England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		11 January 2005

Mr Justice Richards:

1. These are applications by the claimant, LTE Scientific Ltd ("LTE") to commit the defendants, Mr and Mrs Thomas, for contempt of court.
2. The background is that Mr Thomas sold his business to LTE in 2001 on terms that included restrictive covenants. LTE alleges that he has been working for competitors in breach of one of those covenants. He accepts that he has been working as a consultant for a competing company called Astell Scientific Ltd ("Astell") in prima facie breach of the covenant, but he disputes the validity of the covenant. LTE also alleges that Mr Thomas worked for another competing company, called ESTS (GB) UK Limited ("ESTS"). He denies this. There are· other claims which it is unnecessary to recite.
3. In the course of proceedings relating to the alleged breaches of covenant, LTE obtained an interim injunction against Mr Thomas and disclosure orders against both Mr and Mrs Thomas. The matters before me are concerned only with the disclosure orders.
4. The most convenient way to deal with the issues that arise is to set out first the general factual framework, then to consider certain specific areas of factual dispute, before turning to the legal implications of the facts as I find them.

General factual framework

5. On Tuesday 14 September 2004 LTE applied without notice for a search order against Mr Thomas. This was refused by McCombe J. But the following day, Wednesday 15 September, the Judge granted a disclosure order against Mr Thomas. The order included a penal notice in the usual form:

"IF YOU DAVID ANTHONY THOMAS DISOBEY THIS ORDER YOU MAYBE HELD TO BE IN CONTEMPT OF COURT AND MAY BE IMPRISONED, FINED OR HAVE YOUR ASSETS SEIZED.

ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS THE RESPONDENT TO BREACH THE TERMS OF THIS ORDER MAY ALSO BE HELD TO BE IN CONTEMPT OF COURT AND MAY BE IMPRISONED, FINED OR HAVE THEIR ASSETS SEIZED."

6. Relevant terms of the order included the following:

"4. This order must be complied with by -

(a) the Respondent;

...

(c) if the Respondent is an individual, any other person having responsible control of the items to be disclosed.

DELIVERY UP OF COMPUTERS, LAPTOPS AND ELECTRONIC STORAGE DEVICES.

...

6. The Respondent must immediately deliver up any computers, laptops and/or electronic storage devices located or situated at the premises listed in Schedule A ("the premises") or otherwise in his possession or control to the Supervising Solicitor.

7. The Respondent must permit the Supervising Solicitor to take the computers, laptops and/or electronic storage devices away and deliver them to the IT specialist for no longer than is necessary in order to take a forensic copy, being for the avoidance of doubt a mirror image, bit for bit copy and not merely a ghost copy, of all documents contained in the hard drives of computers, laptops and/or electronic storage devices located or situated at the premises. The copying must take place in the presence of the Supervising Solicitor. All reasonable steps shall be taken by the IT specialist to ensure that no damage is done to any computer or data.

DELIVERY UP OF ARTICLES/DOCUMENTS

9. The Respondent must immediately hand over to the Applicant's solicitors any of the items listed at Schedule B, which are in his possession or under his control ("the listed items

....

PROVISION OF INFORMATION

12. The Respondent must immediately inform the Applicant's Solicitors (in the presence of the Supervising Solicitor) so far as he is aware:

(a) where all the listed items are;

(b) the name and address of everyone who has supplied him, or offered to supply him, with listed items;

(c) the name and address of everyone to whom he has supplied, or offered to supply, listed items; and

(d) full details of the dates and quantities of every such supply and offer.

...

PROHIBITED ACTS

14. Except for the purpose of obtaining legal advice, the Respondent must not directly or indirectly inform anyone of these proceedings or of the contents of this order, or warn anyone that proceedings have been or may be brought against him by the Applicant until 4.30 pm on the return date or further order of the court."

7. The "Supervising Solicitor" was defined in paragraph 5 as Mr Nicholas Carter, who gave the usual undertakings to the court, including an undertaking to "offer to explain to the person served with the order its meaning and effect fairly and in everyday language" and an undertaking to retain the items in the safe keeping of his firm until the court directed otherwise. The "Applicant's Solicitors" were defined as Mr Stephen Goodrham and Miss Louise Costello of Gateley Waring, the claimant's solicitors in these proceedings. The premises listed in Schedule A were the defendants' home, which is at Caldecott, near Market Harborough in Leicestershire. The listed items in Schedule B included documents relating to contracts or financial transactions with ESTS or Astell.
8. Paragraph 17 provided that the order might only be served between 9.30 am and 5.00 pm on a weekday and that it had to be served by the Supervising Solicitor.
9. At about 4.55 pm on 15 September, Mr Carter, together with Mr Goodrham and Miss Costello, attended at the defendants' home. Mrs Thomas was at home, Mr Thomas was not. Mr Carter handed over to Mrs Thomas the disclosure order and accompanying documents and explained to her the nature of the requirements imposed by the order, including the requirement to hand over computers and laptops and to hand over certain documents. He told Mrs Thomas that there were terms with which she might well be required to comply even in the absence of her husband, and drew her attention to paragraph 4( c). She was given an opportunity to take legal advice, but it took some time before her solicitor got back to her. During this time Mr Goodrham and Miss Costello had been waiting outside in the car. At about 7.00 pm Mr Carter brought them back to the house and there was a conversation outside the house with Mrs Thomas.
10. Mr Carter invited Mrs Thomas in the light of paragraph 12 of the order to inform the claimant's solicitors of the matters set out in that paragraph. Mrs Thomas said that she could not produce what she did not have and that there were no documents in the house that fell within any of the categories listed; nor did she have any knowledge of the whereabouts of any of the documents. Mr Carter then asked her to explain her position in relation to any computers. She said that her husband had a laptop with him in his car which he used for business purposes and that the only computers in the house were her personal computer, which she used for the purpose of emails, and the children's computers which they used for playing games. She said that she was not prepared to hand over those computers. Mr Goodrham asked if she was aware of the penal notice, to which she replied "I suppose I will be locked up ... ".
11. Mr Carter and the claimant's solicitors then left the defendants' home at about 7.15 pm. Immediately afterwards, by a telephone application, LTE obtained a further order from McCombe J in these terms:

"1. The time for service and execution of the disclosure order and interim injunction ordered by McCombe J on 15^th September is extended to 9.00 pm on 15^th September 2004.

2. After 9.00 pm and no later than 11.00 pm on 15^th September 2004 personal service of the disclosure order and interim injunction may still be effected upon the Respondent outside the Respondent's premises [i.e. their home].

3. Service may otherwise be effected by posting the disclosure order and interim injunction through the letter box of the Respondent's premises."

