Mr Riyadh Nasser Alokaili v Mr Baljinder Chohan (a.k.a. Bally Chohan)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Leech |
| Judgment Date | 29 July 2022 |
| Neutral Citation | [2022] EWHC 2043 (Ch) |
| Docket Number | BL-2019-001328 |
| Court | Chancery Division |
| Year | 2022 |
[2022] EWHC 2043 (Ch)
Mr Justice Leech
BL-2019-001328
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
Mr Mark Simeon Jones (instructed by Amanah Solicitors) appeared on behalf of the Claimants.
Mr James Ramsden QC (instructed by Astraea Group Limited) appeared on behalf of the Second Defendant.
Hearing date: 26 July 2022
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic
I. Background
On 11 May 2022 His Honour Judge Keyser QC (sitting as a Judge of the High Court) made an order for committal against the Second Defendant, Mr Chohan, sentencing him to an immediate custodial sentence of 32 weeks imprisonment for contempt of Court, the sentence to commence on 11 July 2022. I will refer to the order dated 11 May 2022 as the “ Order”.
On 16 May 2022 the judge handed down a reserved judgment in which he gave his reasons for finding the Second Defendant in contempt: see [2022] EWHC 1126 (Ch). He recorded in [10] that following an application for default judgment, the Claimants obtained the following judgment against the Defendants:
“The application for default judgment was eventually heard on 6 February 2020 by Deputy Master Arkush, who gave a number of judgments for the respective claimants against the various defendants. The total sum of the judgments entered against Mr Chohan personally was £1,645,707.33, excluding accrued interest. The total sums of the judgments entered against the fifth and sixth defendants were respectively £721,801.23 and £923,906.10, excluding accrued interest. The judgments were not formally entered by consent, but the defendants' solicitors had signified by email their agreement to the entry of the judgments.”
The judge continued with the history and then recorded that on 22 September 2021 the Deputy Master made five orders indorsed with a penal notice requiring the Second Defendant to attend before the Master for questioning about the means of the judgment debtors specifying classes of documents which the Second Defendant was required to disclose: see [19]. He also recorded that on 9 November 2021 Master Clark made a further order for disclosure indorsed with a penal notice: see [20]. The Claimants applied to commit the Second Defendant and the judge found that he had deliberately failed to comply with his disclosure obligations and was deliberately attempting to prevent the Claimants from obtaining the information which they sought with a view to enforcing their judgments: see [47].
In relation to the sentence, the Judge took account of various considerations before imposing a custodial sentence of 32 weeks: see [54]. He also stated that he had not found any sufficient reason to suspend the sentence. However, he gave the following explanation for the time at which the sentence was to commence at [56]:
“However, as I indicated at the hearing when pronouncing the sentence, I direct that the term of custody shall commence on 11 July 2022. This is because I have made a further order for focused and specific disclosure, with which Mr Chohan is to comply by 10 June 2022. Compliance will be more likely if Mr Chohan is not in prison in the interim. I have directed that Mr Chohan attend at court to surrender to custody at 10.30 a.m. on 11 July 2022, when there will be a further mention in this matter. The court can then consider whether Mr Chohan's compliance with the further disclosure order I have made ought properly to be treated as sufficient to purge his contempt and, if so, to what degree. Any decision on that occasion will be entirely a matter for the judge who hears the mention. It might, however, be helpful if I indicate, as I did when pronouncing sentence, that, although the sentence I have passed is single and undivided, I had in mind periods of 20 weeks for the punitive element and 12 weeks for the coercive element.”
Paragraphs 1 and 2 of the Order which the judge made dealt with the sentence. Paragraphs 3 to 5 contained the orders for disclosure which the judge referred to in his judgment. I will set out those paragraphs in full when I come to consider compliance later in this judgment. For present purposes, it is enough to note that the judge ordered the Second Defendant to serve an affidavit providing the relevant information by 10 June 2022.
On 11 July 2022 the “mention”, as the judge described it, was listed before me. Unfortunately, I was unable to hear it because I came down with a variant of COVID 19 and by Order dated 11 July 2022 I extended the time at which the sentence was to commence until 26 July 2022, when the mention was re-listed before me. I heard evidence and argument on Tuesday 26 July 2022 and I indicated that I would hand down a reserved judgment today, Friday 29 July 2022. I also extended the time at which the sentence was to commence from 26 July 2022 to 29 July.
