Magali Moutreuil v Peter Andreewitch Pier Investments Company Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cobb |
| Judgment Date | 22 May 2020 |
| Neutral Citation | [2020] EWHC 1301 (Fam) |
| Date | 22 May 2020 |
| Docket Number | Case No: FD19F00024 |
| Court | Family Division |
[2020] EWHC 1301 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Cobb
Case No: FD19F00024
ZC18P04081
James Weale (instructed by LSGA Solicitors) for the Applicant
Richard Thomas (instructed by Janes Solicitors) for the First Respondent
The Second Respondent was not separately represented
Moutreuil v Andreewitch (Contempt: No.2)
Hearing date: 18 May 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE Mr Justice Cobb
This judgment was delivered in public, albeit remotely. The judge has given leave for this version of the judgment to be published.
Introduction
The application before the court, dated 13 January 2020 (and in re-amended form, dated 27 April 2020), is for an order that the First Respondent (‘PA’) be ‘sanctioned in any manner which the court may think fit’ for alleged multiple breaches of an order made on 22 March 2019 1; that order (‘the freezing order’) had the effect of ‘freezing’ the income and assets (including, therefore, the company bank account) of the Second Respondent company (‘Pier’) of which PA is a director.
This judgment follows a re-hearing of this application. The previous hearing of the application, before Lieven J on 3 February 2020 led to findings which were the subject of an appeal. Her findings were set aside by the Court of Appeal on 17 March 2020. The judgment of the Court of Appeal is reported at [2020] EWCA Civ 382. The appeal succeeded on one fundamental complaint raised by PA, namely that “as an unrepresented litigant he gave evidence without having been informed of his right to silence” ( [2020] EWCA Civ 382 at [1]).
As counsel appearing at this hearing know, I have deliberately not read the judgment of Lieven J., but am aware of some of its contents, and her essential findings, as these are summarised in the judgment of the Court of Appeal (notably [2020] EWCA Civ 382 at [6]).
At this hearing, the Applicant (‘MM’) has been represented by Mr James Weale, and the Respondent by Mr Richard Thomas. I am grateful to them both for their skilled advocacy, and clear written representations.
Procedural issues
No procedural points have been taken at this hearing, but it is appropriate that I should nonetheless deal with a number of the relevant procedural issues which have inevitably arisen on this application.
Open Court hearing: The default arrangement for the conduct of most family hearings at present is by ‘remote’ video technology, in accordance with recently published guidance from the senior judiciary, including that issued by the Lord Chief Justice, President of the Family Division and the Master of the Rolls on 9 April 2020. As it happens, there is currently no explicit guidance in relation to the management of contempt or committal hearings.
At an earlier case management hearing, I made it clear that at this hearing I would consider only the disputed factual allegations underpinning this application, and if/as appropriate, make findings; I would not deal with sanction for any proven breach. This hearing was formally listed in the Royal Courts of Justice Cause List ‘For Hearing in Open Court’, as it should be. I personally sat, robed, in a court in the West Green Building to hear the case. The court was opened for members of the public but in fact no person attended. The parties and their legal teams all participated remotely using Skype for Business. Mr Farmer of the Press Association attended for at least
part of the hearing, also joining remotely. All parties were content with this arrangement. In light of my findings, thought will need to be given to the management of the hearing to deal with sanctionApplication to commit/Application for variation of the freezing order: Alongside this application in respect of the alleged contempt is an application issued by PA for variation of the freezing order. This was issued on 21 April 2020. This is the second such application, the first having been dismissed by Judd J on 14 January 2020. I indicated at the outset of this hearing that it would be inappropriate for me to consider this application to vary at the same time as the application in respect of the alleged contempt. I indicated that I would deal with the contempt aspect first; I wanted to avoid the situation in which PA may feel effectively deprived of the right of silence as he tries to field separate applications. It was recognised by all that this would be a serious procedural error 2. This approach was agreed by all parties.
