Jailed for breaching injunctions: three cases

Aisling O'Dwyer

Three recent decisions have brought back into the spotlight the importance of complying with injunctive orders and the very serious repercussions that can follow repeated breaches.

Kimyani and others v Sandhu [2017] EWHC 1302 (Ch)

Facts:

Kimyani and others v Sandhu concerned a family dispute. The applicants, three siblings of Ms Sandhu, had been granted a freezing injunction in April 2017 requiring her to disclose any assets worldwide in excess of £1,000. Ms Sandhu had also been ordered to swear and serve an affidavit providing a full and detailed explanation of her interest in a disputed property.

Ms Sandhu had not complied with the disclosure order by the time the application for committal came to court in May 2017. She made repeated conflicting statements in front of the court, Mr Justice Newry describing her evidence as “false and contradictory”.

Ms Sandhu had committed repeated breaches of the disclosure order. She had the chance to redeem herself by finally providing an “accurate and frank account of events”, but intentionally failed to do so.

Decision:

Newey J emphasised that deliberate breaches of freezing orders are very serious, considering that the case required an immediate custodial sentence. He sentenced M. Sandhu to 12 months in prison.

Following JSC BTA Bank v Solodchenko & Ors (No. 2) [2011] EWCA Civ 1241, Newey J referred to punishment and compliance as the dual purposes of committal orders. In light of this, Newey J stressed that Ms Sandhu would be able to ask the court to reduce that sentence by up to six months if she complied fully and promptly with the order against her.

OCS Group v Dadi [2017] EWHC 1727 (Ch)

Facts:

In OCS Group UK Ltd v Dadi and others the respondent, a former employee of the claimant, had breached an interim injunction aimed at preserving evidence pending trial.

There was evidence before the court that the usual penal notice was attached on the front page of the order stating: “IF YOU DISOBEY THIS ORDER YOU MAY BE HELD TO BE IN CONTEMPT OF COURT AND MAY HAVE YOUR ASSETS SEIZED” and the potential personal consequences of a breach were explained to Mr. Dadi when the order was served.

Despite this, Mr Dadi committed four breaches of the confidential order. Mr Dadi twice breached the confidentiality provision, deleted emails from his phone and, most seriously, deleted 8,000 emails from his online webmail account.

Upon taking legal advice, Mr Dadi “made a clean breast of it”, owning up to the breaches and apologising for his conduct. It was Mr Dadi’s solicitor who informed the court of the breaches. The claimant acknowledged Mr Dadi cooperated with it to try to retrieve the deleted emails, although ultimately it was not possible to do so.

Decision:

Recognising that imprisonment is “always a punishment of last resort”, Mrs Justice Rose in the High Court nevertheless concluded that imprisonment was warranted to mark the court’s “strong disapproval” of Mr Dadi’s conduct, and to act as a “warning to others” tempted to “flout” the court’s orders.

Rose J gave credit to Mr Dadi for his actions once he had taken legal advice. However, it was clear he had “no one to blame but himself”. Furthermore, because it had not been possible to retrieve the emails deleted from Mr Dadi’s webmail account there had been a significant prejudicial effect on the Claimant.

Although prison sentences are unusual in the case of employment disputes, the serious consequences of Mr Dadi’s actions resulted in his being sentenced to six weeks imprisonment (the minimum term) for each of the four breaches, to run concurrently.

A v B [2017] EWHC 2116 (Comm)

Facts:

In A v B, the court was required to review an order the defendant, Mr H, a Chinese national with very limited English. Mr H had been found in contempt for failure to make disclosures required by a freezing order and sentenced to 18 months in prison. The sentencing judge had advised Mr H that if he complied with the disclosure requirements there would be substantial remission. Since then, Mr H had fully complied with the disclosure order, the proceedings had ended and the arbitration award and costs had been settled in full.

Decision:

Knowles J held that the information that Mr H had no assets was useful and should have been disclosed. However the court was satisfied Mr H’s conduct did not involve a conscious or tactical plan not to comply with the freezing order. The language barrier and lack of communication prevented Mr. H from being able to understand what was required of him after the committal hearing. It was clear that key communications had not reached him, or not in translated form.

Between the two court dates, Mr H fully complied with the disclosure obligations imposed on him and he gained no advantage by the non-disclosure. The court considered the sanction of prison unnecessary. Mr H’s contempt was purged

This case shows that courts are sympathetic to defendants who have valid reasons for failing to comply with an order (in this case the most important reason was the language barrier), provided that they ultimately take sufficient steps to purge their contempt.

Comment:

The courts consider two factors in contempt procedures:

  1. whether a defendant’s conduct in breach of an injunctive order is so outrageous as to require punishment in the form of imprisonment; and
  2. whether a defendant is taking steps in order to purge his/her contempt and comply with the terms of the initial order.

There are often multiple opportunities for defendants to comply with court orders, and as explained in Kimyani v Sandhu, it is good practice for judges to make it clear what proportion of the sentence can be reduced by subsequent remedial conduct.

These three cases also highlight the role culpability can play in sentencing decisions. A v B can be distinguished from OCS Group v Dadi and Kimyani v Sandhu because the defendant complied with the order at the first opportunity to do so, whereas the latter cases involved intentional, sometimes repeated, breaches of the injunctive orders. Similarly, Ms Sandhu’s repeated deliberate breaches and perjury justified the higher sentence compared to Mr Dadi.

These cases also serve as a reminder that courts take contempt very seriously. The penal notice attached to court orders is not an idle threat. OCS Group v Dadi in particular shows that courts do not shy away from punishing defendants even in areas, such as employment law, where prison sentences are seldom imposed. The rationale, as emphasised in that case is simple, “The system will not work if people think they can ignore court orders and destroy evidence. Those who do so can expect terms of imprisonment”.

Kimyani and others v Sandhu [2017] EWHC 1302 (Ch)

OCS Group v Dadi [2017] EWHC 1727 (Ch)

A v B [2017] EWHC 2116 (Comm)

Post By Aisling O'Dwyer (1 Posts)

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