Hart v Hart [2018] EWHC 2966 (Fam)

Case No BM11D02463[2018] EWHC 2966 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Bristol CourtDate 05/11/2018
Before
HIS HONOUR JUDGE WILDBLOOD QCSITTING AS A JUDGE OF THE HIGH COURT
Between
Karen Jayne HartApplicantJohn Ralph HartFirst RespondentBrondesbury LimitedSecond RespondentSusan ByrneThird RespondentHalesowen Estates LimitedFourth Respondent
Peter Mitchell for ApplicantBen Williams for third and fourth Respondents for (The other parties did not appear)Hearing Hearing date: 5 th November 2018
JUDGMENT(sentencing of Susan Byrne and Halesowen Estates Limited)HHJ Wildblood QC :
[1]In my opinion, this is a ridiculous situation which is brought about by a steadfast refusal to obey court orders. No judge, myself included, would ever wish to be in the position of having to sentence an otherwise highly respectable and respected 65 year old woman, a committed family member, for contempt arising out of the divorce proceedings between her brother and her former sister-in-law. However, that is the position in which I now find myself and there is no avoiding it.[2]On 24th October 2018 I gave a judgment in which I found that Mrs Byrne and Halesowen Estates Limited (‘Halesowen’) were both in contempt of court. That judgment has been published in accordance with the Practice Direction issued on 26th March 2015 by the former Lord Chief Justice, Lord Thomas, and is reported on the Bailii website under the neutral citation of [2018] EWHC 2894. On 23rd February 2018 I had found that Mr Hart was in contempt of court and, on 15th March 2018, I sentenced him to a total term of 14 months imprisonment. In the judgment of 15th March 2018 I listed the specific documentation that had not been produced and I also set out the principles of sentencing that I applied, making reference to the decision in Crystal Mews Ltd v Metterick and Others [2005] EWHC 3087 (Ch). I will not repeat here all that I said about the principles of sentencing in that judgment.[3]Given the fact that, at the relevant times, the shares in Halesowen have been owned by Mrs Byrne and she has been the only director of the company, I do not intend to impose any separate penalty against the company. Therefore, from now on, this judgment records the sentence that I have decided must be imposed as a result of the contempt that I have found to have been committed by Mrs Byrne.[4]In deciding upon the sentence that I impose upon Mrs Byrne I take into account the following particular mitigating factors and matters of principle: i) She is a woman of good character who has made a long-standing and positive contribution to society. I have received an extensive amount of information on this issue and people have been good enough to write very impressive references for her, all of which I have read. As one referee wrote:
‘It would be a great tragedy for all whom are close to Susan should she receive a custodial sentence. A wife, mother, a grandmother and an amazing friend and any amount of time would be a sad loss of time with her loved ones.’ ii) She is in her mid-60’s (her date of birth is 20th December 1952) and, when suffering from stress and anxiety, experiences cervical and back pain with associated dysfunction, as stated by her physiotherapist in a letter dated 30th October 2018. iii) She has become involved in the aftermath of the bitter divorce proceedings between her brother and former sister-in-law. She is not one of the principal parties to these proceedings. iv) The divorce proceedings between Mr and Mrs Hart are very long-running and Mrs Byrne only became involved as a party at the stage of enforcement, after the main financial order had been made. v) Unlike Mr Hart, Mrs Byrne does not have the same extensive history of poor engagement in these proceedings from their inception. Mr Hart has been an ‘irresponsible litigant’ throughout these proceedings and was a ‘disaster as a witness’
. Unlike Mr Hart, Mrs Byrne has not given untruthful oral evidence in these committal proceedings. vi) Her contempt arises, I find, principally out of her sense of misplaced loyalty to the elder brother who has protected her and cared for her from a very early age. Although I do not accept that Mr Hart would ever have put Mrs Byrne in a position where he forced her to be in contempt of court against her will, I do accept that loyalty to her brother has been a major reason for her to act in deliberate breach of the relevant court orders (dated 24th February 2016 and 29th July 2016). I note, for instance that one character referee writes in this way about the relationship between brother and sister:
‘There is a substantial difference in age. I understand from Susan that their natural father left when she was a baby. John took over the role of father figure and thus it is not surprising that there is a strong bond of affection between them. Susan has been determined to stand by her brother and is very family orientated.’ vii) Her roles within Halesowen and Drakestown Properties Limited were as a person involved in Mr Hart’s overall financial empire. Although I have found, as she accepted at the time, that she was able to comply with the orders to which she consented in February and July 2016, I accept that Mrs Byrne’s participation in her brother’s financial empire added to her reluctance to do anything that might appear to signal disloyalty to him. viii) A sentence of imprisonment would have a very marked effect upon her. It would disgrace her within the community and would cause shame and resentment among the family that love her. It would also separate her from the family that she loves. ix) It is accepted that, together with Mr Hart, she should bear joint and several liability for the costs of these committal proceedings. I am told that Mrs Hart’s costs alone of the committal proceedings have been over £100,000. That, in addition to her own costs, is an immense financial burden for her to meet. x) The delay within these proceedings has been exceptional and has added to the strain upon Mrs Byrne. xi) I bear in mind the principles of sentencing that offenders, especially first-time offenders, should be kept out of prison if possible and that any sentences should be kept as short as possible. As was said in Templeton Insurance Ltd v Thomas [2013] EWCA Civ 35, at paragraph 42 ‘it will always remain appropriate to consider in individual cases whether committal is necessary, and what is the shortest time necessary for such imprisonment, and whether a sentence of imprisonment can be suspended or dispensed with altogether.’
[5]Balanced against those factors and matters must be the following: i) Mrs Byrne has had every opportunity to comply with the orders. During the hearings that took place in 2017 I gave very clear warnings about the consequences of any findings of contempt. Mrs Byrne is further aware of the seriousness of non-compliance by witnessing the findings and sentencing relating to Mr Hart. ii) At the time of the orders on 24th February 2016 and 29th July 2016 Mrs Byrne agreed that she would and could produce the documents ordered. She knew precisely what she had to do and has simply chosen not to do it. iii) Mrs Byrne is very well aware of the prejudice that has been caused to Mrs Hart through the lack of information. She knew that Mrs Hart needed the information if she was to run Drakestown Properties Ltd and she has chosen, deliberately, to prevent Mrs Hart from running it as it should be. In her loyalty to her brother, she has also joined in his resentment about the financial and property orders that I have made. iv) Certainly until today, Mrs Byrne has expressed no remorse at all for the contempt that she has shown. Today I have been informed by Mr Williams that she has looked for the documentation but that there is no more to be provided. That is as much as I am told. I have no account of what has become of the documentation that could and should have been provided after the consent orders of 2016. Nor do I have any explanation as to why non-documentary information has not been provided. v) Overall, her contempt has been deliberate, damaging, sustained and motivated. I regard those to be serious aggravating factors. As has been the case with Mr Hart, in the language of section 143 of The Criminal Justice Act 2003, her contempt has caused deliberate financial and emotional harm to Mrs Hart.[6]Mr Williams has helpfully distilled six points about sentencing for contempt from the judgment of Hale LJ (as she then was) in Hale v Tanner [2000] 1 WLR 2377 at pp. 2380H to 2381G. They are as follows:a. Imprisonment is not an automatic consequence of breach of an order.b. The full-range of criminal sentencing is not available but there is a range of things the court can consider, including taking no action, imposing a fine or sequestering assets, or suspending a sentence of committal.c. If imprisonment is appropriate the term should be decided and then the question of whether to suspend decided separately. The length of suspension again is separate but it is often appropriate to link it to future compliance.d. There are two essential objectives: to mark the court’s disapproval and to secure (where possible) future compliance.e. The length of committal must bear a reasonable relationship to the maximum of 2 years.f. Reasons should be given.