Peter Richard Andreewitch v Magali Moutreuil
| Jurisdiction | England & Wales |
| Judge | Lord Justice Peter Jackson,Lord Justice Popplewell |
| Judgment Date | 17 March 2020 |
| Neutral Citation | [2020] EWCA Civ 382 |
| Date | 17 March 2020 |
| Docket Number | Case No: B6/2020/0455 |
| Court | Court of Appeal (Civil Division) |
[2020] EWCA Civ 382
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT (FAMILY DIVISION)
Mrs Justice Lieven
FD19F00024
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Peter Jackson
and
Lord Justice Popplewell
Case No: B6/2020/0455
Christopher Sykes (instructed by Janes Solicitors) for the Appellant
James Weale (instructed by LSGA Solicitors) for the Respondent
Hearing date: 11 March 2020
Approved Judgment
The applicant, Peter Andreewitch (‘PA’), seeks permission to appeal from findings of fact made against him in the course of proceedings for alleged contempt of court brought by his former partner, Magali Moutreuil (‘MM’). He complains of procedural irregularity in the committal hearing, namely that as an unrepresented litigant he gave evidence without having been informed of his right to silence.
The nature of the underlying proceedings can be shortly stated. 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 the sole shareholder. On 22 March 2019, a freezing order was made, restraining the parties from disposing of or dealing with the company income or assets except to enable the company to meet its tax or other liabilities. In November 2019, a further order required PA to produce the company bank statements. These showed that he had used the company bank account to make payments amounting to over £25,000 in respect of his personal living expenses and legal fees, some £18,000 of which post-dated the freezing order. PA did not dispute that he had caused the company to make the payments but claimed that they were made in respect of the company's liabilities, namely in paying him a salary, in repaying loans he said he had made to it, and in discharging the company's alleged liability for legal fees.
On 13 January 2020, MM applied for PA's committal for contempt of court. The hearing of the summons took place before Lieven J on 3 February 2020, on which occasion MM was represented by counsel, Mr Weale. PA represented himself, as he had done at a number of previous hearings. The evidence before the judge consisted of two affidavits from MM and an unsigned 12-page document from PA entitled “Notes”, which contained a statement of truth at the end. This was a quite sophisticated document, dealing in some detail with the allegations and raising procedural objections by reference to the relevant rules of court. MM's case was that she was seeking findings in respect of breach of the order but not seeking an order for committal at that hearing; rather she asked for the matter to be adjourned to a further hearing once findings had been made.
At the outset of the hearing the judge carefully explained to PA that he had a right to representation and a right to legal aid. He replied that he preferred that the hearing should continue:
“JUDGE … Mr Andreewitch, you are entitled to legal representation and, indeed, because this is a committal you are entitled to legal aid. Are you aware of that?
PA: Yes, your Ladyship, and I have waived my right to have a legal representative.
JUDGE: All right. So — this is very important as far as I am concerned, I can record that I had informed you that you have a right to legal aid and you have waived your right to legal representation.
PA: But since we are here today and there is no lawyer for me, we would have to adjourn again and —-
JUDGE: We would. Well, it is up to you. You have an absolute right to legal representation because this is a committal, and you have a right to legal aid.
PA: Yes. I — I understand, your Ladyship and I prefer we continue.
JUDGE: All right.”
Mr Weale then raised the question of PA's “Note”:
“COUNSEL: —- you will have seen that Mr Andreewitch submitted a document that he described as a note but the end of it says, “I confirm the contents of my statement are true”. What I would propose to do is to have Mr Andreewitch sworn in on the contents of that note because that sets out, to the extent that there is a discernible defence, his defence and then that would give me the peg on which to hang oral evidence in cross-examination.
JUDGE: Do – do you understand, Mr Andreewitch? You have made this statement – I perfectly understand you are representing yourself – but strictly speaking it is not a sworn statement at the moment. So what I would ask you to do is, when I come back from having read Ms Moutreuil's first witness statement, [to] ask you to go into the witness box and swear to the truth of the contents.”
