GML International Ltd v Jonathan Henry Martyn Harfield
| Jurisdiction | England & Wales |
| Judge | Mr Justice Choudhury |
| Judgment Date | 15 September 2020 |
| Neutral Citation | [2020] EWHC 2667 (QB) |
| Docket Number | Case No: QB-2018-003978 |
| Date | 15 September 2020 |
| Court | Queen's Bench Division |
[2020] EWHC 2667 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Choudhury
Case No: QB-2018-003978
The Queen on the application of
Mr Y. Bheeroo (instructed by Keystone Law) for the Claimants.
THE DEFENDANT was not present and was not represented.
Hearing date: 15 September 2020
Introduction
This is the claimants' application to commit the defendant to prison, or alternatively for such other sanction to be imposed by the court as the court sees fit, for failing to comply with the terms of a freezing injunction made by HHJ Simpkiss, sitting as a Judge of the High Court, on 23 July 2020. I shall refer to that as “the freezing order”.
The allegations made against the defendant are set out in the grounds of committal. These are that:
1. He contumaciously and / or deliberately breached paragraph 7(1) of the freezing order by failing to inform the claimants' solicitors by 4.30 pm on 24 July 2020, alternatively by 27 July 2020, of all of his assets as defined, “Held worldwide exceeding £1,000 in value”.
2. He contumaciously and / or deliberately breached paragraph 8 of the freezing order by failing to swear and serve on the claimants' solicitors by 31 July 2020 an affidavit disclosing all of his assets as defined, “Held worldwide exceeding £1,000 in value”.
Should the Court proceed in the Defendant's absence?
The defendant is not in attendance today and nor is he represented. By a letter dated 9 September 2020, the defendant's solicitors, McDermott Will & Emery (“MWE”), wrote to the claimants' solicitors, Keystone Law, confirming that neither they nor counsel had instructions to appear at the hearing of the committal application. It does appear, however, that MWE remain on the record for the defendant, and there has been no formal notification otherwise. It is to be noted also that MWE acted for the defendant at the trial of the main action in February this year, at the application for the freezing order before HHJ Simpkiss, and that they continue to act for him in ongoing insolvency proceedings. It would appear therefore that the lack of instructions from the defendant to MWE is confined to this committal hearing alone.
The question which arises is whether the hearing should proceed in the defendant's absence or whether it should be adjourned to some later date so that the defendant can be present to answer the charges of contempt against him.
I indicated in the course of the application this morning that I would proceed in the defendant's absence. My reasons for doing so are as follows:
Mr Bheeroo, who appears for the claimants, as he did at trial and on the application for the freezing order, reminds me that the usual approach, where the court is satisfied that the defendant has been properly served and has decided intentionally to absent himself, is to proceed with the hearing, and that is the case even where the hearing deals with committal. I was referred to the judgment of Cockerill J in ICBC Standard Bank Plc v Erdenet Mining Corp LLC (EMC) [2017] EWHC 3135 (QB), which sets out at [55] of the judgment a checklist of principles established by Cobb J in the case of Sanchez v Oboz [2015] EWHC 235 (Fam) to be applied when the court is considering whether to proceed in the absence of a respondent. These principles, and my observations in relation to each, are as follows:
“(i) Whether the respondents have been served with the relevant documents, including notice of this hearing”: Here, there can be no doubt that the defendant has been served with the relevant documents and notice of the hearing. The claimants were permitted by the order of Murray J dated 26 August 2020 to serve the documents by email to a specified email address known to belong to the defendant. MWE were also served with the relevant documents, and are aware of the hearing, as confirmed in their letter dated 9 September 2020. MWE further confirm in that letter that the documents are to be served on the defendant directly at the email address which is known to the claimants. It is also suggested that the documents could be sent to MWE if that is convenient, the implication being that not only was MWE still in touch with the defendant but also that it could receive documents on the defendant's behalf.
