Aerospace Tolling Ltd v Aerospace Technical Ltd [2012] EWHC 1086 (QB)

Case No 1HQ/12/0765[2012] EWHC 1086 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28 th November 2012
Before
THE HONOURABLE MRS JUSTICE SHARP
Between
AEROSPACE TOLLING LTDClaimantAEROSPACE TECHNICAL LTDDefendant
Digital Transcript of Wordwave International, a Merrill Corporation Company165 Fleet Street, 8th Floor, London, EC4A 2DYTel No: 020 7421 4046  Fax No: 020 7422 6134Web: www.merrillcorp.com/mls Email: mlstape@merrillcorp.com(Official Shorthand Writers to the Court)
MR DEAN DUNHOM (Solicitor Advocate) appeared for ClaimantMR SIMON McCARTHY (Litigation Friend) appeared for Defendant
Judgment
[1]On 20 September 2012, Mr Timothy Straker QC, sitting as a Deputy Judge of the High Court, made an order for the committal of Mr William Paulin(?), the second defendant and the respondent to this application.[2]The relevant parts of the order which were made on that occasion are as follows:
"(3) that for his contempt, the second defendant ("first contemnor") stands committed to prison for a period of 28 days from the date of this order. (4) that the warrant for committal in relation to the first contemnor remain in the court office at the Royal Courts of Justice and that execution of it be suspended so long as the first contemnor complies with the order in paragraph (5) below. (5) that for his contempt the first contemnor pays to Her Majesty the Queen a fine of £10,000 on or before Thursday, 18 October 2012."
[3]The circumstances which led to the making of that order are set out in the witness statement of Mr Andrew Settle(?) served in default of the application to commit.[4]There is no note of the judgment on the committal application before me, but a short report of it is contained in the bundle which has been produced on behalf of the claimant.[5]In short, an order was made by me on 5 March 2012. An order was made by Warren J on 5 March 2012. And a further order was made by Nicola Davies J on 25 April 2012. The court found Mr Paulin to be in breach of all three orders and detailed particulars of those breaches are specified in the order that was made.[6]It does not appear to be in dispute that the second defendant has not paid the fine of £10,000, the term upon which the sentence of committal to prison was suspended. This is confirmed by the evidence placed before the court in the further witness statement of Mr Settle dated 30 October 2012, which exhibits emails from the court service relating that such payment has been received.[7]The claimant accordingly applies by his notice dated 31 October 2012 through its solicitor advocate, Mr Dunhom, for the enforcement of the order.[8]Mr Paulin is not in attendance today. Instead an acquaintance of his, Mr McCarthy, who tells me he is a costs draftsman, has attended in order to assist. I have permitted him to address me on matters relating to this application, albeit, as Mr Dunhom has pointed out, there is no evidence before the court from Mr Paulin of any description relating to this application. There is no correspondence from him about it to the claimant or to the court, nor indeed any other document which is relevant to the matters I have to consider.[9]Mr McCarthy has courteously and helpfully addressed me on various matters. It appears he was under the misapprehension that the penalty that was imposed by the court was a fine with imprisonment in default. In fact, as I have already indicated, Mr Paulin was subject to a suspended sentence of imprisonment, suspended on terms that he pay the sum of £10,000, which, as Mr McCarthy has not disputed, he has not done.[10]Mr McCarthy has referred to various matters in relation to the personal circumstances of Mr Paulin and difficulties which he has faced. Of course, these are not matters in evidence; but, in any event, in so far as they bite on the matters I have to consider, there are a number of difficulties. First of all, a question has been raised relating to Mr Paulin’s bankruptcy which has now apparently taken place. Mr Paulin was made bankrupt on 2 October 2012. That is two weeks after the order was made. And it is suggested that in those circumstances Mr Paulin is not in a position to pay the sum of £10,000.[11]It is to be noted, as Mr Dunhom has pointed out, that before making the order the Deputy Judge knew that a bankruptcy hearing had been listed for October 2012 and, moreover, I am told that the Deputy Judge was informed by Mr Paulin that he did have the means to pay a fine, notwithstanding the forthcoming bankruptcy, because of assistance he would receive from his girlfriend.[12]Mr McCarthy has said that a couple of days ago, unfortunately for Mr Paulin, his relationship with his girlfriend broke down. However, again as Mr Dunhom has pointed out, the time for payment in compliance with the order was 18 October 2012 and, therefore, the time for complying with it had long passed before the relationship had broken down.[13]In any event, the difficulty with the submissions that are made are these: a court fine is not provable in the bankruptcy and is unaffected by it. There are emails which have been produced on behalf of the claimant from the Assistant Official Receiver and I refer in particular to that dated 27 November 2012 which makes that very point. It follows that a contemnor is unable to escape the consequences of his punishment for contempt, in particular, a sentence of imprisonment suspended on terms that the fine is paid by reason of his bankruptcy.[14]It appears, as one would expect, from the decision of the Deputy Judge and having regard to the sentence that was passed that he considered Mr Paulin's breaches were serious enough to justify imprisonment. Mr McCarthy invites me to adjourn the application to enable Mr Paulin to obtain representation. I do not adjourn this matter. In my view, Mr Paulin has had ample time to obtain representation if he wished to do so. There is no dispute that he has been aware of these proceedings and the time for dealing with matters which they raise has now arrived.[15]I have considered the nature of the breaches and whether there is any reason not now to bring the order into full effect. In my view, adjourning this matter would be simply to delay the inevitable. I am entirely satisfied there are no reasons why the order should not now be brought into effect.[16]Accordingly, Mr Paulin will therefore be committed to prison. The terms of the committal will be for a period of 28 days from the date upon which he is brought into custody; but in accordance with the relevant provisions he will remain in custody for half of that period. That is for a period of 14 days after which he may be released.[17]In view of his absence from court today, a warrant will need to be issued for his arrest, so that he may be taken to prison to serve the sentence which has been imposed.