12. Mr Carter and the claimant's solicitors waited outside the defendants' home until about 9.30 pm in order to effect personal service on Mr Thomas if he returned home. Thereafter a process server was instructed to wait outside. Mr Thomas did not, however, return home that night. The claimant's case is that he stayed away deliberately in order to avoid service of the order upon him. His case is that he visited his parents that evening (his mother was dying of cancer) and stayed overnight at their house because, by the time he learnt of the order, he had been drinking wine and it was unsafe for him to drive home. That is an issue considered in detail below. In considering it I shall also need to consider the evidence concerning communications by telephone between Mr and Mrs Thomas and between Mr Thomas and Mr Pennock (chairman of Astell) in the late afternoon and evening of 15 September.
13. The following morning, Thursday 16 September, Mr Thomas went straight from his parents' home to the premises of Astell. Again I shall consider his movements further when dealing with the issue of alleged evasion of service.
14. The same morning, at about 10.00 am, the process server served the disclosure order through the letterbox of the defendant's home in accordance with paragraph 3 of McCombe J's second order of 15 September.
15. In the course of 16 September LTE obtained a further disclosure order from McCombe J, this time directed specifically at Mrs Thomas (who was therefore "the Respondent" referred to in the order). Material provisions of this second order, which was endorsed with a penal notice, were:

"PROVISION OF INFORMATION

4. The Respondent must immediately inform the Applicant's Solicitors of the following matters:

(1) the whereabouts of her husband David Anthony Thomas including the address at which he is situated;

(2) the mobile telephone number of David Anthony Thomas;

(3) the make, model and registration number of the vehicle or vehicles driven by David Anthony Thomas; and

(4) the location of any computer, laptop and/or electronic storage device at the premises listed in Schedule A ('the premises') and/or in the possession or control of David Anthony Thomas or of the Respondent including for the avoidance of doubt the personal computers used by the Respondent and/or her children at the premises and the laptop used for business by David Anthony Thomas.

DELIVERY UP

6. The Respondent must immediately hand over to Nicholas Carter ... any personal computer, laptop and/or electronic storage device at the premises and/or in her possession or control, including for the avoidance of doubt the personal computers used by the Respondent and/or her children, to enable David Brooke, an IT specialist ... , to take a forensic copy of the hard drives of the personal computers, laptops and/or electronic storage devices pursuant to the order for disclosure against David Anthony Thomas dated 15^th September 2004."

16. In addition, paragraph 5 of the second disclosure order permitted the addition of Mrs Thomas as respondent to the proceedings against Mr Thomas and as respondent to the first disclosure order.
17. The second disclosure order was served on Mrs Thomas at her home soon after 6.00 pm on 16 September. Mr Carter drew attention to the parts of the order which obliged her to hand over any computers on the premises and to disclose information regarding her husband's whereabouts. Mrs Thomas said that an application was going to be made to set aside the original order. She tried to take legal advice but was unable to contact her solicitors.
18. As she would have to make a decision without the benefit of legal advice, Mr Carter asked whether, if the claimant's solicitors consented, Mrs Thomas would be prepared to release the computers and any information she had concerning her husband's whereabouts on the basis that Mr Carter would not release this to the claimant's solicitors until the application to set aside had been heard. She indicated that she would be prepared to deal with the matter in that way. When Mr Carter went out to put it to Miss Costello, however, Miss Costello indicated (after consulting Mr Goodrham) that the course suggested would be unacceptable to the claimant. The view taken was that Mrs Thomas could and should comply with the terms of the order as granted by the judge.
19. Mr Carter therefore returned to the house. Mrs Thomas then handed over a personal computer. She answered the questions required by paragraph 4 of the second disclosure order, save that she said she was not prepared to divulge her husband's mobile phone number. She said that she did not know where his business laptop was.
20. The computer handed over by Mrs Thomas was in fact the children's computer. She did not hand over her own computer (which was the home computer used by both defendants) although it was in the house. It appears to have been assumed by Mr Carter and the claimant's solicitors at the time that she was handing over her own computer. What she said may have fostered that impression, but the evidence does not establish that she deliberately misled them. It should have been apparent in any event from the various conversations with Mrs Thomas that the computer being handed over was not the only computer in the house.
21. Mr Thomas had not returned home during the day of 16 September and was not present during the above exchanges. It will, however, be necessary to consider in due course what was said by him to his wife by telephone while the solicitors were present at the house and what was passed on by his wife to them.
22. Mr Thomas's evidence is that he returned home at about 8.45 pm, after the solicitors had left. He went out to the pub in the village for a meal and spent the rest of the evening there.
23. The next day, Friday 17 September, the claimant's solicitors returned to the defendants' home at 9.30 am in a further attempt to execute the first disclosure order against Mr Thomas. He had already left the house. Mrs Thomas was present and informed the solicitors that he was at the High Court preparing for an application to set aside the orders obtained against them. In fact he attended a conference in London with his solicitor and counsel. In the course of the afternoon his solicitor, Mr Twining, informed the claimant's solicitors by telephone that Mr Thomas was willing to make arrangements to accept personal service of any documentation and that the disclosure required by the first disclosure order would be provided the following Monday, 20 September. When asked about Mr Thomas's business laptop, Mr Twining said that his instructions were that Mr Thomas did not have a laptop. The issue concerning the laptop is given separate consideration below.
24. Mr Thomas returned home on the Friday evening. He says that he discovered on the Saturday morning, and reported to his legal representatives, that it was the children's computer, not his wife's computer, that had been delivered up by his wife on the Thursday evening and that his wife's computer was in fact still in the house. He then used a "scratch" programme to remove files from his wife's computer. His account is that the computer contained files in the following categories: (a) invoices for Astell, which were not confidential; (b) some Astell drawings, which were commercially sensitive; and (c) commercially sensitive preparatory work for another project which he is hoping to launch in 2005 once the covenants have expired. He says that he removed items in categories (b) and (c). He had pre-existing back-up copies of the files in category (b), but not of those in category (c). The circumstances concerning the deletion of files are considered further below.
25. On Monday 20 September LTE sought and obtained an order from Simon J dispensing with personal service on Mr Thomas. Mr Thomas states that he had instructed his solicitors to agree to such an order, though that information had not got through at the time when the order was made. The order was in these terms:

"The requirement of personal service upon the First Defendant of copies of the orders of McCombe J dated 15^th September 2004 is dispensed with under RSC 45.7(7)."

26. On the same day Mr Thomas made a disclosure affidavit pursuant to the first disclosure order. In that affidavit he admitted what he had done by way of deletion of files on his wife's computer over the weekend. He did not refer to the existence of back-up copies of some of the deleted files. His solicitors agreed to hold the additional computer pending the return date. It was handed over to the claimant's solicitors on 28 September.
27. Subsequently, as a result of questions asked by the claimant's solicitors, Mr Thomas admitted the existence of back-up copies of some of the deleted files and those backup copies were handed over to the claimant's solicitors.
28. The applications to commit were issued on 18 October. They came on for hearing before me on 17 November. The two-day time estimate was insufficient for the whole hearing but it was possible to complete the evidence within that time. Closing submissions were made at an adjourned hearing in December, following which I reserved my judgment.

