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England and Wales High Court (Chancery Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Discovery Land Company LLC & Ors v Jirehouse & Ors [2019] EWHC 1633 (Ch) (07 June 2019) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2019/1633.html Cite as: [2019] EWHC 1633 (Ch) |
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BUSINESS & PROPERTY COURTS OF ENGLAND & WALES
BUSINESS LIST
CHANCERY DIVISION
B e f o r e :
____________________
DISCOVERY LAND COMPANY, LLC | ||
TAYMOUTH CASTLE DLC, LLC | ||
RIVER TAY CASTLE LLP | Claimants | |
-and- | ||
JIREHOUSE (a body corporate) | ||
JIREHOUSE PARTNERS LLP | ||
JIREHOUSE TRUSTEES LIMITED | ||
JIREHOUSE SECRETARIES LIMITED | ||
ESQUILINE ASSET MANAGERS LIMITED | ||
ESQUILINE FINANCE LIMITED | ||
STEPHEN JONES | ||
JOHN CLARK | Defendants |
____________________
DAVID HALPERN QC (Instructed by BROWN RUDNICK) appeared on behalf of the First to Third Defendants
MR STEPHEN JONES (the Seventh Defendant) appeared in person
____________________
Crown Copyright ©
MR JUSTICE HENRY CARR:
Introduction
The adjournment issue
"The court will also have regard to the need for the respondent to be –
(1) allowed a reasonable time for responding to the committal application including, if necessary, preparing a defence;
(2) made aware of the possible availability of criminal legal aid and how to contact the Legal Aid Agency;
(3) given the opportunity, if unrepresented, to obtain legal advice…"
"47 A committal application has the character of criminal proceedings. The alleged contemnor is therefore entitled to legal aid, so that he can be properly represented: see Kings Lynn v West Norfolk Council v Bunning (Legal Aid Agency, interested party) [2013] EWHC 3390 (QB); [2014] 2 All ER 1095
48 Unfortunately no-one told Mr Thorogood of his right to legal aid during the first instance proceedings. Mr Thorogood subsequently learnt of his entitlement, with the result that he now has legal aid and is represented in this court.
49 Mr Milford accepts that the hearing below proceeded without anyone telling Mr Thorogood of his right to legal aid in relation to the contempt application. Mr Milford also accepts that Mr Thorogood should have been told of his entitlement and then given an opportunity to instruct lawyers of his choice. Therefore there has been a breach of common law principles of fairness and ECHR article 6.3 (c) .
50 I therefore uphold the third ground of appeal."
"It is clear from s.14(g) of the2012 Act [the Legal Aid , Sentencing and Punishment of Offenders Act 2012] that an application for legal aid may be made to the High Court by a person alleged to have committed contempt in the face of the court. It has been held that such an application may be made by a person alleged to have committed some other class of contempt, because such proceedings are "criminal proceedings", as defined in section 14(h) of the 2012 Act and reg.9(v) of the General Regulations, as they are proceedings that involve the determination of a criminal charge for the purposes of art.(6)."
An Order for cross-examination of Mr Jones
"(2) At the hearing, the respondent is entitled –
(a) to give oral evidence, whether or not the respondent has filed or served written evidence, and, if doing so, may be cross-examined; and
(b) with the permission of the court, to call a witness to give oral evidence whether or not the witness has made an affidavit or witness statement.
(3) The court may require or permit any party or other person (other than the respondent) to give oral evidence at the hearing."
"It is clearly established that although a contemnor is not a compellable witness, in proceedings against him for contempt, if he gives evidence, he can be cross-examined on it in relation to the contempt alleged."
