The jurisdiction of England and
Wales is renowned for its provision for the weaker party in financial remedy
proceedings ancillary to a divorce. However, what goes hand in hand with this,
and what is equally important, is the emphasis judges here place on the
importance of proper disclosure. As such, it is one of the fundamental
principles of the family law system that there should be full and frank
disclosure, and it is enshrined in the pre-action protocol (annexed to Practice
Direction 9A of the Family Procedure Rules 2010 (FPR 2010)).
That said, it is all very well for this disclosure
principle to exist in the abstract, but what happens if a party does not comply
with this obligation? A family law practitioner will be all too familiar with
persistent chasing in correspondence for disclosure and the threatening of
court applications, until finally an application for disclosure has to be made
(often with penal notices attached). Sadly even a court order does not always
make a persistent non-discloser disclose. This is when the powers of committal
can come into play.
An order for committal is an
order of last resort, ie it should not be used if a less draconian remedy
would provide a satisfactory solution. In order to apply for committal, an
order must have been breached, and that order must have had a penal note
attached (as specified in FPR 2010, r 37.9(1)). The procedure for applying for
committal is set out in r 37 and PD 37A of the FPR 2010. Also, in May 2013
the President of the Family Division gave guidance on committal applications,
mainly dealing with the presumption that committal hearings should be heard in
Broadly speaking, an application
on Form D11 must be made, with a statement in support, setting out each breach
and each warning. There must also be a notice to the respondent warning of the
consequences of a committal order and the consequences of not attending the
hearing. The application must then be personally served on the respondent, and
they should have 14 days’ notice before the hearing. The burden of proof is on
the applicant, and it must be proved beyond reasonable doubt that the
respondent: (a) has not done what he or she was ordered to do; and (b) that it
was in the respondent’s power to do it.
The reason for this strict
procedure is due to the draconian nature of committal as a sanction, and its
infringement on a person’s human rights. This is recognised in FPR 2010
PD 37A, para 8, which enshrines that, 'In all cases the Convention rights of those involved should
particularly be borne in mind'.
Given the high hurdle that must
be surmounted to achieve a committal order, are they ever used in practice?
This article will look at a few examples in the last few years.
A circuit judge in the Sheffield
County Court sentenced Mr Zuk to 9 months in prison for failing to pay a
lump sum. Mr Zuk appealed, and the sentence was drastically reduced to 6 weeks. This case does not demonstrate that those in contempt can get away with
light sentences, but rather it demonstrates the importance of bearing in mind
how punitive this sanction is, and the constant balance that must be struck
between punishing someone in contempt and protecting their human rights. Mr Zuk
in the county court had been a litigant in person, and there was no evidence to
show that he had had a chance to obtain legal representation. As such, Thorpe
LJ warned that a judge must take 'the
greatest care to ensure that all the safeguards provided by statute are duly
In this well-known case, Mr
Justice Moore sentenced Mr Young to 6 months’ imprisonment (one half of which
was to be served in custody) for failing to provide full and frank disclosure.
However, in order to get to the committal stage, Mrs Young had been before nine
different High Court judges, with a number of different applications. She
commenced her applications in June 2008 and committal was only ordered in
January 2013. Although committal was ultimately ordered, the lengthy and costly
process Mrs Young had to go through might be enough to put off an applicant
dealing with a non-disclosing respondent, even if that respondent should
ultimately be committed. Article continues below...
Although a civil decision, the Court of Appeal dealt with issues of
non-disclosure relating to a divorce. A financial agreement, pursuant to a
divorce, was reached in Michigan, USA. The husband failed to comply with the
terms of the agreement, and the wife obtained a breach of contract judgment
against him. The wife sought to enforce this judgment in England, and freezing
and disclosure orders were made against the husband. The husband failed to
comply, and the wife applied to commit him. The court found him in contempt and
committed him to prison for 24 months. The husband appealed and the Court of
Appeal dismissed this, quoting Jakson LJ in JSC BTA Bank v Solodchenko
 EWCA Civ 1241where he stated that 'where there is a continuing
failure to disclose relevant information, the court should consider imposing a
long sentence, possibly even the maximum of two years, in order to encourage
future cooperation by the contemnor'.
Shepstone  EWCC 6 (Fam)
In a very short judgment, the
husband was found in contempt of court for failing to comply with an order to
produce his Form E. In breach of an order of the court, the respondent had not
produced his Form E two weeks after it was due. He was sentenced to fourteen
days in prison, although this was suspended for 11 days to encourage him to
produce the disclosure in the meantime.
In this case the wife applied in
January 2014 for committal against her husband for breaching an order made in
July 2012, requiring him to transfer to her a motorbike and two cars. Mr
Justice Bodey held that he was satisfied beyond reasonable doubt that the
husband was in contempt for failing to transfer the vehicles to the wife, as
required in the court order. Bodey J committed the husband to prison for two
months, but suspended the sentence for two months to allow the husband to make
a payment of £16,000, the monetary equivalent of the vehicles. The husband had
tried to argue that he should pay this amount into an escrow account, while he
appealed to the Court of Justice of the European Union. However, Bodey J did
not allow this, holding that due to the husband’s litigation history, it would
add to uncertainty and costs for the wife, and there was no guarantee the
husband would make the payment into an escrow account.
Most recently, in August 2014,
Moylan J ordered that Mr Prest was in breach of an order that he should pay Mrs
Prest a lump sum of £17.5m, and annual child maintenance payments of
£300,000. Moylan J sentenced Mr Prest to 4 weeks in prison, albeit suspended
for 3 months in order to encourage him to meet the outstanding payments. In the
seminal case of Prest v Petrodel it
was held that Mr Prest had the funds and the means to pay his wife, thus his
non-payment meant he was in contempt of court.
Comment Although still a measure of last
resort, it seems from these cases that the Family Court is becoming
increasingly willing to commit those in breach of financial remedy orders.
While a careful balance must be struck at all times between eroding the
fundamental human rights of an individual versus appropriate sanctions for
flouting a court order, it seems that the court is striking the right balance.
There is always a risk of a pyrrhic victory when dealing with serial
non-disclosers, however concrete examples of respondents going to prison may encourage others in a similar
position, whether regarding disclosure, payments or otherwise, to comply in the
first place. This deterrent would not only save the courts’ valuable resources,
but would also minimise the stress and uncertainty for the applicant involved. The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.