Marie-Therese Elisabeth Helene Hohenberg Bailey v Anthony John Bailey
| Jurisdiction | England & Wales |
| Judge | Mr Justice Peel |
| Judgment Date | 04 February 2022 |
| Neutral Citation | [2022] EWFC 5 |
| Docket Number | Case No: ZC16D00176 |
| Court | Family Court |
[2022] EWFC 5
Mr Justice Peel
Case No: ZC16D00176
IN THE FAMILY COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Georgina Howitt (instructed by Ribet Myles LLP) for the Applicant
Chris Barnes and Harry Langford (instructed by Bindmans LLP) for the First Respondent
The Second and Third Respondents did not attend and were not represented
Hearing dates: 31 January and 1 February 2022
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.
Before me are two committal applications brought by Marie-Therese Hohenberg Bailey (“W”) against Anthony Bailey OBE (“H”) for alleged breaches of (i) a financial remedy order made by HHJ Gibbons on 23 April 2021, and (ii) two separate passport orders made by Cobb J on 25 May 2021, referred to by all as “the first passport order” and “the second passport order”. In the event, W did not proceed with her application arising out of the second passport order and I will say no more about it.
Additionally, W brings committal applications against, separately, the second respondent, Cyril Woods, and the third respondent, Farley Rentschler, for alleged breaches of the financial remedy order. I should say at the outset that they were, respectively, the third and fourth respondents at the hearing before HHJ Gibbons, but for these committal applications stand as the second and third respondents.
Attendance and representation
W is represented by counsel who is acting pro bono, as are her solicitors. She attended the hearing before me.
H is represented by counsel. He is publicly funded, as is his statutory entitlement. He did not attend the hearing before me, despite an order made by Sir Jonathan Cohen expressly requiring him to do so. Counsel told me that he is understood to be in Portugal. No application for an adjournment was made to enable him to attend in person. The question of whether he should be permitted to attend remotely, notwithstanding previous court orders mandating attendance in person rather than by video link, was properly raised by counsel for W, although not advocated for by her. Counsel for H did not apply for him to be entitled to attend remotely. H's legal team were, however, during the hearing able to make telephone contact with him.
The second and third respondents, who live overseas, have not attended, and are not represented.
I gave careful thought as to whether I should proceed with the contempt applications against the second and third respondents in their absence. I had in mind that:
i) Both were parties to the substantive financial remedy proceedings, but did not attend or participate. They have not engaged with the proceedings in this country.
ii) The committal applications against them, dated 7 June 2021, were served on each of them by email on 12 July 2021 pursuant to the order of Mostyn J on 9 June 2021. Service in this manner is permissible in the light of Wilmot v Maughan [2017] EWCA Civ 1668, applied by Lieven J in Emoni v Atabo [2020] EWHC 3322. They have similarly been served with notice of hearing dates. They are, I am quite sure, well aware of the committal applications against them, and the hearing before me. They have chosen not to participate.
Cobb J was faced with a similar situation in Sanchez v Pawell Oboz and Jolant Oboz [2015] EWHC 235 (Fam). At paragraph 4 he said this:
“It will be an unusual, but by no means exceptional, course to proceed to determine a committal application in the absence of a respondent. This is so because:
i) Committal proceedings are essentially criminal in nature, even if not classified in our national law as such (see Benham v United Kingdom (1996) 22 EHRR 293 at [56], Ravnsborg v. Sweden (1994), Series A no. 283-B); in a criminal context, proceeding with a trial in the absence of the accused is a course which will be followed only with great caution, and with close regard to the fairness of the proceedings (see R v Jones (Anthony) [2003] 1 AC 1, approving the checklist provided in R v Jones; R v Purvis [2001] QB 862);
ii) Findings of fact are required before any penalty can be considered in committal proceedings; the presumption of innocence applies (Article 6(2) ECHR). The tribunal of fact is generally likely to be at a disadvantage in determining the relevant facts in the absence of a party;
iii) The penalty of imprisonment for a proven breach of an order is one of the most significant powers of a judge exercising the civil/family jurisdiction; the respondent faces the real prospect of a deprivation of liberty;
iv) By virtue of the quasi-criminal nature of committal process, Article 6(1) and Article 6(3) ECHR are actively engaged (see Re K (Contact: Committal Order) [2002] EWCA Civ 1559, [2003] 1 FLR 277 and Begum v Anam [2004] EWCA Civ 578); Article 6(1) entitles the respondent to a “a fair and public hearing”; that hearing is to be “within a reasonable time”;
v) Article 6(3) specifically provides for someone in the position of an alleged contemnor “to defend himself in person or through legal assistance of his own choosing”, though this is not an absolute right in the sense of “entitling someone necessarily to indefinite offers of legal assistance if they behave so unreasonably as to make it impossible for the funders to continue sensibly to provide legal assistance” (per Mance LJ (as he then was) in Re K (Contact: Committal Order) (reference above)). The respondent is also entitled to “have adequate time and the facilities for the preparation of his defence” (Article 6(3)(b)).”