Specific factual issues

29. There are various important issues of factual dispute between the parties, in particular concerning Mr Thomas. For that reason I heard oral evidence on behalf of the claimant from Mr Carter (the supervising solicitor) and Miss Costello and Mr Goodrham (the claimant's solicitors); and on behalf of the defendants from Mr and Mr Thomas and Mr Pennock (chairman of Astell).
30. I found the claimants' witnesses to be credible and reliable. The same is true of Mrs Thomas, whose oral testimony was rightly described by counsel for LTE as "refreshingly candid". I also regarded Mr Pennock as a witness of truth, though only a limited number of matters were within his personal knowledge. I regret to say that Mr Thomas, on the other hand, was not an impressive witness. It is to his credit that in the course of his evidence he made voluntary disclosure of various important documents (albeit under threat of a disclosure application). But the way in which he dealt with questioning, including his changes in account in the light of the documents disclosed during his evidence, led me to the view that he was not being wholly truthful with the court and that his evidence needed to be treated with considerable caution. I cannot ascribe the weaknesses in his evidence to mere confusion, as Mr Bard invited me to do.

Mr Thomas: evasion of service

31. The claimant contends that Mr Thomas, having learned of the existence of the disclosure order on Wednesday 15 September, took deliberate steps to evade service of the order upon him. This is said to be the reason why he did not return home on the night of Wednesday 15 September or the following morning and why he returned home on Thursday 16 September only after the solicitors had left. Mr Thomas denies that he sought at any time to evade service of the order.
32. The account originally given by Mr Thomas in relation to Wednesday 15 September is that he went after work to his parents' home for the evening in order to visit his mother, who had terminal cancer. He arrived there between 7.00 and 7.30 pm. In the event he decided to stay there for the night because he had some wine and felt that it would not be safe for him to drive home: this was the reason why he did not return home that night. While he was at his parents' home he received a telephone call on his mobile phone from his wife about the solicitors' visit to their home with the disclosure order. He learnt from that conversation that the order required her to deliver things up, but he had only sketchy details of the order. He told his wife - as an expression of preference, and nothing more - that he did not want any computers handed over unless he was there. But he did not believe that the order required him to do anything until he was served with it, and it seemed to him that the matter could wait. He did, however, immediately notify Mr Pennock of Astell, who said that he would arrange for Mr Thomas to obtain legal advice at Astell's premises the following day. The following morning Mr Thomas therefore went straight from his parents' home to Astell's premises.
33. Following an overnight adjournment during Mr Thomas's evidence, he disclosed telephone records relating to his mobile phone and the land line at his home. Those records show that a call lasting 1 minute 9 seconds was made from home to Mr Thomas's mobile phone at 5.25 pm on 15 September; a further, very short call to his mobile phone was made at 7.14 pm; and there was a series of calls to his mobile phone after 8.00 pm. Mr Thomas sought at first to explain away the call at 5.25 pm on the basis that Mrs Thomas had at that time left a message for him, which he only picked up after 7.00 pm when he was at his parents' home. That explanation was inherently implausible and did not fit with the telephone records as a whole. By the end of his cross-examination Mr Thomas appeared to accept that he must in fact have received a call from his wife at 5.25 pm in which he learned of the order, though he still denied any recollection of that call. He also continued to deny that his decision not to return home that night was the result of the information he had received about the order and was with a view to avoiding service of the order upon him.
34. Mrs Thomas originally supported her husband's account that she first telephoned him after the solicitors had left and that he told her that he had been drinking wine and it was not safe to drive home. In her oral evidence, however, she effectively accepted that this was mistaken and that she had spoken to her husband by telephone at 5.25 pm, soon after the solicitors' arrival at her home and service of the documents upon her.
35. In my judgment the claimant's case that Mr Thomas deliberately evaded service of the first disclosure order on him on the Wednesday night is well founded: I use "evasion" and "avoidance" interchangeably in this context because I do not consider there to be a material difference between them for this purpose. I make the following specific findings on the evidence I have heard.
36. Mrs Thomas telephoned her husband on his mobile phone at 5.25 pm on 15 September, after the solicitors had arrived with the order at their home and during the interval allowed to her to obtain legal advice. Mr Thomas took the call on his hands free kit while driving in his car from work to visit his parents at their home - I am prepared to accept that he was intending to visit his parents in any event that evening. During the call he learned of the existence and general nature of the order, including the requirement to deliver up computers. He told his wife that he did not want the computers handed over unless he was there. Although Mr Thomas described this as no more than the expression of a preference, it seems to me that he was telling his wife not to hand over the computers unless he was there. It can properly be described as an "instruction" to her not to hand them over in his absence, and in my view that is how she understood and treated it.
37. Mr Thomas then went to his parents' home. Having arrived there he contacted Mr Pennock, who said that he would arrange for Mr Thomas to receive legal advice at Astell's premises the following morning. Mr Thomas took a deliberate decision not to return to his own home in the meantime, but to stay overnight at his parents' home and to go straight to Astell's premises in the morning, in order to avoid service of the order upon him. He believed that the order would not have effect unless it was served on him. The decision to stay overnight at his parents' home was nothing to do with the consumption of wine or a concern that it would be unsafe to drive. He would otherwise have gone home at some point that evening, at a time when personal service could have been effected upon him and the computers could have been delivered up or arrangements could have been made to that end.
38. On the morning of 16 September Mr Thomas drove straight to Astell's premises. Had he not been trying to avoid service upon him, he could have been expected to make the detour home to pick up the various documents that had been left with his wife. As it was, he had to have them faxed to him by his wife in the course of the day while he was at Astell's. Having received them, he took advice on them from the solicitors obtained for him by Mr Pennock. Even if he did not appreciate the nature of his legal obligations previously, his own evidence was that at this stage he "realised what this was all about" and that by 4.00 pm, in the light of the advice received, he knew that he must comply with the order, in particular by delivering up the computers.
39. The claimant's case is that Mr Thomas nonetheless continued deliberately to avoid service of, or compliance with, the order. He did not contact the supervising solicitor or make any attempt to deliver up the computers on Thursday afternoon and he did not notify his wife that his position had changed and that she should comply with the order. Mr Thomas's case is that, having been advised that he should not be working at Astell's premises, he left at about 4.30 pm and drove home (a journey that would normally take about 2Y2 hours), expecting the solicitors to be there on his arrival so that he could deliver the computers up to them. His wife telephoned him while he was in his car on the M25 and told him that the solicitors were at home and that they wanted to know his whereabouts and his mobile phone number. He told her to tell them that he was on his way home and would be home shortly (or as quick as he could). But the traffic was very heavy and he did not in fact get home until about 8.00 to 8.30 pm. He was surprised to find that the solicitors were no longer there. Having seen no sign of them, he walked to the village pub for a meal, returning home when the pub closed. If the solicitors had come back while he was in the pub his wife would have telephoned him and he would have gone straight back home. On Friday morning, 17 September, he left home at about 8.30 to 9.00 am to go to London where he was due to have a conference with counsel.
40. I do not believe important elements of Mr Thomas's account concerning the Thursday evening. Mrs Thomas told the supervising solicitor that her husband was on the way home and was on the M25, but she said nothing about his being back shortly (or as quick as he could); and in her evidence, which was credible, she said that she could not recall his having said anything to that effect. Moreover, had he said anything to that effect or to convey the impression that he would be home soon and that it was therefore unnecessary for the solicitors to have his mobile phone number, or that they should wait for him, it is highly unlikely that Mrs Thomas would have failed to communicate this to the supervising solicitor or that matters would have proceeded as they did. In my view the inference properly to be drawn is that Mr Thomas, far from intending to return home while the solicitors were at his home, waited until they had gone (or there was a good prospect that they would have gone) before returning home. For the same reason he left home on the Friday morning earlier than he needed to in order to get to London in time for his conference with counsel and before the time when the solicitors could be expected to return to his home in a further attempt to effect personal service on him and secure full compliance with the orders.
41. Thus, at least pending the conference with counsel on the Friday afternoon, he was still trying to avoid service of the order upon him or full compliance with its terms. From the Friday afternoon, however, I do not think that it would be right to find a continuing attempt to avoid service or compliance, since from that point it was left to his solicitors to make arrangements for service of the order upon him and compliance with what were understood to be the outstanding requirements of the order.