I should record my thanks to Mr Mark Simeon Jones, who appeared for the Claimants, and his solicitor, Mr Wakil Ahmed, who appears at the hand down of the judgment today, for their flexibility and patience. I also extend the same thanks to Mr James Ramsden QC and his solicitors, Astraea Group Ltd, who appeared for the Second Defendant and express my regret to the Second Defendant that the disposal of this matter had to be delayed. Finally, I should record that Mr Ramsden and Astraea Group Ltd did not appear for the Second Defendant before the judge on 11 May 2022.
On 10 June 2022 the Second Defendant made and served the affidavit which the judge had ordered and he exhibited documents which ran to 10 lever arch files. In the affidavit he claimed to have complied with the Order. On 4 July 2022 Mr Ahmed made a witness statement in which he contested the Second Defendant's evidence that he had complied with the Order. On 8 July 2022 the Second Defendant made an affidavit in reply. He also gave evidence about his personal circumstances and the consequences for him and his family of a custodial sentence.
Mr Ahmed exhibited to his witness statement dated 4 July 2022 a report prepared by Mr Mohammed Miajee, an expert accountant, dated 5 July 2022 in which he had carried out an analysis of the financial statements and related documents which the Second Defendant had produced and exhibited to his first affidavit. Mr Ramsden made a number of criticisms of Mr Miajee's report and submitted that it did not comply with CPR Part 35. But he did not submit that it was inadmissible or that I could not rely on its contents. I therefore permitted the Claimants to rely on it.
Mr Ramsden tendered the Second Defendant for cross-examination and he gave oral evidence before me. He confirmed the contents of his affidavits and in examination in chief Mr Ramsden put a number of the criticisms to him which Mr Ahmed had raised in his evidence and Mr Miajee had made in his report. He was then cross-examined by Mr Jones.
II. Approach
CPR Part 81.10(1) provides that a defendant against whom a committal order has been made may apply to discharge it. CPR Part 81.10(2) provides that such an application must be made by Application Notice under CPR Part 23 and CPR Part 81.10(3) provides that the court hearing the application shall consider all the circumstances and make such order under the law as it thinks fit. Mr Ramsden drew my attention to the decision of His Honour Judge Simon Barker QC in Re Ravinder Balli [2011] EWHC 1865 (Ch) in which he set out the principles relating an application by a contemnor to purge contempt. He stated this at [12] to [17]:
“12. A committal order is an order of last resort; in the context of civil proceedings, it is also draconian. It should only be made where, having regard to all the circumstances, it is absolutely necessary. 13. By way of temper, a contemnor has an unqualified right to apply to the court to purge his/her contempt and seek an order for immediate release. This is not a ‘once only’ right, rather it is a continuing right running throughout the duration of the sentence. 14. The origins of this right appear to be twofold
(1) being rooted in the quasi-religious concepts of purification, expiation and atonement ( Harris v Harris [2002] Fam 253, Thorpe LJ at paragraph 21); and, (2) prior to the coming into force of s. 14 of the Contempt of Court Act 1981, being the means by which release from prison was secured following committal to prison for an unspecified period under common law (the ‘price’ of release being, as part of the purging, compliance with a mandatory order or a credible promise not to disobey a prohibitive order in the future). 15. With these considerations in mind, a contemnor's right to apply to purge his/her contempt became enshrined in a procedural rule, currently RSC Ord 52 Rule 8(1), now in the CPR Sch 1, which provides: “The court may, on the application of any person committed to prison for any contempt of court, discharge him”. 16. There are only three possible outcomes of an application to purge and obtain release: (1) immediate release, (2) deferred release at a stated future date, or (3) refusal of the application ( Harris, Thorpe LJ at paragraph 21, after citing at paragraph 17 and following Delaney v Delaney [1996] QB 387, Sir Thomas Bingham MR at pages 400–1). 17. Although the court may impose a suspended order of committal (see RSC Ord. 52 Rule 7(1)), on an application to purge...
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Hollie Louise Totton v Mark David Totton (as beneficiary and executor of the Estate of Hazel Margaret Totton, Deceased)
...to divulge any further details about those dealings because it would, or might, incriminate him. 6 In a case called Alokaili v Chohan [2022] EWHC 2043 (Ch) HHJ Keyser QC had made an order for committal but also ordered that it was not to commence until a specific date in the future. He als......