In May 2016 court reports revealed a further example of the consequences of a divorcing spouse failing to comply with Family court orders (Trott v Trott & Anor [2016] EWFC B35).
Family Court orders
The Family Court has the power to attach a penal notice to an order. In the context of financial remedy proceedings this could be an order requiring a spouse to disclosure information, preventing the disposal of assets or it may be an order requiring one party to make financial provision to their spouse.
A penal notice warns a party that they may be sent to prison if they do not comply with the order. When a party fails to comply with a court order which has a penal notice attached the other party may apply to court for a committal order.
If the court is satisfied beyond all reasonable doubt that the offending party has breached the order (is in contempt of court), the judge has the power to impose a fine or prison sentence (which can be suspended). Parties will however only ever serve half of such a prison sentence.
Committal orders are a remedy of last resort. The purpose of a committal order is twofold; to impose a punishment and to induce compliance with the court’s order.
Trott v Trott
Andrew Trott recently found himself sentenced to prison after he failed to comply with two court orders in ‘acrimonious’ court proceedings with his first wife Sharon Trott. His second wife Lisa Trott, who found herself subject to orders of the court after her husband failed to comply, also received a prison sentence for contempt of court but the judge suspended her sentence.
On 7 October 2014 Mr Trott had been ordered not to dispose of or deal with a number of matrimonial assets including a Mercedes Sportshome. He was also required to immediately pay the net proceeds of sale of a caravan (£8,000) to a solicitor for safekeeping. The purpose of such orders was to safeguard assets until such time as they were divided with Sharon Trott.
On 30 April 2015 the court made a further order preventing Mr Trott from disposing of the proceeds of sale of his shares in a taxi business known as City Taxis. This order was later varied by the court to enable him to use £8,000 of the £100,000 that he had received from the sale. However he failed to preserve any of the £100,000. Instead he invested it in other business ventures which enabled him to continue to make payments in respect of the mortgage on the former matrimonial home and to support his new family with Lisa Trott.
After Mr Trott failed to provide the court with information about his finances, an order was made in December 2015 requiring Lisa Trott to provide bank statements and documentation about the purchase of a property so that the funds could be traced. Lisa Trott received the orders but ignored the content.
Sharon Trott applied to the court for her former husband and his new wife to be found in contempt of court. The application came before Her Honour Judge Hudson in April 2016.
Andrew and Lisa Trott accepted that they had breached the orders but put forward arguments in mitigation.
Mr Trott claimed that he and Sharon Trott had since agreed that the Mercedes should be sold and the money given to their son to enable him to purchase a car. Sharon Trott accepted that she had agreed to this but stated that he did not comply with the conditions of that agreement. Mr Trott also argued that he had put the money from the sale of the caravan to the use of his and Sharon’s adult children with her agreement. She disagreed with this claim.
With regards to the most serious breach, failing to preserve the proceeds of sale of his shares, Mr Trott sought to argue that the money had not been disposed of as such and would be available for division with Sharon Trott. However Her Honour Judge Hudson noted that in December 2015 he conceded in court that he was unable to retrieve the funds and since that time had taken not steps to rectify the situation.
On behalf of Lisa Trott it was argued that without legal advice she had failed to appreciate the seriousness of her failure to comply or the importance of her doing so. By the time of the contempt application hearing she had provided the required information.
Lisa Trott was sentenced to 14 days in custody. However this was suspended taking in to account the admission of her breaches, subsequence compliance and the fact that she was the full time carer of a child.
Mr Trott was sentenced to 28 days for each of the first two breaches. In relation to use of the proceeds of sale of the shares he was given a 3 month sentence. The judge decided that this sentence reflected the fact that it was a further breach, it involved a higher amount of money and the circumstances of the breach in which he disregarded the direction of the court. “In the light of the gravity of the circumstances of the three breaches seen together and their repeated nature” the judge was unwilling to suspend the sentences. They will run concurrently.
So how did these sentences compare with other recently reported cases?
