Phillips v Symes (No. 3)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill,Lord Justice Longmore |
| Judgment Date | 19 May 2005 |
| Neutral Citation | [2005] EWCA Civ 533,[2005] EWCA Civ 663 |
| Docket Number | Case No: A3/2005/0227 & 0228 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 May 2005 |
[2005] EWCA Civ 533
Lord Justice Pill and
Lord Justice Longmore
Case No: A3/2005/0227 & 0228
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT – CHANCERY DIVISION
MR JUSTICE PETER SMITH
Royal Courts of Justice
Strand, London, WC2A 2LL
MR R TAGER QC & MR A BODNAR (instructed by Messrs Hughmans) for the Appellants
MR A STEINFELD QC, & MR J STEPHENS & MR N MCLARNAN (instructed by Messrs. Lane & Partners) for the Respondents
This is an appeal by Robin James Symes ("the appellant") against an order of Peter Smith J made on 21 January 2005 committing him to prison for 24 months.
The appellant has been committed in the course of litigation which arose out of his former partnership with Mr Christo Michailidis ("Christo"), the brother of the claimant Ms Despina Papadimitriou. The other claimants are the administrators of the estate of Christo. The claimants commenced proceedings against the appellant and others on 27 February 2001 on the ground that there had been a partnership at will between him and Christo which was dissolved by Christo's death on 5 July 1999. Until January 2003, the appellant denied that there was a partnership between him and Christo, who was, he claimed, merely an employee and friend. Following that date, the appellant contended that, while there had been a partnership, the normal principle of the assets being held in common did not apply but that the partnership's assets were held jointly and, on Christo's death, passed to the appellant.
The appellant claimed that the wealth of the partnership was generated by the business of Robin Symes Limited ("RSL") through which he bought and sold objets d'art and antiquities. He claimed that he and Christo owned a Greek island although ownership was held in the names of various offshore companies.
On 27 March 2003, the appellant was declared bankrupt on the petition of his former solicitors. As a result of the appellant's failure to provide disclosure, Peter Smith J struck out his defence and counter-claim on 4 April 2003 and entered judgment in default. Conventional consequential orders were made.
When proceedings had been commenced on 27 February 2001, Timothy Lloyd J made orders appointing receivers and requiring the appellant to answer questions about assets which the claimants asserted were partnership assets or assets of RSL. The judge also made an order establishing an interlocutory regime, later described by Peter Smith J as a tough regime because it policed the sale of the alleged assets of the partnership while the dispute continued. Because of his expertise, it was thought better to allow the appellant to run the business, provided his conduct of the business was regulated. The appellant was required to provide information about the proceeds of any sale of a valuable collection of art deco furniture, known as the Eileen Gray Collection, in the house the appellant had shared with Christo in Chelsea.
Before the proceedings were commenced, the appellant had commenced proceedings with respect to the matters in dispute in Greece. However, Hart J refused to stay the English proceedings. A Greek court has subsequently made a finding that the Eileen Gray furniture belongs to Christo but that is not relevant to the present committal.
It is not necessary for present purposes to describe in detail the many interlocutory applications, hearings and orders. A suspended sentence of one year's imprisonment was imposed by Peter Smith J on 22 May 2003 on the ground, as the judge put it, in the judgment on 21 January 2005, that the appellant had been "caught out on a serious breach of that interlocutory regime." The appellant had given undertakings on 22 May 2003 and the judge added that the appellant had "secured the avoidance of an immediate sentence of imprisonment by giving these undertakings".
Mr Tager QC, for the appellant, accepts that, before Peter Smith J, various serious breaches of court orders and undertakings were admitted by the appellant and those admissions stand. The appellant's submission is that he was deprived of a fair hearing. Reference is made to Article 6 of the European Convention on Human Rights. He does not, however, seek remission to the High Court of the application for committal. It is accepted that the imposition of a term of imprisonment was inevitable. The appropriate way for this court to compensate for the procedural defects before the judge, it is submitted, is to order that the period of imprisonment be reduced substantially and to amend the judge's order in other respects to which I will refer.
