Read the full judgment text of CACV 910/2000 on BabelCite. This Court of Appeal judgment was delivered on 29 May 2001 before Rogers VP, Keith JA, Le Pichon JA.
Civil contempt – committal of director for company's breach of mareva injunction – mandatory disclosure order – Order 45 r. 5 and r. 7 of the Rules of the High Court – sub-contract terminated due to delay in progress not applicable – director as sole executive with day-to-day control of company – whether director's failure to use his position to secure compliance renders him personally liable – whether service of injunction order on director may be dispensed with under Ord. 45 r. 7(7) – distinction between aiding and abetting and liability under Ord. 45 r. 5 – whether 21-day sentence of imprisonment appropriate where company subsequently wound up – costs of committal motion on full indemnity basis – costs of appeal on party and party basis – whether the judge below properly exercised her discretion to dispense with service of the injunction order under Ord. 45 r. 7(7) – yes, the order dispensing with service should not be disturbed on appeal, although the judge's reasoning was flawed because she relied on the 2nd contemnor's knowledge at the time of his later affirmation, which was after the time for compliance had expired – the proper basis for exercising the unfettered discretion was that a copy of the order with penal notice had been delivered to the 2nd contemnor's residence and the 2nd contemnor led no evidence of being unaware of it – whether the 2nd contemnor was liable to be committed under Ord. 45 r. 5 for the 1st contemnor's breach of the mandatory disclosure order – yes, the 2nd contemnor was the officer with effective day-to-day control who knew of the order and failed to use his position to secure compliance, and gave no evidence of steps taken to that end – whether the inadequate late affirmation constituted a separate or aggravating contempt – no, the breach was complete when time for filing expired and the inadequacy was not an aggravating factor over and above non-compliance, particularly where the order itself covered subsidiary assets – whether the 21-day sentence of imprisonment should stand – no, the sentence itself could not be criticised, but it should be set aside because the 1st contemnor had been wound up, removing any practical benefit from imprisonment, and the plaintiffs derived no satisfaction from it – appeal allowed to the extent of setting aside the imprisonment order; order nisi for costs of the appeal to the 2nd and 3rd plaintiffs on a party and party basis; costs of the committal motion below on a full indemnity basis.
Legal issues: Dispensing with service of injunction order under Ord. 45 r. 7(7) · Liability of director for company's breach of mandatory disclosure order under Ord. 45 r. 5 · Whether the inadequate late affirmation constituted a separate or aggravating contempt · Whether the 21-day sentence of imprisonment should stand
Outcome: Appeal allowed to the extent of setting aside the order for imprisonment against the 2nd contemnor; the orders dispensing with service and finding the 2nd contemnor liable for contempt under Ord. 45 r. 5 were upheld.
Cited by 3 cases