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09 November 2018

Sticking together in times of strife

When a family member is going through divorce proceedings it is only natural for the family to rally round and offer support. Occasionally, however, that support can manifest itself in ways which can irk the court.

In a recent decision of His Honour Judge Wildblood QC it was reported that, following a heavily contested divorce, Mr Hart’s younger sister, Mrs Byrne, was required to transfer to Mrs Hart shares in a company called Drakestown Properties Limited. These shares had been held on trust for the benefit of Mr and Mrs Hart. Problems arose in connection with the transfer and Mrs Hart did not receive the documentation necessary to run the company effectively. As a result she issued enforcement proceedings to which the sister and another company, Halesowen Estates Limited, were joined by consent. As part of those proceedings Mr Hart, his sister and the company were ordered to provide certain information which they failed to do.

This led to Mrs Hart issuing a committal application and, on 23 February 2018, Mr Hart was found to be in contempt of court and in breach of enforcement orders, for which he was committed to prison for 14 months (contempt of this nature can in fact be punished by a period of imprisonment of up to two years). The application in respect of Mrs Byrne and the company was adjourned and was heard in October.

The Court found that, notwithstanding Mr Hart’s contempt, the breaches alleged against Mrs Byrne and the company had to be considered entirely separately from those relating to him. The sister and the company were given permission to file witness statements but they chose not to do so. That was their right but it put their barrister in a rather difficult position at the hearing. The judge decided that Mrs Byrne was in contempt and committed her to prison for a period of three months.

Committal is obviously a very serious matter. It has often been said that it is a remedy of last resort but there does appear to have been an increase in such orders in recent years. In such cases the burden of proof is on the applicant and the contempt needs to be proved to the criminal standard and not the lower civil one. As the judge reminded himself in this case, before finding Mrs Byrne guilty of contempt he needed to be sure that (a) she had not done what she was required to do and (b) it was in her power to do so.

The sister and the company accepted that there had been a breach of the enforcement order but argued that they may have been unable to comply with the order without the husband’s cooperation, or that he may have prevented them from doing so. Their barrister argued that ‘It is submitted that the court cannot and should not find it proven to the criminal standard that either [Mrs Byrne’s of the company’s] non-compliance was contumelious, that is to say, born of deliberate disobedience. In short it is submitted that the court cannot rule out: a) that the failure by Susan Byrne was due to her either: i) being unable to provide the material without cooperation from the brother, or else, ii) being overborne by her brother and prevented from complying, or that the failure by [the company] was due to it being in reality run and controlled by [Mr Hart]’. Mrs Byrne did not seek to make out a positive case for dominance by Mr Hart and an inability to produce documents; she just said that these possibilities could not be ruled out. Having concluded that Mr Hart did not wish to comply with orders it would be logical to conclude that he would not want Mrs Byrne to do so either and would have actively obstructed any effort by Mrs Byrne.

At the hearing the judge found that the alleged breaches were proven against the sister and the company. He stated that he had no doubts whatsoever that Mrs Bryne and the company were in contempt and that, notwithstanding the husband’s control of the overarching structure in which the company was involved, Mrs Byrne had the power to provide the information required and there was no evidence to suggest that such power was impeded in any way. Press reports indicate that the judge found Mrs Byrne to be ‘highly respected and respectable’ and having acted ‘out of a sense of misplaced loyalty to her elder brother’ but those characteristics did not save her from the committal order which was made.

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