Orders in family proceedings – Enforcement

Young v Young: Family Division (Mr Justice Moor): 16 January 2013

The wife sought financial support from the husband following their separation. It was the wife’s case that the husband was a very wealthy man, worth up to £400m. She contended that he had hidden his entire resources to avoid his legitimate obligations towards her and their children. The husband claimed that he was penniless and bankrupt. In October 2008, a judge ordered the husband to respond to the wife's questionnaire by 7 November and attached a penal notice.

In March 2009, the husband was ordered to provide the documentation sought in the questionnaire. In June, the husband was committed to prison for six months for contempt of both orders (the June 2009 order). The term of imprisonment was suspended for 92 days on terms that the husband provide the answers and documents sought by 7 September. In December 2009, a judge heard an application for maintenance pending suit and ordered the husband to pay the wife's rent, the children's school fees and the sum of £27,500 per month.

In November 2012, the husband was ordered to produce various information contained in paragraphs 5 and 7 of the order (the November 2012 order). The wife made two applications. The first was to commit the husband to prison for contempt of court of the November 2012 order. The second was to activate the June 2009 order. The court decided that the correct approach was to deal solely with the first application, although the earlier breach would remain relevant to sentence.

The principal issue was whether contempt had been proved to the criminal standard. The husband purported to answer both paragraphs of the November 2012 order on the day before the instant hearing. In mitigation, the husband contended that he had become ill and had been an inpatient in hospital from 21 December 2012 to 10 January 2013. He also complained about alleged harassment and possible criminal offences committed against him by private investigators instructed by the wife, which had made him unwell.

The court ruled: the court was satisfied beyond reasonable doubt that, in certain very important respects, the husband had not complied with the November 2012 order. In the circumstances, both contempts were so serious that a fine could not be justified. A suspended sentence of committal could not be justified either. The court rejected the husband’s ill health as a reason for not passing an immediate custodial sentence.

Further, any such harassment as alleged by the husband was not a legitimate defence to failure to comply with a court order. The court would pass the shortest sentence of imprisonment which matched the seriousness of the husband’s contempt, while taking into account the mitigating factors raised by the husband. As the court was sentencing the husband for, in effect, the same contempt, the sentence ought to be the same as that imposed in June 2009. There would not however be double jeopardy and the court would not be activating the previous suspended committal (see [25], [26], [39], [40], [43]-[45] of the judgment). The husband would be sentenced to six months’ imprisonment (see [46] of the judgment).

Edward Fitzgerald QC, Joe Middleton and James Bailey (instructed by Winckworth Sherwood LLP) for the wife; the husband appeared in person.