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England and Wales Family Court Decisions (other Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> Trott v Trott & Anor [2016] EWFC B35 (29 April 2016)
URL: http://www.bailii.org/ew/cases/EWFC/OJ/2016/B35.html
Cite as: [2016] EWFC B35
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SITTING AT NEWCASTLE-UPON-TYNE
The Quayside Newcastle-upon-Tyne NE1 3LA |
||
B e f o r e :
____________________
| SHARON TROTT | Applicant Wife | |
| -v- | ||
| ANDREW TROTT | Respondent Husband | |
| -and- | ||
| LISA TROTT | Co-Respondent |
____________________
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Counsel for the Respondent Husband and the Co-Respondent: MR O'SULLIVAN
____________________
Crown Copyright ©
- This case comes before me today for the hearing of applications to commit Andrew Trott and Lisa Trott to prison for breaching orders made within financial remedy proceedings brought by Sharon Trott against Andrew Trott. These applications arise out of highly acrimonious financial remedy proceedings following the breakdown of the long marriage between Sharon Trott and Andrew Trott. Lisa Trott is Andrew Trott's new wife.
- The applications to commit have come before the court today for the third time. The case came before me on 11th December 2015 when the application was to commit only Andrew Trott to prison. He attended the hearing in person. There were deficiencies in the material before the court to establish the relevant breaches and significant failures in terms of compliance with PD27A, so that the material before the court could not be considered in the time available. As a result, I adjourned the hearing. The case was next listed before Her Honour Judge Moir on 4th March 2016. The application to commit Lisa Trott had then been issued and was also listed for hearing that day. Andrew Trott and Lisa Trott both attended court and indicated a wish to seek representation. The hearing was therefore adjourned for them to do so.
- They duly obtained representation from an experienced family solicitor. He prepared statements on their behalf explaining the circumstances in which they each admit breaching orders of the court. Andrew Trott and Lisa Trott have been represented at this hearing by Mr O'Sullivan. He addressed me in mitigation on behalf of each of them. Sharon Trott is represented at this hearing by Miss Brissenden.
- The breaches are all admitted. In those circumstances I will deal in brief with the background which has given rise to the application and then address the circumstances of the breaches and the mitigating matters which were put before the court by Mr O'Sullivan.
- The first order which relates to Andrew Trott is dated 7th October 2014. Deputy District Judge Baird made an order pursuant to section 37 of the Matrimonial Causes Act 1973 preventing Andrew Trott disposing of or dealing with a number of the matrimonial assets, including a Mercedes Sportshome (registration number provided). He was also required forthwith to pay the net proceeds of sale of a caravan of £8,000 to the solicitor. A penal notice was attached to the order, which was made in his presence. The second order which relates to Andrew Trott is the order of District Judge Searl dated 30th April 2015 where a further order was made pursuant to section 37 of the 1973 Act which prevented him from disposing of monies from the sale of his shares in a taxi business known as City Taxis.
- The order concerning Lisa Trott was made by District Judge Hardy on 7th December 2015 and related to disclosure of bank statements and evidence of the purchase of property at Flamingo Land. The order was served in accordance with the district judge's direction.
- I should make it plain that Mr O'Sullivan has accepted on behalf of Andrew Trott and Lisa Trott that all procedural matters have been appropriately and properly complied with for the purposes of this committal hearing. The statements of Andrew Trott and Lisa Trott were provided as a result of their wish to explain the circumstances in which they admit they breached the orders.
- The circumstances of the breaches can be dealt with shortly. I will deal with them in sequence and then deal with the mitigating matters and the sentencing in respect of Andrew Trott and Lisa Trott separately.
- The first breach admitted by Andrew Trott relates to the sale of the Mercedes motor home. Andrew Trott accepts that the vehicle was sold in breach of the order. It was, however, sold in unusual circumstances. Despite the court order preventing him disposing of or dealing with it (an order made on the application of Sharon Trott), an agreement which was reached between Andrew Trott and Sharon Trott that this vehicle would be sold to allow funds to be released for the purchase of another vehicle for their adult son. It is clear from the statement provided by Sharon Trott that she agreed to the vehicle being sold, although she says she agreed to it on the basis of conditions as to the use of the proceeds of sale which Andrew Trott did not comply with. Andrew Trott argues that the breach must be seen in a different context because of Sharon Trott's agreement that he would sell the vehicle.