Zuk v Zuk [2012] EWCA Civ 1871
In 2011 Mr Zuk found himself held in contempt of court and imprisoned for a period of 9 months after he failed to pay a lump sum of £15,000 to his former wife. When the original order for payment had been made the court was satisfied that he had the means to pay. The judge attached a penal notice after Mr Zuk informed the court that he had no intention of complying with the court’s order.
This is an interesting case as the committal proceedings were ‘peppered with error from beginning to end’. On appeal Thorpe LJ found that the judge who had decided that Mr Zuk (who was unrepresented at the time) was in contempt of court, and who had imposed the 9 month sentence, had incorrectly applied the law. The judge had mistakenly believed that she had powers under s14 of the Contempt of Court Act 1981 which would have enabled her to impose a sentence of up to 24 months. In fact the court only had the power to impose a maximum term of 6 weeks under the Debtors Act 1869. By the time Mr Zuk’s appeal was heard he had unjustly served 4 ½ months in prison.
The appeal judgment makes interesting reading as it lists 8 further failings on the part of the committal hearing judge, thus emphasising how the “greatest care” must be taken by the court and legal representatives to ensure that committal applications are dealt with correctly.
Young v Young [2013] EWHC 34 (Fam)
In January 2013, Mr Young faced a second application by his wife for a committal order. This was a high profile and long running case. Mrs Young contended that Mr Young was worth hundreds of millions of pounds and that he was hiding his assets to avoid his financial obligations towards her and their children. Mr Young argued that he had lost his considerable wealth as a result of the “implosion of his business empire leaving nothing but debts”.
On this particular application the court decided that Mr Young had failed to comply with a court order from November 2012 which required him to produce various information. A penal notice had been attached to the November 2012 order in light of his noncompliance with previous orders and given that an earlier committal order had been made against him in June 2009 (he had received a suspended 6 months sentence on that occasion).
In January 2013 Mr Young purported to provide the required information the day before the committal hearing. He argued in mitigation that he had been ill in December and January and for a period had been an inpatient in hospital.
Mr Justice Moor was satisfied beyond reasonable doubt that Mr Young was in contempt of court by failing to comply with the November 2012 order. In light of this second finding of contempt it was decided that neither a fine nor a further suspended sentence could be justified. Mr Young’s ill health was not accepted as a reason for delaying a custodial sentence and he was sentenced to 6 months in prison.
Thursfield v Thursfield [2013] EWCA Civ 840
Mr Thursfield sought to appeal a committal order sentencing him to 24 months in prison following his failure to comply with a disclosure order which was made alongside a freezing order. There were a number of aggravating factors in this case which led the committal judge, HHJ Purle QC, to impose the maximum sentence available.
By way of background there was long running litigation in the US State of Michigan between Mr and Mrs Thursfield resulting in her securing judgment in her favour for the sum of US$5.8million. Mr Thursfield was appealing part of that award and a decision in the USA was pending. Mrs Thursfield sought to enforce the judgment in England and obtained freezing and disclosure orders dated 6 December 2011. The English court was satisfied that such orders did not prejudice the husband pending the outcome of his appeal in the USA.
Mr Thursfield failed to comply with the disclosure order and his wife applied for a committal order. The judge was content that Mr Thursfield was in contempt of court and, in light of his refusal to attend court (he remained outside the jurisdiction) and his continued noncompliance, imposed the maximum sentence of 24 months. The judge stated that 12 months was attributable to the punitive element of committal and the other 12 months to the coercive aspect of such an order.
The Court of Appeal dismissed Mr Thursfield’s appeal against the length of the sentence. They found that the sentence was not ‘manifestly excessive’ as the husband claimed given the facts of the case. The appeal court was highly critical of Mr Thursfield’s continued noncompliance and the fact that he continued to evade the jurisdiction of the court (and therefore his sentence) by remaining outside of England and Wales.
Such cases do serve as important reminders of the court’s powers and willingness to impose serious sanctions. One suspects Mr Trott, who it appears was not legally represented prior the committal hearing, may have taken a very different approach to the court proceedings had he (and his second wife) fully appreciated the consequences of their actions.
If you require any further guidance or advice please call 020 7631 4141 and ask for a member of the Family & Divorce team.
