David William Thursfield v Linda Jane Thursfield (Respondent/Claimant)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lloyd,Lord Justice Jackson,Lord Justice Beatson |
| Judgment Date | 20 June 2013 |
| Neutral Citation | [2013] EWCA Civ 840 |
| Docket Number | Case No: A3/2012/3126 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 June 2013 |
[2013] EWCA Civ 840
Lord Justice Lloyd
Lord Justice Jackson
and
Lord Justice Beatson
Case No: A3/2012/3126
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(HIS HONOUR JUDGE PURLE Q.C.)
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Andrew Maguire (instructed by Bircham Dyson Bell LLP) appeared on behalf of the Appellant
Mr Lance Ashworth QC (instructed by SGH Martineau) appeared on behalf of the Respondent
This appeal is brought by the defendant in the proceedings against an order of HHJ Purle Q.C., made on 9 November 2012, by which the defendant was ordered to be committed to prison for 24 months for contempt of court consisting of his breaches of an earlier order of the same judge made on 6 December 2011 by way of a disclosure order ancillary to a freezing order.
The defendant appeals as of right because the order is a committal order, but it needs to be said that, despite the order having been made last November, he has not served any part of the sentence, since despite another order of the judge requiring his attendance at the committal hearing, he was absent from that hearing and he is understood to be, and to have been since before that date, outside the jurisdiction of this court. It may very well be that he has not the slightest intention of coming within the jurisdiction if and for so long as the committal order stands.
As I say, the appeal is as of right, and it was therefore not necessary for Mr Thursfield's appeal to be subjected to the preliminary consideration of a member of the court as to whether permission to appeal should be granted, and if so on what terms. That is the effect of the present rules, which require permission to appeal for almost all appeals, with only three particular exceptions, one being an appeal against a committal order because of the issue as to the liberty of the subject: see CPR 52.3(1)(a)(i).
On this appeal, Mr Thursfield's arguments have been ably presented in writing and succinctly orally this morning by Mr Andrew Maguire. Mrs Thursfield's position has been presented in writing by Mr Ashworth QC, from whom we have not found it necessary to call for supplemental oral submissions.
The parties to the proceedings were married, but the marriage was dissolved by an order of a court in the State of Michigan in the United States in 2005 following the parties having entered into a settlement agreement as regards their divorce proceedings, which had been acrimonious. If it was hoped that this agreement would bring an end to the bitter dispute between the parties, that hope was not realised.
Mrs Thursfield, the claimant, brought proceedings in the State of Michigan for breach of contract against her former husband, alleging, among other things, failure to disclose assets. In August 2006 she secured a judgment in her favour, but this was followed by further applications and orders, culminating in an order dated 3 January 2011 giving judgment in her favour against the defendant for sums in the region of US$5.8 million, said to be the equivalent (I am not sure at what date's exchange rates) to about £3.5 million.
The defendant appealed against that order. The appeal was dismissed for want of prosecution in March 2011, but the appeal was then reinstated later that year, and the appeal is still pending. The appeal does not challenge the whole of the judgment. We have been told that HHJ Purle was satisfied that, even if Mr Thursfield's appeal were wholly successful, there would be a liability on his part in favour of the claimant of the order of US$240,000. HHJ Purle heard an application for summary judgment on Monday of this week, Mrs Thursfield seeking judgment for the whole amount due. He did not make such an order, but he did make an order for an interim payment of $240,000, together with costs assessed at some £37,000 or so, otherwise adjourning the application.
All the appellant's documents relating to this appeal have made much of the proposition that the Michigan appeal is expected to come on shortly. It was hoped, on one side at any rate, that it would come on in the spring of this year but it still has not come on. We have not seen evidence about what is likely to happen. Mr Maguire was able to tell us that the respective US attorneys who have the conduct of the appeal differ in their view as to how long it is likely to be before the appeal comes on for hearing and in turn how long it is likely to be, or may be, before judgment is given. He says that, taking those two factors together, we are talking about a range of between two months from now to get to judgment on that appeal and, at the other end of the scale, the more cautious end, possibly up to 9 or 10 months. There is a further appeal to the highest appellate level in the State of Michigan, but permission would be required for such an appeal and we have no indication how long that might delay the final and conclusive resolution of this dispute in Michigan.