“(ii) Whether the respondents have had sufficient notice to enable them to prepare for the hearing”: The defendant was served with the relevant documents on 26 August 2020. That was almost three weeks ago. I consider that to be ample notice for the defendant to prepare his response to the application. That would be ample even in a relatively complex application. As it is, the allegations of breach of the freezing order in this case are relatively simple, the issue being one of failure to provide any of the information ordered, or to provide a supporting affidavit.
“(iii) Whether any reason has been advanced for their non-appearance”: I am told, and the correspondence or the absence of it bears this out, that the claimants know of no good reason for the claimant failing to appear. Whilst the available information suggests that the defendant is residing abroad, there is no suggestion that the defendant wishes to put in any evidence, or apologise to the court for non-attendance. Indeed, the specific act of effectively dis-instructing his representatives for this hearing suggests that the non-attendance is calculated.
“(iv) Whether by reference to the nature and circumstances of the respondents' behaviour, they have waived their right to be present; (i.e. is it reasonable to conclude that the respondents knew of or were indifferent to the consequences of the case proceeding in their absence?)”: Whilst MWE have stated that they are without instructions to appear at the hearing of the committal application, they remain on the record, and continue to act for the defendant in other proceedings. Mr Bheeroo submits that in these circumstances it can be reasonably inferred that the defendant knows and has been advised of the consequences of the case proceeding in his absence. I agree. The defendant clearly continues to receive detailed advice in relation to the ongoing bankruptcy proceedings, as is clear from the correspondence received by the claimants from MWE as recently as 4 September 2020. It seems highly unlikely that a defendant who is in receipt of such advice is not aware of or has not been advised as to the consequences of failing to comply with the freezing order. The reasonable inference to be drawn is that the defendant is aware, and has chosen nevertheless not to attend or be represented. He has, by implication therefore, waived his right to be present.
“(v) Whether an adjournment would be likely to secure the attendance of the respondent or facilitate their representation”: There is nothing here to suggest that an adjournment would secure attendance, or would facilitate the defendant's representation. It can, for reasons already discussed above, reasonably be inferred that the defendant has chosen not to attend. An adjournment is unlikely to alter that decision.
“(vi) The extent of the disadvantage to the respondents in not being able to present their account of events”: It is inevitable that there is some disadvantage to the defendant in not being able to present his account of events. However, the defendant has, as I have said, had ample opportunity to present his account. He could have done so in writing, or through his solicitors, should he have so wished. Instead, despite repeated prompting, the defendant has remained entirely silent as to the reasons for his apparent failure to comply with the freezing order. The nature of the allegations of contempt brought against the defendant are such that it is difficult to see what account of events the defendant could advance in his defence. As such, I consider the extent of disadvantage to the defendant in the circumstances of this case to be minimal, and such disadvantage that does exist is entirely of the defendant's own making.
“(vii) Whether undue prejudice would be caused to the applicant by any delay”: The claimants fear that the delay leading up to the hearing, and the defendant's conduct so far, may have already allowed him to take steps to dissipate his assets, and frustrate the claimants' enforcement efforts. Mr Bheeroo submits that any further delay would cause undue prejudice to the claimants. Asset disclosure is a critical element in securing enforcement of the judgment of Mr Richard Hermer QC, sitting as a Deputy Judge of the High Court. That judgment, which I shall refer to as “the Hermer judgment”, was issued on 17 April 2020. Since then, there has been no attempt, or no apparent attempt, to comply with any of the terms of the order made following upon the Hermer judgment. I agree with Mr Bheeroo that any delay in considering the application for committal of the defendant for contempt would risk undermining the seriousness of the alleged breaches of the freezing order, and may well cause considerable prejudice to the claimants in their attempts to enforce the Hermer judgment generally.
“(viii) Whether undue prejudice would be caused to the forensic process if the application was to proceed in the absence of the respondents”: This is not a case where there has been partial compliance, with the issue being whether there has nevertheless been substantial compliance. An examination of the extent to which there has been compliance may involve questions of fact and degree, and an interpretation of events or documents. The nature of the alleged breaches here is not such that the...
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