The Astell laptop

42. The claimants contend that, in addition to the computers at the defendants' home, Mr Thomas was in possession of a business laptop (referred to as "the Astell laptop") which he failed to deliver up in accordance with the disclosure order.
43. On Mr Thomas's own account he had previously had a laptop of his own which ceased to work in April 2004 and was discarded on a council tip. Although I have found Mr Thomas to be an unreliable witness and there is no supporting evidence in relation to the previous laptop, I am prepared to accept that he did previously have a laptop but that it was no longer in his possession at the time material to the present proceedings. I need say nothing further about it.
44. The Astell laptop was purchased by Astell in August 2004 in connection with a program being written for Astell by a company called B&R. It was used both for programming work by a B&R programmer and for testing the program to ensure that it operated in accordance with the specifications. Mr Thomas was involved in the testing and, thereafter, in writing a customer manual. He did some of that work at B&R's premises and some of it at Astell's premises. The laptop was available to him for his work during the week, but was sometimes required at weekends for private use by one of Astell's directors. The relevant issue is whether he had it in his possession during the currency of the disclosure order, so that it ought to have been delivered up under the terms of that order.
45. Mr Thomas's evidence is that he was last in possession of the laptop on 14 September, when he returned it to Astell's premises: it was therefore not in his possession during the currency of the disclosure order. The claimant invites the court to reject that evidence. It is pointed out that Mrs Thomas told the supervising solicitor on 15 September that her husband had a laptop in his car which he used for business purposes. The suggestion that it had been handed back the day before the disclosure order was obtained is said to be too much of a coincidence and lacking any rational explanation. As was elicited in cross-examination of Mr Thomas, he still needed the laptop after 14 September (for completion of the manual, for which there was an October deadline) and indeed he accepted that his work on the manual at Astell's premises on 15 September was partly on the paper copy and partly on the laptop.
46. In my judgment the claimant's case that Mr Thomas was in possession of the Astell laptop during the currency of the disclosure order has not been proved. Mrs Thomas's evidence that he had a laptop in his car does not take matters very far: the fact that she had seen it previously in his car does not show that it was in his car during the period covered by the disclosure order. By contrast, examination of Mr Thomas's invoice to Astell for work done in September 2004 supports his evidence that he was regularly attending B&R's premises up to and including 13 September (during which period he needed the laptop with him), but was back at Astell's premises at 14 September (when he says he left the laptop there). There was a good reason for him to have the laptop in his possession while working at B&R's premises, which were close to his home and a long way from Astell's premises, and to have it in his car when travelling between his home and B&R's premises. By contrast, there was no obvious reason why he should need to carry the laptop with him when he was working at Astell's premises. The evidence that he had left it at Astell's premises on 14 September is therefore not inherently implausible.
47. Accordingly, I proceed on the basis that the only relevant computers for the purpose of compliance with the disclosure order were the two computers at the defendants' home and that the Astell laptop is to be left out of account.

Deletion of computer files

48. Mr Thomas's evidence is that he discovered only on the morning of Saturday 18 September that his wife had delivered up the children's computer rather than the home computer used by him and his wife. If this is true it betrays a remarkable lack of communication between husband and wife and lack of observation by Mr Thomas himself. But I feel constrained to give him the benefit of the doubt on the point. It would therefore be wrong to infer that the delay in handing over the home computer was designed to give Mr Thomas an opportunity to delete files from it at the weekend. In practice, of course, the delay did give that opportunity and led to that result.
49. Having discovered that the computer was still at home, Mr Thomas deliberately installed on it a "scratch" program supplied with a computer magazine he had bought two to three weeks previously, and used the scratch program to effect permanent deletion of relevant files from the hard disk. Although there was some suggestion in cross-examination that he may have obtained assistance from others in relation to the scratch program, there is an insufficient basis for me to reject his denial of this. I have referred already to the various categories of his files on the computer. Four of the files deleted related to Astell drawings (category (b)), two related to his own project (category (c)). He acted in this way because he did not think it right for the information to get into LTE's hands, believing that LTE would use it for the company's own purposes.
50. Mr Thomas had back-up copies of the Astell files. There remains a question whether I can accept his evidence that he did not have back-up copies of the files he deleted in category (c). I am troubled by this, but my doubts about the general reliability of Mr Thomas as a witness are not a sufficient basis for rejection of his evidence on the point. The value of the files to him, and therefore whether it is plausible that he would have deleted them permanently without keeping back-up copies, was not explored sufficiently in evidence. I therefore proceed on the basis that there existed back-up copies only of the Astell files.
51. On Monday 20 September Mr Thomas did at least tell his legal representatives about the deletion of the files and he set the position out in his disclosure affidavit. But the affidavit made no reference to the fact that he possessed back-up copies of some of the deleted files. He accepted in cross-examination that the affidavit gave the false impression that the files had gone for good. The existence of back-up copies of certain of the files was admitted, and the copies themselves were disclosed, only after further questions had been asked by the claimant's solicitors.
52. I accept that Mrs Thomas was not involved in the deletion of files and that she learnt of it only subsequently; and when she did learn of it, she was not aware at the time of the existence of back-up copies of some of the files.
53. One further matter I should mention is that the defendants went to a shop and bought a substitute home computer over the weekend. There was a fair amount of questioning about this, but in the event I take the view that nothing turns on it and that I need deal with it no further.