In the meantime, in May 2011, Mrs Thursfield brought proceedings here to enforce the US judgment that she had by then obtained. HHJ Purle granted a freezing order, and I think I am right in saying that there is also a freezing order in the State of Michigan. There was a hearing before Judge Purle on 8 July 2011. The freezing order was then continued until a date in September and then it was extended until after the full hearing that was planned for the end of November 2011. That hearing took place over four days (28 and 29 November and 5 and 6 December 2011), and on the last day HHJ Purle made an order in favour of the claimant, maintaining the freezing order in position, and he also made the disclosure order, breach of which led to the committal order which is under appeal. He ordered Mr Thursfield to provide certain information as to his assets and as to the source of the funding that had taken place for his legal expenses in the present litigation.
Mr Thursfield appealed against that order and sought a stay of the obligations under it pending the appeal. Lewison LJ granted permission to appeal, but adjourned the question of a stay. Etherton LJ at an oral hearing dismissed the application for a stay and furthermore, on the application of Mrs Thursfield, ordered security for the costs of the appeal. Mr Thursfield chose not to provide that security, so the appeal was struck out, but he also failed to comply with the disclosure order despite the refusal of a stay.
Accordingly, in July 2012 Mrs Thursfield applied to commit Mr Thursfield to prison for breach of the order. The committal application came before Judge Purle for the first time, I think I am right in saying, on 22 August 2012. By that time, Mr Thursfield had just sworn two affidavits in response, one of them I think that day or the previous day. They were served on that day. He was not present in court.
The judge adjourned the application to 9 November 2012. He gave directions about evidence and he ordered that Mr Thursfield must attend the hearing. In the meantime, before the matter came on, on 9 November Mr Thursfield swore one further affidavit and his solicitors provided some further information. Shortly before the hearing was due, Mr Thursfield's solicitors informed those acting for Mrs Thursfield that Mr Thursfield would not be attending the hearing and that counsel would be applying for an adjournment of the hearing.
On 9 November, as forecast, Mr Thursfield was absent from the court notwithstanding the judge's order. Mr Maguire applied on his behalf for an adjournment pending the hearing of the outcome of the Michigan appeal, a point which could have been made at the hearing in August but was not. The judge heard that application and gave a short judgment declining the application for the adjournment, and he therefore proceeded to hear the application on its merits.
In his second judgment of that date, having heard submissions on both sides, he held that Mr Thursfield was in breach of the disclosure order and that, even with the benefit, such as it was, of the information supplied at the latest stage in his last affidavit and the information given by his solicitors, the information disclosed was inadequate to comply with the obligations under the order.
Having held that there had been breaches of the order, which were continuing, and that accordingly Mr Thursfield was in contempt of court, he considered penalty, and he made the order that Mr Thursfield be committed to prison for 24 months, of which he described 12 months as being attributable to the punitive element of a committal order and the remaining 12 months as attributable to the coercive aspect of such an order.
By the present appeal, which as I have said is brought as of right, Mr Thursfield does not challenge the finding that he is in breach of the disclosure order and that he is therefore in contempt of court. It is put on two distinct grounds: the first is the judge's refusal to adjourn the case; and the second, which is really the substance of the appeal, such as there is any, is that the sentence was manifestly excessive.
The application for an adjournment before the judge was put on the basis of the pending appeal in Michigan. The judge refused that application, both because it was made so late and because, even if the appeal in the United States were to succeed, there would be an outstanding liability of Mr Thursfield to his former wife, and the disclosure order might still be useful.
Mr...
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