- The second breach admitted by Andrew Trott relates to his failure to pay £8,000 to the solicitor. He agrees that he failed to do so but, once again, argues that the money was put to the use of the parties' adult children, he says with the agreement of Sharon Trott. She does not accept this.
- The third breach admitted by Andrew Trott relates to the sale of his shares in City Taxis. The shares were sold for £100,000. The initial order preventing him disposing of the entire sum was later varied to allow him the use of £8,000. Andrew Trott accepts that he did not preserve any of the £100,000 he received from the sale of his shares, as the order required him to do. He says that he has invested the money in other business ventures, which has enabled him to continue to make payments in respect of the mortgage on the former matrimonial home and to maintain his new family. He argues that the money has not been disposed of as such and will be available for consideration in the course of the financial remedy proceedings. He nonetheless accepts through Mr O'Sullivan that he is in breach of the order.
- These breaches occurred many months ago - indeed the committal application was issued in July 2015 and has taken time to finally be heard. At the hearing before me on December 2015, Andrew Trott told me he wasn't able to repay the missing money. Although he maintains the assets remain available for distribution in the financial remedy proceedings, and despite his knowledge of this committal application and its potential consequences, he has not taken steps to rectify the position.
- The orders made against Lisa Trott were made as the result of shortcomings in the disclosure provided by Andrew Trott and the inability to trace where funds have gone. Orders were made providing for Lisa Trott to disclose bank statements with a view to the tracing of funds, and also disclosure of documentation relating to what was understood to be a purchase of property at Flamingo Land. She accepts that following service of those orders upon her, she did not comply with them. She says that must be seen against the background of the highly acrimonious proceedings in which there has been, she says, overt hostility towards her from Sharon Trott including damage to her own property. That has been reported to the police, but no action has been taken in relation to it. Nonetheless Sharon Trott accepts that she simply failed to comply with orders for disclosure.
- She also failed to attend a hearing as directed (the hearing before me on 11th December 2015). She did attend the hearing before Her Honour Judge Moir on 4th March 2016 and produced some bank statements. The statement she has now provided has what appears to be the full documentation she was directed to produce attached to it (including documentation relating to the Flamingo Land property).
- So those are the breaches and the circumstances in which they come before the court. Mr O'Sullivan made his submissions in mitigation, dealing with Lisa Trott's circumstances first, as will I. Her situation is more straightforward. The orders which form the subject matter of this application were orders for her to produce documentation. They were orders designed to assist the court in ascertaining the true extent of the parties' assets and what had happened to them. Her failure to do so constitutes a breach of a court order; a contempt of court. She recognises it as such.
- Lisa Trott has admitted her breach. She has now provided the material which was directed. She said her earlier dealing of the matter without the assistance of legal representation resulted in her failing to understand the potential implications of her actions and indeed the importance of her compliance with court orders. Mr O'Sullivan submits that the breach does not cross the custody threshold and that, if it does, her circumstances can properly be reflected by any order of committal being suspended. Her statement records that she is a full-time mother to her young daughter, the child of her relationship with Andrew Trott. She argues that as a relevant factor for the court's consideration when determining the appropriate penalty for her breach.
- In the case of Andrew Trott, Mr O'Sullivan highlights the circumstances of the breach in relation to the Mercedes Sportshome and what he identifies as the less significant breaches in relation to this and the failure to pay over the £8,00 sale proceeds from the caravan. These are less significant breaches in the following circumstances: they are the first breaches of court orders and the court will consider them as such; they are of a lesser magnitude, both in monetary terms (the value of the two items is significantly lower than the value of the sale proceeds of the shares) and the circumstances in which - at the very least - the Mercedes Sportshome was sold with the agreement of Sharon Trott.
- In relation to the final breach (disposing or dealing with the proceeds of sale of his shares in City Taxis), Mr O'Sullivan concedes it is of a much more serious magnitude in terms of the amount involved and the overall circumstances of the breach. It is also a further breach. Although the earlier breaches had not been brought before the court, the fact of the earlier breach had been raised in correspondence.