As to the remedies available when a breach of the defendant's right to a fair trial is established, Mr Tager relies on the judgment of Lord Bingham of Cornhill in Attorney General's Reference (No 2 of 2001) [2004] 2 AC 72, with which the majority of the Panel agreed, at paragraph 24. The right involved in that case was the right to a timely hearing but the principles apply, in my view, to breach of the right to a fair hearing in contempt proceedings when remission is not sought:
"If, through the action or inaction of a public authority, a criminal charge is not determined at a hearing within a reasonable time, there is necessarily a breach of the defendant's Convention right under Article 6(1). For such breach there must be afforded such remedy as may (section 8(1) [of the Human Rights Act 1998]) be just and proportionate or (in Convention terms) effective just and proportionate… The appropriate remedy will depend on the nature of the breach and all the circumstances. If the breach of the time requirement is established retrospectively after there has been a hearing, the appropriate remedy may be a public acknowledgement of the breach, a reduction in the penalty imposed on a convicted defendant, or the payment of compensation to an acquitted defendant."
It is common ground that contempt proceedings are criminal proceedings for the purposes of Article 6.
The Order and judgment of 21 January 2005
The claimants' application to the Court, which led to the order of 21 January 2005, was based on:
"(1) Mr Symes' failure to comply with Undertaking 8 as embodied in the Order of 22 nd May 2003, namely his failure to reveal the true source of the funds used by Lombardi to discharge RSL's indebtedness to Credit Agricole Indosuez ("CAI"). It will be recalled that Mr Symes has claimed that the funds were a gift to him from a lady called Hersa Hamad Aisa Fdala, whom the Claimants have been wholly unable to trace, and who is, they submit, a mere figment of Mr Symes' imagination. As will be explained below the true source of those funds was in fact the collection of art deco furniture by Eileen Gray ("the Eileen Gray Collection") owned by the Michailidis/Papadimitriou family and stolen by Mr Symes in March 2000, the proceeds subsequently having been laundered through two Liechtenstein trusts or companies and a newly formed BVI company (Lombardi) with a bank account in Gibraltar. The substance of this aspect of the matter lies in Mr Symes' failure to honour Undertaking 8 by revealing the true source of Lombardi's funds, but the reality is that it also goes right back to the commencement of these proceedings and arises in the context of –
• Mr Symes' failure to provide details of what happened to the proceeds of sale of the furniture as required by para 14(b) of the Order of Lloyd J. of 27 th February 2001,
• The untruthful statement in his 2 nd and 5 th Affidavits when he said that the Eileen Gray Collection had been sold for just $4.4m, and
• The similarly untruthful statements in his 13 th and 20 th Affidavits when he said that the monies used to discharge RSL's debt to Credit Agricole had come from Ms Hersa Hamad Aisa Fdala.
(2) In the Summer and Autumn of 2003 Mr Symes sold to Sheikh Al-Thani for $3 million a statue of the Pharaoh Akhenaten ("the Akhenaten") despite that statue being –
• The property of RSL and a Relevant Chattel, and
• The sale thus being in breach of the Interlocutory Regime first put in place by Hart J on 7 th March 2001, and still in force.
(3) Again in breach of the Interlocutory Regime it had become apparent prior to August 2003 that Mr Symes had engaged in wholesale breaches of the Interlocutory Regime by failing to disclose the existence of a number of objects in New York and by subsequently moving them from one location to another."
The Court order provided:
AND IT APPEARING accordingly to the satisfaction of the Court that the 1 st Defendant –
a) has been guilty of contempt of Court in that in his 8 th, 13 th, 20 th and 25 th Affidavits he made false statements which he verified as being true that the true source of funds used to discharge a facility granted to the 2 nd Defendant [RSL] by Credit Agricole Indosuez was money provided by way of gift by a lady whom he identified as one Hersa Hamad Aisa Fdala without having an honest belief in the truth of those statements.
b) has been guilty of contempt of Court in that he failed to reveal the true source of the funds referred to at sub-paragraph (a) above as required by undertaking 8 of the undertakings given to the Court on his behalf on 22 May 2003 and set out in the schedule to the Order of that date and is accordingly in breach of the condition pursuant to which the sentence of one year's imprisonment imposed on that date for the further contempt of Court referred to in that Order was suspended, and
c) has been guilty of a further contempt of Court in causing or permitting the sale of a statue of the...
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