Contempt: general issues

54. It is common ground that the burden of proving the contempt of court alleged against each defendant is on the claimant and that the standard is proof beyond reasonable doubt. I have applied that burden and standard reaching my findings. (Closely linked with the standard of proof is a point made by Mr Bard on behalf of Mr Thomas, that a person should not be found guilty of contempt on the ground that upon one of two possible constructions of an order he is in breach of that order: see Bean and Parry, Injunctions, 8th ed, para 6.18. It is not, however, a point on which anything seems to me to turn in the circumstances of the present case.)
55. In this case I am concerned with allegations of civil contempt arising directly out of breaches of the two disclosure orders, and of criminal contempt consisting in interference with the administration of justice.
56. As regards civil contempt, RSC Order 45 rule 5 provides for enforcement of orders of the court by means of, inter alia, an order of committal. That is subject to rule 7, which provides in material part:

"(2) Subject to paragraphs (6) and (7) of this rule, an order shall not be enforced under rule 5 unless -

(a) a copy of the order has been served personally on the person required to do or abstain from doing the act in question; and

(b) in the case of an order requiring a person to do an act, the copy has been so served before the expiration of the time within which he was required to do the act.

...

(6) An order requiring a person to abstain from doing an act may be enforced under rule 5 notwithstanding that service of a copy of the order has not been effected in accordance with this rule if the court is satisfied that pending such service, the person against whom or against whose property it is sought to enforce the order has had notice therefore either -

(a) by being present when the order was made, or

(b) by being notified of the terms of the order, whether by telephone, telegram or otherwise.

(7) The court may dispense with service of a copy of an order under this rule if it thinks it just to do so."

57. A further requirement, under rule 7(4), is the prominent display of a penal notice on the front of the copy of the order served. It is not, however, in issue that penal notices in appropriate terms were displayed on the orders in this case.
58. Mr Bard, on behalf of Mr Thomas, advanced a submission of no case based in part on the requirement of personal service for enforcement of any positive obligations in an order and the absence of personal service of either disclosure order on Mr Thomas. I rejected that submission, giving brief reasons at the time and indicating that I would give further reasons as necessary in this judgment. Mr Bard referred back to the same points as part of his closing submissions.
59. I accept that there was no personal service of either disclosure order on Mr Thomas. The relevant question is whether the requirement of personal service was, or should now be, dispensed with in relation to the first disclosure order, which was directed specifically at Mr Thomas.
60. I have mentioned already that the first disclosure order provided in terms for service between 9.30 am and 5.00 pm on a weekday, by the supervising solicitor. The further order obtained by telephone from McCombe J on the Wednesday evening extended the hours for personal service and provided in addition that "[s]ervice may otherwise be effected by posting the disclosure order ... through the letter box of the Respondent's premises". There are two main reasons why I am not prepared to accede to the claimant's submission that that further order should be read as dispensing with the requirement of personal service under RSC Order 45 rule 7(7) for the purposes of enforcement by way of committal.
61. First, although it provides for substituted service, as a departure from the normal rule that an interim injunction of this kind must be served personally by the supervising solicitor (see CPR Part 25 PD para 7.4(1», the further order is not directed in terms to enforcement of the injunction under RSC Order 45 rules 5 and 7; and on the material I have seen I am not satisfied that McCombe J was directed to those enforcement provisions or had it in mind to make an order that would enable Mr Thomas to be committed for breach of the original disclosure order without personal service of that order upon him.
62. Secondly, had that been the intended or perceived effect of McCombe J's further order, the application to McCombe J would not have been referred to in the claimant's evidence simply as an application "to extend time for service" of the first disclosure order (para 11 of Miss Costello's second affidavit) and there would have been no purpose in the claimant's lawyers applying to Simon J on 20 September for an order expressly dispensing with the requirement of personal service upon Mr Thomas under RSC Order 45 rule 7(7). The court should be slow to read McCombe J's further order as dispensing with the requirement of personal service under rule 7(7) when the claimant's own solicitors evidently did not think that it had that effect.
63. I should also mention that Mr Bard took the point that the first disclosure order provided that service must be effected by the supervising solicitor and that, although the method of permitted service was varied by McCombe J's further order, it did not alter the requirement of service by the supervising solicitor. Since the order was posted through the letter box at the defendants' home by a process server and not by the supervising solicitor, it is said that even substituted service was not effected in compliance with the order. The point is a very technical one and does not affect my overall assessment of whether breach of the disclosure order by Mr Thomas can be enforced by way of committal.
64. As to Simon J's order of 20 September dispensing with the requirement of personal service, in my view it does not assist the claimant in the present proceedings because it was not expressed to be retrospective. It plainly made committal available, even in the absence of personal service, as a means of enforcement in respect of any future non-compliance with the disclosure order by Mr Thomas, but in the absence of clear words I am not prepared to read it as applying to any failure to comply in the past.
65. It is, however, common ground that the court does have power to dispense with the requirement of personal service under rule 7(7) retrospectively: see Davy v. Tazzyman [1997] 1 WLR 1256. It seems to me to follow from the reasoning in Davy (see in particular per Morritt LJ at 1261F-1262A), and I understand it now to be common ground, that the power can be exercised at any time. From an early stage in the case Mr Downes signalled clearly the claimant's intention to apply for such an order should it be necessary to do so, though he preferred not to make the application until after cross-examination of Mr Thomas. In the event he made the application as part of his closing submissions.
66. At the point when I was considering Mr Bard's submission of no case, I took the view that the court's power to dispense with the requirement of personal service at any time with retrospective effect was fatal to his contentions based on the absence of personal service. Had Mr Downes been forced to apply at that stage for an order dispensing with the requirement retrospectively, I would have acceded to the application. But I accepted that it would be better and fairer for the matter to be considered at the end of the case, once all the evidence had been heard. (A further reason for not acceding to the submission of no case was that in my view there was a case to answer on interfering with the administration of justice even leaving aside civil contempt for breach of the disclosure order. Some of the other issues raised by Mr Bard seem to me to have fallen away because, as explained below, the allegations of contempt to which they related have not in the event been sustained or are not said to add materially to the case. In those circumstances I do not need to go back to the reasons why I rejected the submission of no case in respect of them.)
67. Having now heard all the evidence, I am satisfied that it is, in the terms of RSC Order 45 rule 7(7), "just" to dispense with the requirement of personal service of the first disclosure order on Mr Thomas with retrospective effect, so as to enable the order to be enforced against him by way of committal in respect of the period from the early evening of Wednesday 15 September (Mr Downes suggested a starting point of 7.30 pm that evening, which would be a reasonable figure to take if absolute precision were necessary). By that time he knew of the existence and general nature of the first disclosure order, he could have gone home to receive a copy of the order, and the reason why he did not go home is that he was deliberately seeking to avoid service of the order upon him. Deliberate evasion of service is a very strong reason for dispensing with the requirement of personal service.
68. Mr Bard submitted that it would be harsh and impractical to dispense with the requirement of personal service, given that compliance required the personal and simultaneous presence, at the defendants' home, of Mr Thomas, the supervising solicitor and the claimant's solicitors; the claimant's solicitors were not giving notice of their movements; and Mr Thomas could not be expected to chase around rather than concentrate on getting his own legal advice. I reject those submissions. In my judgment it is neither unduly harsh nor impractical to dispense with the requirement.
69. I would add that the case for retrospective dispensing with the requirement of personal service becomes even stronger with effect from the afternoon of the following day, Thursday 16 September, since by that time Mr Thomas had received a copy of the disclosure order (faxed through to him at Astell's premises by his wife in the course of the day), had had time to consider it and had taken legal advice on it. By that time there could be no question of his thinking that the order would have effect only if served on him personally: he knew that he must comply with the order and what he was required to do in order to comply.
70. It follows that the absence of personal service is not an obstacle under the rules to committal of Mr Thomas for breach of positive as well as negative obligations in the first disclosure order.
71. The foregoing is concerned with potential liability for civil contempt of court through breach of the orders. In addition, as I have mentioned, the case against each defendant is put on the basis of alleged criminal contempt of court by interfering with the course of justice, in accordance with the principles in Z Ltd v. A-Z and AA-LL [1982] 1 QB 558. The case on criminal contempt depends on notice of the order rather than on any requirement of personal service of the order.

