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To bring or not to bring committal proceedings?



THOMAS BURKETT
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Solicitor

Fri 30 July 2021 To bring or not to bring committal proceedings?

Thomas Burkett recently acted for the successful Defendant in Truell & Anor v Zalinska [2021] EWHC 1877 (Ch) (07 July 2021) - a contempt trial before Mr Justice Michael Green. Save for admitted allegations, all committal allegations were dismissed. 

Amit Karia of New Square Chambers was instructed by Taylor Rose MW on behalf of the Defendant. 

The committal application concerned breaches of freezing orders, alleging the defendant: 

  1. Dissipated c.£76k of the £1.4m sitting in her bank account and, 
  2.  4 grounds of failure to provide full disclosure of her assets. 

After trial and cross examination of the defendant for 1.5 days, Green J. held: 

  1. In respect of the dissipation: “Apart from the limited admissions and findings in respect of Grounds 1 and 2 […], I dismiss the allegations of contempt made by the Claimants. As I have also made clear above, I will not be imposing any punishment on Ms Zalinska in relation to the breaches that have been established.” [90] 
  2. In respect of the failure to provide disclosure: “I should say at the outset that in my view none of the four sub-grounds have been proved by the Claimants, and even if they had been, they would have been too trivial to form the subject matter of a committal applications.” [66] “I do not think there was any merit in the allegations in Ground 3 and they should not have been pursued to this stage by the Claimants.” [91]

Of note is the court’s comment at [91]: “I also think that the general approach adopted by the Claimants in relation to Ms Zalinska has been disproportionate and designed to impose maximum pressure on her, presumably for tactical advantage in the litigation.” 

That comment accords with the heightened concern of the use of committal proceedings as a litigation tactic or to oppress a defendant. Such has recently been brought to the fore in the well reported Baker J. Judgment, in Navigator Equities Ltd v Deripaska [2020] EWHC 1798 (Comm)

It also featured in a recent permission to bring committal proceedings case, Mohammed v Khalil [2021] 4WLUK 266 before Trower J that Thomas Burkett and Amit Karia represented the applicant in. 

The applicant applied for permission to bring contempt proceedings against the respondent for circa 40 allegations of making false statements in documents, verified with a statement of truth to the court. The allegations related to statements made in 14 documents, across 2 High Court claims.

There the court was willing to grant permission as it was satisfied the applicant appreciated the duties his legal advisors owed in a committal application and had confidence that those legal advisors would comply with their independent duty to the court to act appropriately and in the public interest. 

Before giving permission, the court had to be satisfied that there was a strong case that the defendant made false statements knowing that they were false. The court also had to consider the significance of the statement in the proceedings and the use to which it was put; there were then further public interest factors to be considered.

Part 81 of the Civil Procedure Rules (CPR) sets out the procedure to be followed in proceedings for contempt of court.

CPR Part 81 was introduced in 2012. It provided a statement of rules governing applications and proceedings in relation to contempt of court. 

On 1 October 2020, the procedural rules relating to contempt of court were simplified. 

A contempt application must be supported by written evidence and include statements of the alleged contempt, the date and terms of any order allegedly breached or disobeyed. 

CPR 81.3 explains how to make a contempt application. CPR 81.4 lists the specific requirements of a contempt application. 

If a defendant is found to be in contempt of court, the powers of the court in contempt proceedings include; imposing a period of imprisonment, a fine, confiscation of assets or other punishment permitted under the law. 

The outcome in Truell & Anor v Zalinska, demonstrates the importance for an applicant that wishes to bring committal proceedings, to objectively review all the evidence and factual circumstances surrounding the case prior to issuing proceedings and throughout, given the intricate nature of the surrounding case law. 

A full copy of the judgment by Green J. can be found  on BAILII here

Please contact Thomas Burkett at our Carter Lane Office  on 020 3959 0553 or click the ‘contact us’ button to email Thomas directly, if you require any assistance in relation to committal proceedings or commercial civil fraud. 


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