At paragraph 5 he added:
“As neither respondent has attended this hearing, and in view of Mr. Gration's application to proceed in their absence, I have paid careful attention to the factors identified in [4] above, and, adapting the guidance from R v Jones; R v Purvis, have considered with care the following specific issues:
i) Whether the respondents have been served with the relevant documents, including the notice of this hearing;
ii) Whether the respondents have had sufficient notice to enable them to prepare for the hearing;
iii) Whether any reason has been advanced for their non-appearance;
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);
v) Whether an adjournment for would be likely to secure the attendance of the respondents, or at least facilitate their representation;
vi) The extent of the disadvantage to the respondents in not being able to present their account of events;
vii) Whether undue prejudice would be caused to the applicant by any delay;
viii) Whether undue prejudice would be caused to the forensic process if the application was to proceed in the absence of the respondents;
ix) The terms of the ‘overriding objective’ (rule 1.1 FPR 2010), including the obligation on the court to deal with the case ‘justly’, including doing so “expeditiously and fairly” (r.1.1(2)), and taking “any … step or make any… order for the purposes of … furthering the overriding objective” (r.4.1(3)(o)).
I am satisfied that the second and third respondents have been properly served and are fully aware of these proceedings. They have simply declined to engage with the court process, as was also the case with the substantive financial remedy proceedings. They have had ample notice. They have not (separately or together) applied for an adjournment to enable them to secure legal representation. They have given no reason for their non-attendance. It seems to me that they are largely indifferent to the outcome. I weigh in the balance the gravity of the applications brought against them. However, I am comfortably satisfied that in the circumstances it is fair and just to proceed in their absence.
Admissibility of the substantive judgment .
On behalf of H, it was submitted that the substantive judgment of HHJ Gibbons, which was given effect to by the order of 23 April 2021, is not admissible. It is argued that it falls foul of the rule in Hollington v Hewthorn [1943] KB 587. The skeleton argument on behalf of H states that “the judgment is not admissible”, and that the rule establishes “that findings of fact by earlier tribunals are inadmissible in subsequent civil proceedings because they constitute opinion evidence”. The essence of the submission is that findings made to the civil standard in the financial remedy proceedings cannot carry any probative value when determining a contempt application to the criminal standard, and therefore should be excluded.
As it happened, I received the bundle, and read the judgment, before I was aware of this issue, flagged up as it was for the first time in Counsels' Note. It rather fell away during the hearing. Nevertheless, it seems to me to be appropriate to make some comments about this far-reaching submission.
The rule was reviewed by the Court of Appeal in Hoyle v Rogers [2014] EWCA 257, per Christopher Clarke LJ:
“The rule in Hollington v Hewthorn
32. In this case the Court of Appeal held that the conviction of the defendant in the magistrates' court for careless driving was inadmissible in a subsequent action in which the plaintiff and his son (who had since died) claimed damages on the ground of the defendant's negligent driving. The rule extends so as to render factual findings made by judges in civil cases inadmissible in subsequent proceedings (unless the party against whom the finding is sought to be deployed is bound by it by...
To continue reading
Request your trial
-
Re W-A (children: foreign conviction)
...proceedings: issue estoppel), Re [1997] Fam 117, [1997] 1 FCR 477, [1997] 3 WLR 1, [1997] 2 All ER 29, [1997] 1 FLR 285. Bailey v Bailey[2022] EWFC 5 (4 February 2022, Benyatov v Credit Suisse Securities (Europe) Limited[2022] EWHC 135 (QB), [2022] 4 WLR 54. Caylon v Michailaidis[2009] UKPC......
-
W-A (Children: Foreign Conviction)
...issue in family proceedings are a passing remark in the financial remedy case of Richardson-Ruhan and the decision in Bailey v Bailey [2022] EWFC 5, where Peel J had no difficulty in rejecting a submission that the rule in Hollington v Hewthorn requires a court hearing committal proceedings......
-
Zhao Long v Endushantum Investments Company Ltd, Lunan Pharmaceutical Group Corporation v Zhao Long
...[150]. 45 [1943] KB 587. 46 [2014] EWCA Civ 257, [2015] QB 265. See also Calyon v Michailaidis [2009] UKPC 34, 2007–09 Gib LR 321. 47 [2022] EWFC 5. 48 1973 c. 49 Crypto Open Patent Alliance v Wright [2021] EWHC 3440 (Ch). 50 Phipson on Evidence (20 th Ed, 2021) at 43–77. 51 [2017] EW......
-
Simon Kevin Frain (Aka Simon Kevin Reeves, Aka Bill Reeves) v Louise Michelle Reeves
...in the substantive contempt proceedings and that evidence can be called by Louise to rebut any weight it may have (see Bailey v Bailey [2022] EWFC 5, per Peel J at [17(vii), (ix) and 34 In addition, however, she submits that where (i) Mehta 1 refers to the Judgment only as “background”; and......