"30 In this case, the extent to which the Defendants are in continuing breach is in issue. In resolving that factual issue, Mr Milner suggests that it is for the Claimant to seek the Court's order to allow cross-examination of the First Defendant (as contemnor). He submits as follows in his skeleton: " insofar as [the Claimant] might wish to cross examine [the First Defendant] as to the completeness of his disclosure, that is not permissible without a further application supported by evidence justifying the proposed cross-examination: see JSC BTA Bank v Solodchenko [2011] 1 WLR 906 at [31]-[36]". Mr Milner says that because no application has been made, no evidence can be adduced from the First Defendant, and the Court cannot therefore hold his silence against him. This is, in effect, to suggest that the Court is fixed with the First Defendant's affidavit in which he says that he has now complied with the 21 May 2015 Order (and to repeat Mr Milner's point about the limited ambit of the hearing, addressed and rejected above, in a different way). Mr Milner argued that this was precisely what Proudman J had decided in Solodchenko (No 2) . Mr Gunning disputed these submissions on the basis that they were procedurally incorrect, noting that Solodchenko (No 2) pre-dated CPR 81 which came into force on 1 October 2012 by virtue of the Civil Procedure (Amendment No 2) Rules 2012 [SI 2012/2208]. He drew my attention to CPR 81.28 (2) which provides that the respondent to any committal application is entitled to give oral evidence, and if doing so may be cross-examined; but importantly, also to CPR 81.28(3) which provides that the Court " may require or permit any party or other person (other than the respondent) to give oral evidence at the hearing". Thus, he said, the respondent cannot be compelled to give oral evidence. It followed that it was not for the Claimant to seek any order to cross-examine, because the alleged contemnor, as respondent to the application, has a right to remain silent; but the Court can draw an adverse inference from silence, as set out in the White Book at CPR 81.28.4 :
"A person accused of contempt, like the defendant in a criminal trial, has the right to remain silent ( Comet Products UK Ltd v Hawkex Plastics Ltd [1971] 2 QB 67 , CA). It is the duty of the court to ensure that the accused person is made aware of that right and also the risk that adverse inferences may be drawn from his silence ( Inplayer Limited v Thorogood [2014] EWCA Civ 1511, November 25, 2014, CA, unrep. , at para.41)…"
31 I agree with the Claimant's submissions on this point. The fact that the First Defendant has produced some documents, in purported compliance with the 21 May 2015 Order, does not determine the compliance issue in the First Defendant's favour; nor does it require the Claimant to make any application for cross-examination. Rather, the First Defendant is on notice of the Claimant's case that the Defendants have failed to comply with the 21 May 2015 Order, and the Claimant is entitled to continue to advance that case, even in the face of purported compliance by the First Defendant since the date of the application. The burden of proof remains on the Claimant throughout, to the criminal standard, and the Claimant can invite the Court to conclude, on the basis of all the evidence in the case, that the Defendants have not yet complied with the 21 May 2015 Order. If the contemnor chooses to remain silent in the face of that dispute, the Court can draw an adverse inference against him, if the Court considers that to be appropriate and fair, and recalling that silence alone cannot prove guilt. This is not to put the burden of proof on the First Defendant; far from it, the burden remains on the Claimant. Proudman J was dealing with a different situation in Solodchenko (No 2) , where she had already held a fact finding hearing and found Mr Kythreotis to be in contempt, before he subsequently purported to comply with the order; and did not concern the application of rules now clearly now set out in CPR 81."
"57 In light of that conclusion, I hardly need to go on to consider what significance the First Defendant's decision not to give oral evidence might have in relation to my overall evaluation of the First Defendant's case. It is very clear that there are substantial gaps in the disclosure provided to date by the First Defendant. But the fact is that the matters covered in the First Defendant's Fifth and Sixth Affidavits are all matters of fact, within the First Defendant's knowledge. If those matters were being explained truthfully, I would have expected the First Defendant to give evidence to me in person and submit to cross examination, to demonstrate that he really had done everything possible to comply with the 21 May 2015 Order. He did not do that. The fact that the First Defendant did not give evidence, despite his availability for the hearing, does him no credit at all, and I draw an adverse inference against him. The fact that he then put in a Sixth Affidavit, after the hearing, making a number of assertions, supports that adverse inference. The First Defendant is trying to avoid being cross examined. The obvious, adverse, inference to draw is that he is not telling the truth: he knows he has not disclosed all that he can."