Contempt of court by Mr Thomas

Count 1

72. The first set of allegations against Mr Thomas relates to his failure to comply with the first disclosure order in relation to delivery up of computers and his instruction to his wife not to deliver them up. The specific allegations are:

"1(a) The First Defendant failed immediately upon service and/or notice of the First Disclosure Order to deliver up immediately to the Supervising Solicitor any computers, laptops and/or electronic storage devices at the premises or otherwise in his possession or control, contrary to paragraph 6 of the First Disclosure Order.

1 (b) The First Defendant failed to permit the Supervising Solicitor to take the said computers, laptops and/or electronic storage devices away and deliver them to the IT specialist, contrary to paragraph 7 of the First Disclosure Order.

1 (c) The First Defendant intentionally interfered with the administration of justice by instructing and/or causing the Second Defendant to fail, contrary to paragraphs 4(c), 6 and/or 7 of the First Disclosure Order, to deliver up the computers, laptops and/or electronic storage devices and/or permit the Supervising Solicitor to take the said computers, laptops and/or electronic storage devices away."

73. I should mention that at the beginning of the hearing before me I allowed an amendment to include, in "count" l(c) and other allegations of interference with the administration of justice, reference to "intentional" interference. In my view the allegation of intentional interference was generally implicit in the particulars given by the claimant and was in any event fully addressed in the evidence. The amendment could in my judgment be made without any injustice to either defendant. It was not suggested on behalf of either defendant that the amendment gave rise to a need for additional evidence, and no adjournment was requested.
74. In my judgment the first set of allegations against Mr Thomas is made good on the evidence. It was open to Mr Thomas to comply with paragraphs 6 and 7 of the first disclosure order by instructing or permitting his wife to deliver up the computers at their home to the supervising solicitor on the Wednesday evening (and to permit the supervising solicitor to take them away for delivery to the IT specialist), or by returning home for the purpose of delivering them up himself. As it was, however, Mr Thomas effectively instructed his wife not to deliver them up and they were not delivered up either "immediately" or at all that evening. There was a clear breach of the requirements of the order, as set out in counts I (a) and l(b).
75. I reject Mr Bard's submission that on the proper construction of the order Mr Thomas was unable to comply unless he was physically present at his home together with the supervising solicitor; but in any event Mr Thomas could have returned home so as to be physically present had he wished to do so. I also reject, as already indicated, the submission that what Mr Thomas said to his wife about not wanting the computers to be handed over unless he was present should be treated as a mere expression of preference rather than an instruction. Further, contrary to another submission by Mr Bard, the instruction did have a causative effect. It was one of the factors that operated on Mrs Thomas when she decided not to hand over the computers, even though by her own admission the decision was motivated primarily by bloody mindedness. Nor do I accept that the existence of an instruction not to hand over the computers, or of any causative effect of such an instruction, is negatived by Mrs Thomas's willingness to agree to the compromise suggested by the supervising solicitor on the Thursday evening.
76. The breach continued on the Thursday evening, but only as regards the failure to deliver up Mrs Thomas's own computer. It was brought to an end in relation to that computer only by the arrangements made the following week for the computer to be held by Mr Thomas's solicitors pending the return date.
77. In addition, Mr Thomas's conduct amounted to a criminal contempt as alleged in count l(c). A finding of criminal contempt should, however, be made only in respect of the failure to deliver up Mrs Thomas's computer on and from the Thursday evening. In my view the necessary intent has not been proved in respect of events on the Wednesday evening. At that point Mr Thomas did not think that the order had effect unless served on him and did not realise that the order also required Mrs Thomas herself to deliver up items in her control. By the Thursday evening, however, Mr Thomas had seen the terms of the order, had received legal advice, knew that he must comply and knew what was required in order to comply. By his actions on that evening, and by not withdrawing or changing his previous instruction to his wife not to hand the computers over in his absence, he was still seeking deliberately to prevent compliance with the order. At that stage he had the necessary intent to interfere with the administration of justice.
78. My finding of contempt in relation to the first set of allegations is confined to the computers at the defendant's home. For reasons already given, I have found that Mr Thomas was not in possession or control of the Astell laptop at the material time and that the order did not therefore cover it.
79. Although the finding of contempt does apply to failure to deliver up the children's computer on the Wednesday evening, that failure is of no materiality since the children's computer was delivered up on the Thursday evening and did not contain any relevant information. It is in relation to Mrs Thomas's own computer that the failure is material. Its importance lies in the opportunity it gave for deletion of relevant files over the weekend, and it is in conjunction with the deletion of files that its true seriousness falls to be assessed.
80. The contempt is made the more serious by Mr Thomas's conduct in seeking to evade service of the order on him. His persistence in a false account in his evidence to the court deprives him of mitigation that might otherwise have been available to him.

