Muhammmad Waris Saleemi v Asif Parvez [2025] EWHC 1341 (Ch)

[2025] EWHC 1341 (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 02/06/2025 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]I refer to my judgment earlier today in which I found that the claimant (“C”) had established that Mr Parvez (“D)” was in contempt of court and that I should proceed immediately to sentence in D’s absence. I have now heard further submissions from Mr de Beneducci, counsel for C, in relation to sentence and I see no reason not to give judgment immediately.[2]At the first hearing on 20 May I referred Mr de Beneducci to the Debtors the Act 1869 s 4. This provides:
“With the exceptions hereinafter mentioned, no person shall be arrested or imprisoned for making default in payment of a sum of money. There shall be excepted from the operation of the above enactment: … (3) Default by a trustee or person acting in a fiduciary capacity and ordered to pay by a court of equity any sum in his possession or under his control … Provided, first, that no person shall be imprisoned in any case excepted from the operation of this section for a longer period than one year; and, secondly, that nothing in this section shall alter the effect of any judgment or order of any court for payment of money except as regards the arrest and imprisonment of the person making default in paying such money.”

There shall be excepted from the operation of the above enactment: …

[3]As executor D is clearly a fiduciary. However, it is necessary to consider whether he is to be treated as having the sum in his possession or control. In Re Fewster [1901] Ch 447 Joyce J held that it was necessary to prove that the money was actually received by D. I have seen an email sent on 21.5.25 by Falcon Solicitors, who acted for D administration of the estate:
“Our instructions were limited to the sale of the property and to prepare the accounts based on the receipt and information supplied to us. On completion of sale in 2022, the sale proceeds were released to Mr Asif Pervez in the capacity of Executor.”
I am therefore satisfied that he received the Sum of £138,201 referred to in my first judgment.[4]The next issue is whether he still has the Sum in his possession or control. Counsel has referred me to Lewin on Trusts (20th edition) at 41-158:
“A trustee who has once had trust funds in his possession is treated by a court of equity as still having them in his possession until he has properly discharged himself, and it is not necessary, to bring a trustee within the exception, that he should have the trust funds in his actual possession or under his control at the time when the order is made.”
[5]Counsel took me to Marris v Ingram (1878) 13 ChD 338, which is cited in a footnote to Lewin. In that case Jessel MR gave a judgment of characteristic brevity and trenchancy. It was plain from his recital of the facts that there was evidence of receipt of the money and no satisfactory account of what he had done with it. In my judgment that accords with the proposition in Lewin.[6]Further, in Re Fewster Joyce J said that it is necessary to prove that the money “is or has been in the actual possession or control of the person sought to be committed” (my underlining). This, too, supports the proposition in Lewin. I am therefore satisfied that the case falls within Exception (3) to s.4 of the Debtors Act.[7]In A-G v Crosland [2021] UKSC 15 at [44], Supreme Court set out the approach to sentencing:
“1. The Court should adopt an approach analogous to that in criminal cases where the Sentencing Council’s Guidelines require the Court to assess the seriousness of the conduct by reference to the offender’s culpability and the harm caused, intended or likely to be caused. 2. In light of its determination of seriousness, the Court must first consider whether a fine would be a sufficient penalty. 3. If the contempt is so serious that only a custodial penalty will suffice, the Court must impose the shortest period of imprisonment which properly reflects the seriousness of the contempt. 4. Due weight should be given to matters of mitigation, such as genuine remorse, previous positive character and similar matters. 5. Due weight should also be given to the impact of committal on persons other than the contemnor, such as children of vulnerable adults in their care. 6. There should be a reduction for an early admission of the contempt to be calculated consistently with the approach set out in the Sentencing Council’s Guidelines on Reduction in Sentence for a Guilty Plea. 7. Once the appropriate term has been arrived at, consideration should be given to suspending the term of imprisonment. Usually the Court will already have taken into account mitigating factors when setting the appropriate term such that there is no powerful factor making suspension appropriate, but a serious effect on others, such as children or vulnerable adults in the contemnor’s care, may justify suspension.”
[8]I shall consider these in turn. i) As explained in my first judgment, C has wilfully disobeyed a court order with a penal notice. The contempt is aggravated by the fact that he is in a position of trust as an executor, that his non-compliance has had very serious consequences for C, and that he has evaded service of the contempt application and of the bench warrant. ii) A fine would not be a sufficient penalty. iii) I will consider this below. iv) It does not appear that there is anything to be said by way of mitigation. v) I am not aware of any persons other than D who will be affected by his sentence. vi) There has been no admission. vii) There is mothing to justify suspension of the sentence.[9]As to length of sentence, the only relevant authority which Counsel has found is Waldrop v Searson [2024] EWHC 2364 (Ch). The facts of that case were similar to the present, in that they involved an executor who was in breach of a court order to make an interim payment of £100,000. The defendant had been apprehended at Stansted Airport but had voluntarily come to court thereafter. He indicated some remorse and an intention to repay. HHJ Cawson KC imposed a sentence of 9 months suspended but indicated that, but for the mitigation, he would have imposed the maximum 12-month sentence under the Debtors Act.[10]In my judgment the minimum sentence which properly reflects the seriousness of the contempt is an immediate sentence of 12 months, not suspended. The only factor I can see in D’s favour is that the amount stolen, whilst a large sum of money for an ordinary person and a very large sum for C, is nevertheless smaller than many cases which come before this Division. However, I do not consider this to be sufficient reason for reducing the sentence.[11]It is common for judges who sentence to indicate how much of the sentence should be regarded as punitive and how much as coercive, but there is no requirement to do so. In JSC Bank v. Pugachev [2016] EWHC 258 (Ch) at [49] Rose J considered that it was not appropriate to do so, and her approach was followed by Cockerill J in XL Insurance at [113]. If D seeks to purge his contempt, much will depend on facts which are currently unknown. Without wishing to tie the hands of a subsequent judge who hears any application by D, I can see that a substantial reduction may be appropriate if he repays all the money and shows contrition.[12]I should make it clear that service of this sentence will not release him from a continuing liability to comply with the order made by Master Brightwell and reissued by Master Marsh.