Particularised complaint: The allegations which form the core of this contempt application have recently been re-particularised in an amended notice (using the Part 18 procedure) dated 27 April 2020 with schedule. PA was satisfied that the claim was sufficiently particularised. For my part, I too was satisfied that the alleged contempt was sufficiently clearly set out in the amended application, and complied with rule 37 of the Family Procedure Rules 2010.
PA evidence. For this hearing, PA had filed and served two signed witness statements. At the outset of the hearing, Mr Thomas told me that PA wished to give oral evidence. Given the circumstances in which this case has required a re-hearing (see [2] above), I nonetheless explicitly advised PA that he was not obliged to give oral evidence, acknowledging that “[t]he right to silence is a core element in criminal proceedings and proceedings of a criminal character” [2020] EWCA Civ 382 at [17]; I further warned him of the potential for adverse consequences or inferences from exercising that right to silence 3.
PA willingly gave oral evidence on affirmation at this hearing, and was cross-examined.
Self-incrimination: At the outset of PA's oral evidence I advised him that he was not bound to answer questions which may tend to incriminate him, to expose him to any criminal charge, penalty, or forfeiture which is reasonably likely to be preferred or sued for (per Goddard LJ in Blunt v Park Lane Hotels [1942] 2 KB 253).
I asked the advocates to be vigilant to ensure that PA was reminded of this right prior to answering any specific question to which the answer may tend to self-incrimination. This did not in fact arise.
Burden and standard of proof: In reaching my conclusions on the facts, I have applied the criminal standard of proof 4. I have further borne closely in mind that the burden of proving the matters alleged falls squarely on MM. I am satisfied that it is not a requirement to demonstrate that PA intended to and/or believed that the conduct in question constituted a breach of the freezing order. Rather, it would be sufficient for MM to show that PA deliberately intended to commit the act/omission in question. The parties agree that the approach to be adopted is that set out by Flaux LJ (giving the leading judgment) in Pan Petroleum AJE Limited v Yinka Folawiyo Petroleum Co Ltd [2017] EWCA Civ 1525 (‘ Pan Petroleum’) as follows at [43]–[44]:
“I have already indicated that it is not contended on behalf of Pan Petroleum that the appellants wilfully breached the Order, but that does not preclude a finding of contempt. Where the Court concludes that the party in contempt has acted on the basis of an interpretation of the Order which was not reasonably arguable, it is not necessary for an applicant to also show that the breach of the Order was committed with actual knowledge. Christopher Clarke J put this point clearly in Masri v Consolidated Contractors [2011] EWHC 1024 (Comm) at [155]:
“In my judgment the power of the court to ensure obedience to its orders for the benefit of those in whose favour they are made would be inappropriately curtailed if, in addition to having to show that a defendant had breached the order, it was also necessary to establish, and to the criminal standard, that he had done so in the belief that what he did was a breach of the order — particularly when a belief that it was not a breach may have rested on the slenderest of foundations or on convenient advice which was plainly wrong.”
As that passage demonstrates, equally it is no defence for the party in breach to show that it acted on the basis of legal advice. That will only go to issues of mitigation, not to whether there was a contempt: see the judgment of the Restrictive Practices Court (Megaw J President) in The Tyre Manufacturers' Conference Ltd's Agreement [1966] 1 WLR 1137 at 1162D-H.”
Brief background
The parties never married; they have five children. They lived together for approximately 20 years and separated in 2018.
There are currently three sets of substantive proceedings before the Family Court:
i) ‘Welfare’ proceedings under Part II of the Children Act 1989 (‘CA 1989’) concerning the living and contact arrangements for the younger four children;
ii) Schedule 1 CA 1989 proceedings in relation to financial provision for the children;
iii) ‘Ownership proceedings’ in relation to shares in Pier, a holding company which has as its main or sole asset the former family home.
A final hearing is listed before me in just under 4 weeks' time for me to resolve all the issues arising on these linked applications.
I take the summary of the background to this application from the judgment of Jackson LJ at [2020] EWCA Civ 382 at [2]:-
“The parties are in dispute, amongst other things, about the beneficial ownership of a valuable property in which they lived before their separation. The property is owned by a company of which PA is the sole director and MM...
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