Count 2

81. The second set of allegations against Mr Thomas relates to the deletion of files on the home computer on Saturday 18 September. The specific allegations are:

"2(a) The First Defendant destroyed or attempted to destroy information contained on the hard drive of the Defendants' computer located at the premises, contrary to paragraphs 6 and 7 of the First Disclosure Order and/or intentionally interfering with the administration of justice.

2(b) The First Defendant intentionally interfered with the administration of justice by disturbing the Defendants' computer contrary to paragraph 1 O(b) of the Second Disclosure Order. "

82. Mr Downes made clear in the course of argument that count 2(b) is an alternative to count 2(a) and is not needed if count 2(a) is made good.
83. I am inclined to accept Mr Bard's submission that the deletion of files was not in itself a breach of paragraph 6 or 7 of the order. It was the failure to give immediate delivery up of the computers and to permit them to be taken away that constituted the breach of those provisions. But I am of the clear view, and Mr Bard accepted, that the deletion of the files amounted to an intentional interference with the administration of justice as alleged in count 2(a). It was done in order to prevent the files being handed over to the claimant as intended by the order, and thus for the purpose of frustrating in this respect the operation of the order. It was a serious criminal contempt.
84. For reasons already indicated, I proceed on the basis that it was only on the Saturday morning that Mr Thomas realised that his wife's home computer had not been delivered up by her on the Thursday evening. To this extent his conduct in deleting the files can be regarded as opportunistic. Nevertheless the loading of a scratch program and its use to delete the relevant files was a deliberate action which Mr Thomas clearly knew to be wrong. His subsequent admission of what he had done counts in his favour, though detection was probably inevitable upon expert inspection of the computer's hard disk. The fact that he deliberately concealed the existence of back-up copies of some of the files, until forced by further questioning to disclose them, counts against him. I have rejected already the claimant's contention that the court should not be satisfied that Mr Thomas had not made back-up copies of the other deleted files.
85. I take account of the fact that Mr Thomas has apologised to the court for acting as he did, and that he was motivated by a distrust of Mr Perry and LTE and a concern about disclosing material confidential to Astell (and, it would seem, about disclosing material revealing ideas of his own, upon which he said he had no intention of acting in the near future or while the relevant restrictive covenants were in force). Nevertheless his contempt of court in deleting the files, at a time when he had received detailed legal advice and was fully aware of the requirements of the order, remains a serious matter.

Count 3

86. The third set of allegations against Mr Thomas relates to failure to comply with the disclosure order by immediately handing over the listed items that were in his possession or under his control, as required by paragraph 9, and immediately providing the information referred to in paragraph 12. These allegations are based on the delay in providing relevant documents and information from the time of notice of the order to the date of Mr Thomas's disclosure affidavit (20 September). Mr Downes accepted, however, that they do not add materially to the strength of the case raised in the first two sets of allegations and that they would not have been pursued on their own. In the circumstances it is unnecessary to deal with them further.

Count 4

87. The fourth allegation relates to the fact that on the evening of Wednesday 15 September, in breach of paragraph 14 of the first disclosure order, Mr Thomas telephoned Mr Pennock of Astell and informed him of the proceedings and/or of the contents of the order. Mr Downes accepts, however, that the claimant has not proved beyond reasonable doubt that Mr Thomas knew of the gagging provisions in order at the time when he telephoned Mr Pennock. This allegation is therefore not pursued.

Summary

88. Accordingly, the relevant findings of contempt of court by Mr Thomas relate to the failure to deliver up the home computer until the week beginning 20 September and the deletion of files on that computer prior to its delivery up.

Contempt of court by Mrs Thomas

Count 1

89. The first set of allegations against Mrs Thomas relates to her failure to deliver up the computers as required by the first disclosure order. The specific allegations are:

"l(a) The Second Defendant failed and caused the First Defendant to fail immediately upon service of the First Disclosure Order to deliver up immediately to the Supervising Solicitor any computers, laptops and/or electronic storage devices at the premises, contrary to paragraphs 4( c) and 6 of the First Disclosure Order and/or intentionally interfering with the administration of justice.

1(b) The Second Defendant failed and caused the First Defendant to fail to permit the Supervising Solicitor to take the said computers, laptops and/or electronic storage devices away and deliver them to the IT specialist, contrary to paragraphs 4(c) and 7 of the First Disclosure Order and/or intentionally interfering with the administration of justice."

90. It is admitted by Mrs Thomas that she was in breach of paragraphs 6 and 7 of the order when read with paragraph 4(c) and that her conduct amounted to a civil contempt of court. In the circumstances I think it unnecessary to decide whether her conduct could also be characterised as a criminal contempt of court.
91. Mrs Thomas has apologised to the court for this and any other contempt that she is found to have committed. In relation to this contempt there are numerous mitigating factors. First, Mrs Thomas was under considerable personal strain during this period. Her son had been admitted to hospital on 12 September with suspected meningitis and discharged on 15 September with a diagnosis of a serious viral infection. She herself had been spending a lot of time with Mr Thomas's mother who, as mentioned above, was suffering from terminal cancer. When the solicitors arrived at the defendants' home on 15 September Mrs Thomas was at home with her two children and was clearly taken by surprise. Her husband was not there. She was faced with a draconian order. She had no familiarity with such matters. She felt that she and her husband were being intimidated by the claimant company and its chairman Mr Perry. She herself was involved in an employment dispute with the company, which was due to be heard by an employment tribunal on 1 October (when the case was in fact determined in her favour). She was concerned that her own computer might contain information of value to the claimant in the employment tribunal proceedings. Her son who had just come out of hospital was playing on the children's computer. Moreover her husband had told her on the telephone that he did not want the computers handed over in his absence. All those factors help to explain why Mrs Thomas acted in the way she did on the Wednesday evening, though she accepted in her oral evidence that she was motivated primarily by bloody mindedness. The candour of her evidence is another consideration to be taken into account in her favour.
92. On the other hand, her decision was taken after receipt of legal advice and notwithstanding the safeguards contained in the order (though the safeguards were not explained to her in detail); and she plainly understood that what she was doing was wrong. It is not without significance that she told the solicitors that she would probably be "banged up".
93. Mrs Thomas also made criticism of the conduct of the claimant's solicitor, Mr Goodrham, saying that at one point when he was in attendance at her home on Wednesday 15 September he shouted at her in an abusive and intimidating manner. On the basis of the evidence I have heard, including that of all three solicitors who attended the defendants' home, I am satisfied that Mr Goodrham spoke firmly to Mrs Thomas but did not shout at her or behave improperly. Making allowance, however, for the highly stressful situation in which she found herself at the time, I take the view that Mrs Thomas may have formed a mistaken impression of his tone. In the circumstances, although I reject her criticism, I do not hold against her the fact that she made it.

Count 2

94. The second set of allegations against Mrs Thomas relates to her continued failure to deliver up the defendants' home computer when served with the second disclosure order. The specific allegations are:

"2(a) The Second Defendant failed immediately upon service of the Second Disclosure Order to deliver up the Defendants' computer located or situated at the premises, contrary to paragraph 6 of the Second Disclosure Order and/or paragraphs 4(c) and (6) of the First Disclosure Order and/or intentionally interfering with the administration of justice.

2(b) The Second Defendant failed to permit the Supervising Solicitor to take the Defendants' computer away and deliver it to the IT specialist, contrary to paragraphs 4( c) and 7 of the First Disclosure Order and/or intentionally interfering with the administration of justice."

95. The claimant submits that those breaches were more serious than the first set of breaches, in that Mrs Thomas had had a day to reflect and take further legal advice and a further order was served upon her. The failure to comply is particularly unfortunate given that at this late stage her compliance would have safeguarded the evidence that was subsequently destroyed. Moreover at this stage she cannot rely on an excuse of bloody mindedness in the heat of the moment: time had passed and she had had the opportunity to cool down and decide to comply. It is submitted that in reality her only mitigating circumstance is that she was still continuing to comply with her husband's instruction not to hand over the computers.
96. Those points have force to them. It does seem to me, however, that Mrs Thomas's position was still one of considerable stress and that the factors to which I have referred in the context of the Wednesday evening continued to have a significant effect on her. She was unable to obtain further legal advice about the fresh development of an order directed specifically at her. A point counting very much in her favour is that she was willing to accept the· compromise suggested by the supervising solicitor. However reasonable it may have been for the claimant's solicitors to reject the suggested compromise, Mrs Thomas's willingness to accept it supports the case that she had genuine concerns about the computer getting into the hands of LTE and mitigates her failure to comply with the orders. I also take into account her apology.
97. The claimant does not pursue a separate allegation that Mrs Thomas caused, permitted and/or encouraged her husband to remove information contained on the hard drive of their home computer. It is accepted that this has not been proved.

Count 3

98. The third main allegation against Mrs Thomas relates to her failure to provide her husband's mobile phone number. The specific allegation is:

"3. The Second Defendant failed immediately upon service of the Second Disclosure Order to inform the Claimant's solicitors of the mobile telephone number of the First Defendant, contrary to paragraph 4(2) of the Second Disclosure Order."

99. Mr Downes submits that this was a simple requirement and that the breach was a serious matter, given the surrounding circumstances. It is said that the explanation given by Mrs Thomas, namely that she did not want her husband disturbed or upset, cannot be true. Her husband confirmed that his wife regularly telephoned him on his mobile phone; she had already telephoned him while he was in his car to tell him of the position; and she could easily have complied in a way that did not endanger him (e.g. by telephoning him and asking him to pull over, then setting up the connection).
100. The breach of the order is clear and the contempt of court is admitted. Again I take into account the apology offered to the court. I accept that Mrs Thomas may have been worried that a direct call by the solicitors on her husband's mobile phone while he was driving would have upset and distracted him. That, however, is plainly not a good reason for her refusal to provide the information required. Mr Downes is also right that ways were available of meeting her concern had she explained her position to the supervising solicitor. The significance of the breach lies in the wider circumstances of Mr Thomas's evasion of service of the order upon him. By preventing contact with him she was assisting that strategy.

Count 4

101. The fourth and final allegation relates to the fact that Mrs Thomas telephoned her husband late on the Wednesday afternoon and informed him of the proceedings and/or of the contents of the first disclosure order, in breach of paragraph 14 of the order. The claimant accepts, however, that Mrs Thomas may well have genuinely believed that she was not prevented from discussing the position with her husband. Accordingly, although it is submitted that the contempt is proved, it is not pressed by the claimant or relied on as adding to the weight of the case against Mrs Thomas. I have strong doubts as to whether, on the proper construction of the order, it was a breach for Mrs Thomas to inform her husband about it; but it is not necessary to spend time on that issue.

Summary

102. Accordingly, the findings of contempt of court by Mrs Thomas relate to the failure to deliver up the home computer and the failure to provide her husband's mobile phone number.

Penalties

103. The claimant submits that in the case of Mr Thomas a custodial sentence is appropriate, albeit that a short custodial sentence would suffice. It is submitted that unless Mr Thomas's conduct were marked in that way, so as to leave him in no doubt of the seriousness of his actions, the claimant's remedy in the underlying action (which is primarily an injunctive remedy) would be useless. Reference is made to R v. Montgomery [1995] 2 All ER, which concerned a witness's refusal to testify but set out principles to which the court should have regard in a case of criminal contempt. It was stated in particular that an immediate custodial sentence is the only appropriate sentence to impose on a person who interferes with the administration of justice, unless the circumstances are wholly exceptional (see page 32j).
104. The claimant makes no submissions as to the position of Mrs Thomas, save that she should be responsible for the claimant's costs on an indemnity basis.
105. In the case of Mrs Thomas, taking into account all the matters to which I have referred above, I have come to the conclusion that an appropriate and sufficient sanction is an order for costs on an indemnity basis. Mr Henderson submitted that she should be made liable for only part of the claimant's total costs of the contempt proceedings, whether by allocating the costs between her and her husband or by placing a cap on her costs liability. I will hear further from counsel before reaching any decision on that issue.
106. In the case of Mr Thomas, on the other hand, I am driven to the conclusion that an order for committal to prison is in principle the appropriate sanction. I repeat that the deletion of the files, which lies at the heart of the case against him, is a serious criminal contempt. The failure to deliver up the home computer is not as serious a matter in itself, whether viewed as a civil or as a criminal contempt, but cannot be divorced from the deletion of the files (for which there would have been no opportunity if the obligation to deliver up the computer had been complied with). The facts are very different from those in R v. Montgomery and one must have in mind the difference in context when considering the principles set out in that case. Nevertheless Mr Thomas's conduct was of a kind that in my view would normally call for an order for committal rather than a merely financial sanction. I must have regard not only to the need to encourage compliance by Mr Thomas with other orders of the court in the proceedings brought against him by LTE, but also to the wider importance of ensuring respect for orders of the court.
107. However, before reaching any final decision on whether an order for committal should be made or on the length of any period of imprisonment, I think it right to give counsel the opportunity to address me on the question whether, in particular, any further matters of mitigation have arisen between the date of the last hearing and the date of this judgment. I will need to consider whether, looking at the case as a whole, there exist exceptional circumstances that should cause me to refrain from imposing the otherwise appropriate order.
108. In any event, Mr Thomas must be ordered to pay costs on an indemnity basis. The precise nature of the costs order must be determined together with the costs order against Mrs Thomas and is likewise a matter on which counsel must be given an opportunity to make submissions.
109. My final decision on sanction and costs will therefore be reserved to the hearing at which I hand down this judgment, but will be made within the parameters indicated above.