- Mr O'Sullivan highlights the early admission which was made by Andrew Trott. There are recitals to court orders dating back to certainly July 2015 where the court recorded an acceptance on the part of Andrew Trott that he was in breach of the earlier injunction orders. I recorded in my order on 11th December 2015 that Andrew Trott accepted he was in contempt of court and sought to explain the circumstances by way of mitigation. Mr O'Sullivan argues that in those circumstances, although the breaches cross the custody threshold, the court could suspend the custodial sentence which is likely to follow. Mr O'Sullivan submits that, on Andrew Trott's account, the funds will be available for distribution in due course. Mr O'Sullivan further submits that Andrew Trott has now engaged in the proceedings and is cooperating with them, so a suspended order would provide the necessary encouragement for his future compliance. Mr O'Sullivan has highlighted the impact that any immediate custodial sentence will have on Andrew Trott, removing him from his new family and his ability to work.
- I have taken all of these factors into account when I have considered the appropriate penalty in respect of Lisa Trott and Andrew Trott. Any breach of a court order is a serious matter; a contempt of court. I have highlighted in my exchanges with Mr O'Sullivan the qualitative differences I see in the breaches on the part of Lisa Trott and those of Andrew Trott. In the case of Andrew Trott, I have considered the more serious nature of the final breach in terms of its repeat nature and the magnitude of the sum involved.
- In the case of both Lisa and Andrew Trott, I have considered the reported cases which have addressed the range of sentences which may be imposed in such circumstances. There is little judicial authority which is of assistance. Every case turns on its own facts. I am mindful of the approach of the court to draw back from imposing an immediate custodial sentence in appropriate cases, particularly where the court is dealing with a first breach. In sentencing for contempt, the court is both punishing the contemnor for the breach and seeking to ensure compliance with future orders. The court must determine the appropriate punishment or penalty. If a custodial sentence is warranted, the court must then consider whether that sentence can be suspended.
- In the case of Lisa Trott, I have concluded that her breach does cross the custody threshold. The course of conduct from her throughout the earlier stages of proceedings demonstrated a complete disregard for the orders of the court and for the requirement for her to comply with these court proceedings. Having taken account of the nature of the breach and the circumstances of it, I have concluded that a short term of custody is appropriate in relation to the breach for which she falls to be sentenced. I sentence her to a period of 14 days in custody. I have, however, concluded that this is a sentence which is properly suspended.
- The reasons for doing so relate to the circumstances in which Lisa Trott has now admitted her breach and complied with the court's orders and taking account of her own circumstances. The period of suspension will be a period of 12 months and it will be upon her compliance with any further directions which may be made. If she fails to comply with any further orders which are made against her and is subject to a further committal application within that period of time, the court is likely to activate that period of suspended committal.
- Andrew Trott recognises that his situation is more serious. I have concluded that each of the breaches crosses the custody threshold. He was clearly aware from the penal notices attached to the orders and, indeed, his presence at the first of the hearings when the order was made that any breach by him of these orders was liable to result in a committal application and his committal to prison for breaching the order. He chose to do so. In the circumstances I accept he chose to do so with the agreement of Sharon Trott in selling the Mercedes motorhome.
- He nonetheless breached the court order in two separate regards by selling the motorhome and failing to pay the proceeds of sale of the caravan of £8,000 to his solicitors. I have concluded that those, having crossed the custody threshold, taking account of the circumstances in which those breaches took place, the amount of money involved and the overall circumstances, that a period of committal of 28 days in respect of each is appropriate.
- The final breach, the failure to preserve the capital he received from the sale of City Taxis, is the most serious breach. That is recognised as such. I have already highlighted the aggravating feature, the fact it was a further breach of a court order, the amount involved and the circumstances in which Andrew Trott disregarded the direction of the court. It will be for another court to determine the extent to which those resources remain available. That is a matter which will be determined by the district judge in due course. Taking account of all the circumstances of the nature and extent of that breach, I have concluded that the appropriate penalty is a period of three months imprisonment.
- I have considered whether these sentences can be suspended. I may have been persuaded that the first and second breaches, considered on their own, could have been. I must, however, consider the three breaches, both individually and the totality of the conduct. The third breach, in my judgment, places this case in a different category. In the light of the gravity of the circumstances of the three breaches seen together and their repeat nature, I have concluded that, together, they are not sentences which can be suspended. I therefore impose an overall sentence of three months, those sentences each to run concurrently.
HER HONOUR JUDGE HUDSON: