served with the Application and notice of the first hearing. My order (giving notice of this hearing) was itself served on D by email.[13](2) Whether D has had sufficient notice to enable him to prepare for the hearing. The service by email and post on 30.4.25 gave him more than 14 days notice of the first hearing; the service of my order gave him 7 days notice of this hearing. I am satisfied that that is sufficient to enable him to instruct solicitors, or, if he did not have time to instruct solicitors, to come to court and ask for more time.[14](3) Whether any reason has been advanced for D’s non-appearance. He has not engaged at all with the process.[15](4) Whether by reference to the nature and circumstances of D’s behaviour, he has waived his right to be present (i.e., is it reasonable to conclude that D knew of, or was indifferent to, the consequences of the case proceeding in his absence). I am satisfied that his non-attendance is wilful. He was personally served at the Address with the Marsh order containing a penal notice. Since then he has gone to ground. On 15.5.25 the process server sent an email stating:
“Just to let you know our agent attended the address twice yesterday. The first occasion was at approximately 15.40 pm and no-one was at home at the address. He then returned later that evening and has reported the following: ‘Officer attended again this evening at 19:50hrs. Female stated he has left property and not heard from him. he made enquires of the neighbour who believe she is his family member and he is there but hasn't seen him this week. He left his number with the neighbour who is going to call him if he see's him back there.’ ” ‘Officer attended again this evening at 19:50hrs. Female stated he has left property and not heard from him. he made enquires of the neighbour who believe she is his family member and he is there but hasn't seen him this week. He left his number with the neighbour who is going to call him if he see's him back there.’ ”
[16](5) Whether an adjournment would be likely to secure D’s attendance, or at least facilitate his representation. Given that a bench warrant has been issued and that he cannot be found, I think it unlikely that an adjournment would secure his attendance.[17](6) The extent of the disadvantage to D in not being able to present his account of events. I am satisfied that Counsel for C has put the facts fairly before me. Indeed, in his skeleton he expressly draws attention to the duty of fair presentation as described by Bryan J in Dexia SA v Regione Emilia Romagna [2024] EWHC 3236 (Comm), per Bryan J at [27]–[29]. The facts are stark and it seems extremely unlikely to me that there could be any defence.[18](7) Whether undue prejudice would be caused to C by any delay: C’s affidavit says that he is a diabetic aged 66 who is living in temporary council accommodation which is compounding his health issues. D’s failure to pay the Sum has caused him considerable hardship, as a result of which he is living in penury.[19](8) Whether undue prejudice would be caused to the forensic process if the application was to proceed in D’s absence. D has not sought to challenge C’s evidence in any way and I am satisfied that Counsel has complied with his duty to bring to my attention any points that could be made in D’s favour (there are none).[20](9) The terms of the “Overriding Objective”. Proceeding in D’s absence would be consistent with the overriding objective of dealing with cases justly and at proportionate cost. I therefore conclude that I should hear the Application in D’s absence. Has contempt been established?[21]The relevant test is set out by Warby LJ in Cuciurean v Secretary of State for Transport [2021] EWCA Civ 357 at [13], approving an earlier dictum of Proudman J:
“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’s Order is relevant to penalty.”
[22]Further guidance as to the mens rea is provided by Rose LJ (as she then was) in Varma v. Atkinson [2020] EWCA Civ 1602 at [54]:
“… once knowledge of the Order is proved, and once it is proved that the contemnor knew that he was doing or omitting to do certain things, then it is not necessary for the contemnor to know that his actions put him in breach of the Order; it is enough that as a matter of fact and law, they do so put him in breach.”
[23]I refer to my recital of the facts. I am satisfied to the criminal standard that:23.1 He was personally served with both the Brightwell order and the Marsh order containing a penal notice. He therefore received notice of these Orders;23.2 In addition he knows that he is an executor with a duty to account and he must know that he has failed to do so; and23.3 He has failed to comply with these orders and I am satisfied that he must know that this is the case.[24]I therefore find that contempt is established. Should I proceed to sentence?[25]In JSC BTA Bank v Solodchenko [2011] EWHC 1613 (Ch), Briggs J (as he then was) decided to hear a contempt application in D’s absence but said at [13] that it was appropriate to adjourn before sentencing; he issued a bench warrant to secure D’s attendance at the sentencing hearing. At [16] he gave three reasons for adjourning, which I summarise as follows:25.1 To give D an opportunity to mitigate;25.2 To give him an opportunity to purge his contempt before sentence; and25.3 Because an adjournment might bring D to his senses.[26]Although this may well be an appropriate course in most cases, the court has a discretion to proceed immediately to sentence, which was the course taken by Cockerill J in XL Insurance v Ipors Underwriting Ltd [2021] EWHC 1407 (Comm). At paragraph at [88] she said that it was appropriate to proceed to sentence immediately “for essentially the reasons given above”. I understand this to be a reference to Cobb J’s guidelines in relation to proceeding in D’s absence, which she considered at [47]. The same course was adopted by HHJ Matthews in the Bristol County Court in Stringer v Potgieter, 10 October 2022.[27]The principal difference between Solodchenko and the present case is that a bench warrant has already been issued, without success. D was therefore required to come to court today, where he would have had the opportunity to address the three matters considered by Briggs J.[28]I am satisfied that I should take the unusual course of proceeding straight to sentence for the following reasons:28.1 The contempt is clear and serious.28.2 I cannot see what D could say by way of mitigation if he were present.28.3 A bench warrant has already been issued, but without success. I am satisfied that he has chosen not to be present and has failed to engage with the process.28.4 It would be disproportionate to put C to the expense of a further hearing.