PA: Yes.”
When the judge returned to court, Mr Weale suggested that PA was sworn in and that he would cross-examine him for about an hour. The judge acceded to this, adding that PA could first highlight anything he wanted from his note. The following exchange eventually took place:
“JUDGE: Mr Andreewitch, why do you not go into the witness box…
PA: Yes, of course…
JUDGE: … because then everything you say in your note I can take as evidence.
PA: Thank you. Thank you.”
PA was then questioned briefly by the judge and cross-examined by Mr Weale for about two hours. The transcript of the cross-examination covers 50 pages.
The judge gave her judgment on 5 February. She narrated the background and the events of the hearing. She carefully satisfied herself that the proceedings had been brought in a regular manner and directed herself in relation to the mental element in contempt. She then recorded the parties submissions before stating her detailed conclusions. In summary, she rejected PA's explanation that each of the categories of payment were ones to which he was entitled as being proper liabilities of the company. She noted the absence of any corroborative documentation. She concluded that his arguments were not credible and found that he was in knowing breach of the order to the criminal standard of proof. He was in her view “making matters up as he went along as excuses for using the money in the account as he wished and then hoping to persuade a court there was no breach of the order.” She observed that he is an intelligent man who has considerable familiarity with the law and with business affairs. He was an unreliable witness who had breached the order in deliberate and full knowledge that he was in breach of it. A draft order provided for the question of sanction to be decided at another imminent hearing and for PA to pay costs of some £8000 on an indemnity basis.
PA, acting in person, filed an appellant's notice on 3 March. He raised seven grounds of appeal, both of a procedural nature and taking issue with the judge's substantive findings. On 9 March I directed that the application be listed for oral hearing with the appeal to follow if permission was granted. In doing so, I noted that this court's initial focus would be upon one particular ground of appeal, namely:
“2. Appearing as a litigant-in-person, the judge ought first to have explained to me that in a committal proceeding I was not obliged to give evidence at all. I was given no such warning. To the contrary, I was asked to give evidence and was immediately cross-examined.”
PA now has the benefit of legal aid and representation by Mr Sykes, who was instructed at short notice and was in a position to deal only with the single identified ground. He makes the simple case that a defendant in criminal proceedings and a respondent in contempt proceedings has a right to remain silent and that this right lies at the heart of the notion of fair procedure. It is an important right and a failure to protect it is not a merely technical default. It is of particular importance where a litigant is unrepresented and it does not matter that the litigant may be relatively able: the safeguard is available to all, as it is in criminal proceedings. In this case, the judge, though evidently concerned to ensure a fair hearing, erred by suggesting to PA that he should give evidence despite there being no obligation upon him to do so. PA then gave evidence that was used to his detriment.
On behalf of MM, Mr Weale notes that there is currently no procedural rule enshrining the right to remain silent. However, the right is implicit in Rule 37.27(2) of the Family Procedure Rules 2010, and CPR 81.28, which provides that at a committal hearing the respondent is entitled to give oral evidence, whether or not s/he has filed or served written evidence and, if doing so, may be cross-examined. He points out that this rule was mentioned in his skeleton argument for the committal hearing. Accordingly, his first submission is that PA was informed of his rights and that there has been no procedural breach in this case. He argues that there is a tension between informing the respondent of the right to be silent and warning him or her of the potential consequences of silence, and that it is important that respondents are not deterred from putting their best case forward.
Mr Weale's second submission is that if there was a procedural defect, it was a technical one and should be waived. He refers to the Practice Directions (FPR PD37 13.2 and CPR PD81 16.2):
“The court may waive any procedural defect in the commencement or conduct of a committal application if satisfied that no injustice has been caused to the respondent by the defect.”
This provision is the subject of commentary in both the Family Court Practice 2019 (the Red Book) and the White Book 2019. The latter contains the following passage at 81.10.2:
“An order for committal for breach of a judgment or order to do or abstain from doing an act is more than a form of execution available to one party to enforce an order against another, because the court itself...
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