Application for the first defendant to be committed for alleged contempt of court for having failed to make disclosure of documents as required by a court order.
Whipple J said: ‘In this case, the extent to which the Defendants are in continuing breach is in issue. In resolving that factual issue, Mr Milner suggests that it is for the Claimant to seek the Court’s order to allow cross-examination of the First Defendant (as contemnor). He submits as follows in his skeleton: ‘ insofar as [the Claimant] might wish to cross examine [the First Defendant] as to the completeness of his disclosure, that is not permissible without a further application supported by evidence justifying the proposed cross-examination: see JSC BTA Bank v Solodchenko [2011] 1 WLR 906 at [31]-[36]’. Mr Milner says that because no application has been made, no evidence can be adduced from the First Defendant, and the Court cannot therefore hold his silence against him. This is, in effect, to suggest that the Court is fixed with the First Defendant’s affidavit in which he says that he has now complied with the 21 May 2015 Order (and to repeat Mr Milner’s point about the limited ambit of the hearing, addressed and rejected above, in a different way). Mr Milner argued that this was precisely what Proudman J had decided in Solodchenko (No 2) . Mr Gunning disputed these submissions on the basis that they were procedurally incorrect, noting that Solodchenko (No 2) pre-dated CPR 81 which came into force on 1 October 2012 by virtue of the Civil Procedure (Amendment No 2) Rules 2012 [SI 2012/2208]. He drew my attention to CPR 81.28 (2) which provides that the respondent to any committal application is entitled to give oral evidence, and if doing so may be cross-examined; but importantly, also to CPR 81.28(3) which provides that the Court ‘ may require or permit any party or other person (other than the respondent) to give oral evidence at the hearing’. Thus, he said, the respondent cannot be compelled to give oral evidence. It followed that it was not for the Claimant to seek any order to cross-examine, because the alleged contemnor, as respondent to the application, has a right to remain silent; but the Court can draw an adverse inference from silence, as set out in the White Book at CPR 81.28.4 :
‘A person accused of contempt, like the defendant in a criminal trial, has the right to remain silent ( Comet Products UK Ltd v Hawkex Plastics Ltd [1971] 2 QB 67 , CA). It is the duty of the court to ensure that the accused person is made aware of that right and also the risk that adverse inferences may be drawn from his silence (Inplayer Limited v Thorogood [2014] EWCA Civ 1511, November 25, 2014, CA, unrep. , at para.41) . . ‘
I agree with the Claimant’s submissions on this point. The fact that the First Defendant has produced some documents, in purported compliance with the 21 May 2015 Order, does not determine the compliance issue in the First Defendant’s favour; nor does it require the Claimant to make any application for cross-examination. Rather, the First Defendant is on notice of the Claimant’s case that the Defendants have failed to comply with the 21 May 2015 Order, and the Claimant is entitled to continue to advance that case, even in the face of purported compliance by the First Defendant since the date of the application. The burden of proof remains on the Claimant throughout, to the criminal standard, and the Claimant can invite the Court to conclude, on the basis of all the evidence in the case, that the Defendants have not yet complied with the 21 May 2015 Order. If the contemnor chooses to remain silent in the face of that dispute, the Court can draw an adverse inference against him, if the Court considers that to be appropriate and fair, and recalling that silence alone cannot prove guilt. This is not to put the burden of proof on the First Defendant; far from it, the burden remains on the Claimant. Proudman J was dealing with a different situation in Solodchenko (No 2) , where she had already held a fact finding hearing and found Mr Kythreotis to be in contempt, before he subsequently purported to comply with the order; and did not concern the application of rules now clearly now set out in CPR 81.’
And: ‘In light of that conclusion, I hardly need to go on to consider what significance the First Defendant’s decision not to give oral evidence might have in relation to my overall evaluation of the First Defendant’s case. It is very clear that there are substantial gaps in the disclosure provided to date by the First Defendant. But the fact is that the matters covered in the First Defendant’s Fifth and Sixth Affidavits are all matters of fact, within the First Defendant’s knowledge. If those matters were being explained truthfully, I would have expected the First Defendant to give evidence to me in person and submit to cross examination, to demonstrate that he really had done everything possible to comply with the 21 May 2015 Order. He did not do that. The fact that the First Defendant did not give evidence, despite his availability for the hearing, does him no credit at all, and I draw an adverse inference against him. The fact that he then put in a Sixth Affidavit, after the hearing, making a number of assertions, supports that adverse inference. The First Defendant is trying to avoid being cross examined. The obvious, adverse, inference to draw is that he is not telling the truth: he knows he has not disclosed all that he can.”
Whipple J
[2015] EWHC 3327 (QB)
Bailii
England and Wales
Citing:
Cited – Comet Products UK Ltd v Hawkex Plastics CA 1971
The court was asked whether a defendant should be cross-examined on an affidavit sworn by him on an application by the plaintiff to commit him for contempt.
Held: The cross-examination was likely to cover issues in the action and on that basis . .
Cited by:
Cited – Discovery Land Company Llc and Others v Jirehouse and Others ChD 7-Jun-2019
The first claimant had requested the committal of a defendant for his alleged failure to comply with undertakings he had given to the court. He now sought an adjournment saying that he had not been advised of the availability of legal aid, and . .
Lists of cited by and citing cases may be incomplete.
Contempt of Court
Updated: 16 December 2021; Ref: scu.555030