[7]In my opinion, there has to be a very clear message that, where people are given every opportunity to comply with court orders like this but still choose to ignore them, firm punishment will follow. I do not consider that a financial penalty or any order for the seizure of assets would be sufficient in this case. The only sentence that could be justified as a mark of the seriousness of this contempt is one of imprisonment. In accordance with the above principles in Hale v Tanner, I will decide the term first before considering suspension. I note from the Sentencing Council’s guidelines relating to criminal sentencing that ‘a suspended sentence MUST NOT be imposed as a more severe form of community order. A suspended sentence is a custodial sentence. Sentencers should be clear that they would impose an immediate custodial sentence if the power to suspend were not available. If not, a non-custodial sentence should be imposed.’[8]In considering the term, I have given very careful thought to whether there should be a coercive element within the sentence and have borne in mind the following passage at paragraph 45 of JSC BTA Bank v Solodchenko (No 2) [2011] EWCA Civ 1241, [2012] 1 WLR 350 about sentencing in this field:
‘First, it upholds the authority of the court by punishing the contemnor and deterring others. Such punishment has nothing to do with the dignity of the court and everything to do with the public interest that court orders should be obeyed. Secondly, in some instances, it provides an incentive for belated compliance, because the contemnor may seek a reduction or discharge of sentence if he subsequently purges his contempt by complying with the court order in question.’
[9]I do not intend to add a coercive element to this sentence for these reasons: i) The sentence on Mr Hart did not coerce the production of the outstanding information. I do not think that any further coercive element will do so, either. I accept the skilful argument of Mr Williams on this point. ii) The basic sentence within the first category identified by Jackson LJ in the above passage would, of itself, act as an incentive to Mrs Byrne to produce the information if she is ever going to do so. A short additional coercive sentence would not add anything of benefit. iii) An overview of the sentencing of Mrs Byrne leads me to conclude that the first category prison sentence is sufficient.[10]The sentence that I impose is one of three months in custody in relation to the breach of each of the two orders (i.e. 24th February 2016 and 29th July 2016). Those sentences will run concurrently. They are deliberately and significantly less than the sentences imposed on Mr Hart whose culpability I consider to be far greater. They are short sentences, indeed as short as I can possibly make them, but having thought about them as much as I can, I think that they adequately reflect the authority of the court and also send a clear message of deterrence.[11]I accept that the suspension of a sentence of imprisonment is not only for the purposes of encouraging or rewarding the purging or remedying of contempt; it is a form of sentence that is available to mark that a type of behaviour warrants imprisonment but can be dealt with proportionately by the suspension of the sentence. I accept Mr Williams’s submission that suspension may be appropriate where there is cogent personal mitigation - Templeton Insurance Ltd v Thomas [2013] EWCA Civ 35 at paragraph 49. I also accept his submission that I should take into account ‘the Sentencing Council’s guideline to criminal courts on community and custodial sentences, pages 7 – 9 (enclosures pp. 48 – 50):a. A primary factor indicating that it may be appropriate to suspend a custodial sentence is “strong personal mitigation” (see table pg. 8 (enclosures pg. 49)).b. The guideline recognises that the suspended sentence of imprisonment is of itself (i.e. irrespective of any community requirements) ‘both a punishment and deterrent’’.[12]In the light of the aggravating features of these acts of contempt and notwithstanding the mitigating factors that have been urged upon me so skilfully by Mr Williams, I do not think that the sentence can be suspended in this case. The contempt is too grave.[13]Mrs Byrne, you will serve one half of that period in custody in accordance with section 258(2) of The Criminal Justice Act 2003. That means that you should be released shortly before Christmas and your birthday. You may apply to purge your contempt; your lawyers will explain what that means.[14]If there is an application for a stay of this order, pending any application to the Court of Appeal for a longer stay, I will hear that now. HHJ Stephen Wildblood QC 5th November 2018.