Magali Moutreuil v Peter Andreewitch Pier Investments Company Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cobb |
| Judgment Date | 16 November 2020 |
| Neutral Citation | [2020] EWHC 3085 (Fam) |
| Court | Family Division |
| Docket Number | Case No: FD19F00024 / ZC18P04081 |
| Date | 16 November 2020 |
[2020] EWHC 3085 (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.
Hearing dates: 16 November 2020
Approved Judgment
THE HONOURABLE Mr Justice Cobb
This judgment was delivered in public
On 22 May 2020, and following a contested hearing, I delivered a reasoned judgment in which I set out my findings of fact on the application of the Applicant (‘MM’) for an order that the court should impose sanctions upon the First Respondent (‘PA’) for multiple breaches of a freezing injunction which had been ordered on 22 March 2019 (DDJ Hodson). That judgment is publicly available and reported as Moutreuil v Andreewitch (Contempt: No.2) [2020] EWHC 1301 (Fam). Subsequently, I conducted a final hearing of the substantive dispute between the parties, at which I considered MM's claim in respect of legal and beneficial ownership of the shares in the Second Respondent company, and her claim under Schedule 1 Children Act 1989. That judgment is also publicly available as Moutreuil v Andreewitch & Another [2020] EWHC 2068 (Fam). PA sought permission of the Court of Appeal to appeal that decision; on 16 October 2020, permission to appeal was refused. I have further conducted a contested hearing dealing with child arrangements; the judgment in those proceedings has not been published.
I have today conducted a further hearing, somewhat later than had been hoped or expected, at which I have considered the sanction for those earlier proven breaches of the freezing injunction; this has been a hearing conducted in public at which PA was personally present. This judgment sets out the sanction I impose, and my reasons. For a complete understanding of this case, this judgment should be read with the judgments just cited.
For the purposes of this hearing, I have read further statements filed from MM and from PA. I have received able oral and written submissions from counsel for both the Claimant (‘MM’) and the First Respondent (‘PA’).
The findings
It is unnecessary for me to rehearse the findings earlier made in the judgment reported at [2020] EWHC 1301 (Fam). I wish simply to highlight just four points:
i) I found that the terms of the freezing order granted in March 2019 were clear and unambiguous; the order spelled out clearly on its face the consequences of breach ([18] / [28]);
ii) There had been multiple breaches of the order (MM asserts that there had been 562 withdrawals from the account; although not all of these were proved to be in breach of the order, the vast majority were proven); I added that “I find that he [PA] treated the account as his personal account. It is obvious that he used the funds for his own ends.” ([30]);
iii) I found that PA had little insight into his behaviour (“PA has a firm and unshakeable belief in his own narrative relating to the use of the frozen Pier account, but his narrative is simply implausible. His explanations for his use of the account over the months following the 22 March 2019 order are, in my judgment, contrived and disingenuous”) ([29]);
iv) I found that the breaches “… were deliberate, that is to say that I am in fact satisfied that PA made/procured the payments knowing that they were in breach of the freezing order” ([37](ii)).
My conclusion was set out at [30] of the earlier judgment:
“I am satisfied, to the required standard, and applying the guidance of Flaux LJ in the Pan Petroleum case … on the evidence which I have read and heard that PA deliberately removed sums from the frozen Pier account after the order of 22 March 2019, at all times intending to use the withdrawn sums for his own benefit”.
Powers of Sanction
I have wide powers of sanction ( FPR r.37.4 & r.37.9(1) FPR 2010) in circumstances in which I find that a respondent has disobeyed an order; the precise form of sanction is within the discretion of the court. I may impose a sentence of up to two years imprisonment ( Contempt of Court Act 1981, s.14(1)), or a fine of an unlimited amount. If I impose a sentence of imprisonment, it is open to me to order that execution of the committal order can be suspended for such period or on such terms as I consider appropriate ( FPR 37.28 FPR 2010).
In approaching this task in this case, I have followed the guidance given by Nicklin J in Oliver v Shaikh [2020] EWHC 2658 (QB) (at [14]–[21]), wherein he referred to the objects of the sanction being: (1) to punish the historic breach of the court's order by the contemnor; and (2) to secure future compliance with the order. He added at [17](iii):
“As with any sentence of imprisonment, that sanction should only be imposed where the Court is satisfied that the contemnor's conduct is so serious that no other penalty is appropriate. It is a measure of last resort. A suspended prison sentence, equally, is still a prison sentence. It is not to be regarded as a lesser form of punishment. A sentence of imprisonment must not be imposed because the circumstances of the contemnor mean that he will be unable to pay a fine. A sentence of imprisonment may well be appropriate where there has been a serious and deliberate flouting of the Court's order”.
And later at [18]:
“If a contemnor, even belatedly, demonstrates a genuine insight into the seriousness of his prior conduct and its unlawfulness, then the Court may well be able to conclude that the contemnor has ‘learned his lesson’ and the risk of future breach is thereby diminished.”
I note that in the case of JSC BTA Bank v Solodchenko (No.2) [2012] 1 WLR 350 1, Jackson LJ said (at [51]):
“I shall not attempt to catalogue all those first instance decisions. What they show collectively is that any deliberate and substantial breach of the restraint provisions or the disclosure provisions of a freezing order is a serious matter. Such a breach normally attracts an immediate custodial sentence which is measured in months rather than weeks and may well exceed a year.”
He added at [55]:
“From this review of authority, I derive the following propositions concerning sentence for civil contempt, when such contempt consists of non-compliance with the disclosure...
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