BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TRUST AND PROBATE LIST (ChD)
Fetter Lane London EC4A 1NL |
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B e f o r e :
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GABRIELA SCHWARTZ |
Claimant |
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- and - |
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(1) VGV (UK) LIMITED (2) PROMOCIONES E INVERSIONES SUDAMERICANAS S.A. (3) PERUEXPRES SOCIEDAD DE RESPONSIBILIDAD LIMITADA (4) HOLDING GRUPO TV CABLE S.A. LIMITED (5) CLEMENTE JOSE VIVANCO SALVADOR |
Defendants |
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Unit 1 Blenheim Court, Beaufort Business Park, Bristol, BS32 4NE
Web: www.epiqglobal.com/en-gb/ Email: civil@epiqglobal.co.uk
(Official Shorthand Writers to the Court)
MR RICHARD COLBEY (instructed via Direct Access) appeared on behalf of the Fifth Defendant
The First Defendant was not represented
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Crown Copyright ©
MR JUSTICE ROTH:
General principles
"7. In the Court of Appeal's decision in Liverpool Victoria Insurance Co Ltd v Khan [2019] EWCA Civ 392 at [58] they gave the following guidance (this is the judgment of the Court):
'It is therefore appropriate for the court dealing with this form of contempt to consider (as a criminal court would do) the culpability of the contemnor and the harm caused, intended or likely to be caused by the contempt of court. Having in that way determined the seriousness of the case, the court must consider whether a fine would be a sufficient penalty. If it would, committal to prison cannot be justified, even if the contemnor's means are so limited that the amount of the fine must be modest.'
8. In a further decision of the Court of Appeal, Financial Conduct Authority v McKendrick [2019] EWCA Civ 524, having referred to the Liverpool Victoria case, which was a case of contempt of court involving a false statement verified by a statement of truth, the Court said at [39]:
'We consider that a similar approach should be adopted when – as in this case – a court is sentencing for contempt of court of the kind which involves one or more breaches of an order of the court. The court should first consider (as a criminal court would do) the culpability of the contemnor and the harm caused, intended or likely to be caused by the breach of the order. In this regard, aggravating or mitigating factors which are likely to arise for consideration will often include some of those identified by Popplewell J in the Asia Islamic Trade Finance Fund case. Having considered the seriousness of the case, the court must consider whether a fine would be a sufficient penalty. If it would, committal to prison cannot be justified, even if the contemnor's means are so limited that the amount of the fine must be modest.'"
9. The first question, therefore, is the degree of culpability and the degree of harm, those being matters which go to the seriousness of the contempt. The Court of Appeal continue in FCA v McKendrick at [40]:
'Breach of a court order is always serious, because it undermines the administration of justice. We therefore agree with the observations of Jackson LJ in the Solodchenko case as to the inherent seriousness of a breach of a court order, and as to the likelihood that nothing other than a prison sentence will suffice to punish such a serious contempt of court.'"
"'First, whether the claimant has been prejudiced by virtue of the contempt and whether the prejudice is capable of remedy. Second, the extent to which the contemnor has acted under pressure. Third, whether the breach of the order was deliberate or unintentional. Fourth, the degree of culpability. Fifth, whether the contemnor has been placed in breach of the order by reason of the conduct of others. Sixth, whether the contemnor appreciates the seriousness of the deliberate breach. Seventh, whether the contemnor has co-operated.'
22. That list was expanded by Lewison J, as he then was, in Aspect Capital Limited v Christensen [2010] EWHC 744 (Ch) in which he said at [52] that he would add to this list of factors the following:
'(1) Whether the contemnor has admitted his contempt and has entered the equivalent of a guilty plea. By analogy with sentencing in criminal cases, the earlier the admission is made, the more credit is entitled to be given …'
The second factor concerns a Newton hearing and is not relevant.
"'(3) Whether the contemnor has made a sincere apology for his contempt;
(4) Whether the contemnor has been frank with the court in admitting his contempt;
(5) In a criminal court the sentencer would also take into account a defendant's character and relevant antecedents. I think these are relevant to sentence for a civil contempt too.'
23. And finally in a case called Asia Islamic Trade Finance Fund Ltd v Drum Risk Management Ltd [2015] EWHC 3748 (Comm), Popplewell J, as he then was, added his own factor to the Crystal Mews list as follows:
'Whether there has been any acceptance of responsibility, any apology, any remorse or any reasonable excuse put forward.'"
Recent developments
Sanctions
VGV UK
Mr Vivanco
Ruling on costs