EWQ v Jansen (Aka GFD)

Neutral Citation Number: [2014] EWHC 894 (QB) IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION Case No: HQ 12 X 00983 Royal Courts of Justice Strand, London, WC2A 2LL Date: Tuesday, 14 th January 2014 Before: MR. JUSTICE TUGENDHAT - - - - - - - - - - - - - - - - - - - - - Between: EWQ - and - NATHALIE JANSEN (aka GFD) Claimant Defendant - - - - - - - - - - - - - - - - - - - - - Digital Transcription of Marten Walsh Cherer Ltd., 1st Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP Telephone: 020 7067 2900 Fax: 020 7831 6864 DX: 410 LDE Email: info@martenwalshcherer.com Website: www.martenwalshcherer.com - - - - - - - - - - - - - - - - - - - - - MR. HUGH TOMLINSON QC (instructed by Messrs. Brown Rudnick LLP) for the Claimant MR. IAN BRIDGE (instructed by Messrs. Lewis Nedas) for the Defendant - - - - - - - - - - - - - - - - - - - - - JUDGMENT MR. JUSTICE TUGENDHAT: 1. I will tell you at once that I am not going to sentence you to an immediate custodial sentence. You may sit down now. 2. This is an application to commit for contempt of court. It arises in respect of undertakings given to the court voluntarily by the respondent and set out in an order dated 29th October 2012. That order was made pursuant to the terms of an agreement entered into between the respondent and the claimant. At that time, and up until a moment ago, the names of both parties were given only in the form of initials pursuant to an order of the court made earlier in the proceedings. The name of the claimant remains subject to that order. The claimant is not to be named. The defendant and respondent to this application is named because of the admissions of contempt of court that she has made. 3. The order which was made by consent, following a detailed agreement between the parties, was drawn up in a 14-page document drafted by solicitors. The respondent was at that time represented by a very well known and experienced firm of solicitors. The proceedings had in fact commenced earlier in 2012, at the beginning of June. The matter came before myself and I handed down a judgment on an interim application on 30th July neutral citation number [2012] EWHC 2182 (QB). In that judgment I set out the background of the dispute between the parties. The order that I made at that time ceased to have effect when the settlement was reached a few weeks later on 29th October 2012. From 29th October the order that was in force, the undertakings that were binding on the respondent, were those which she voluntarily entered into. 4. After the order I made in July 2012 the respondent had a choice. She could have defended the claim being brought against her by serving a defence and she could have advanced in a counterclaim any claim which she might then have had against the claimant. Alternatively, she could do as she did, which was to settle the action on terms set out in the document I have already referred to. 5. The vast majority of cases that come before this court are settled by agreement. A settlement is usually a compromise. Each party is liable to feel remorse that they could have conceded less or gained more by going to trial, but that is the nature of a compromise. It is of the utmost importance that parties to litigation should know that they have achieved finality either when there is a judgment of the court or when, as is more commonly the case, an agreement has been reached in final settlement. In the present case the respondent now admits that she has breached the undertakings which she voluntarily gave to the court as part of that settlement. 6. There are 16 specific breaches which are relied on by the claimant. Most of them are in the form of contacts or other communications with the claimant. Such contacts or communications occurred on 27th May 2013; 28th May; 30th May; 19th June (twice); 20th June; 27th June; 30th June (twice). Those are the first nine breaches. The tenth breach is an instance where the respondent procured a solicitor to contact the claimant’s solicitors. The eleventh breach was on 23rd July. The twelfth was on 3rd August, again by contact or communication. The thirteenth breach on 4 th August included a demand for money made by the respondent to the claimant. There were further breaches by e-mails sent on 7th, 12th and 13th August 2013. The seventeenth breach constituted the foregoing being a course of conduct amounting to harassment of the claimant which is the subject of a separate undertaking that she gave. 7. Because I have set out the nature of the dispute and the background to it in the judgment that I delivered on 30th July, it is not necessary for me to say more about the background to the matter. 8. As to the details of each of the breaches it is not necessary or appropriate that I should do that either. They are set out in the manner required by the rules of court in the documents put forward by the claimant including in the skeleton argument of Mr. Tomlinson. It is important that a litigant, in whose favour undertakings to the court have been made of the kind in question here, should be able to come to the court to enforce those undertakings without, at the same time, defeating the purpose for which the proceedings were commenced, namely, to prevent the disclosure of specified information and to prevent the continuance of a course of conduct amounting to harassment. 9. The admissions made by the respondent today are in the form of a written document headed “Admission of Contempt” and signed by her. It reads as follows: “1. The defendant admits that she has acted in breach of the order of Mr. Justice Tugendhat dated 29th October 2012 recording her undertakings. By reference to the amended application to commit the defendant admits all of the alleged breaches following the initial contact between the claimant and the defendant dated 27th May 2013 recorded as breach one under paragraph 15 of the amended application. The defendant contacted the claimant by e-mail, text and telephone. The claimant also contacted the defendant lawyers instructed. Both claimant and the defendant also contacted each other. There were meetings arranged between the parties and their lawyers on more than one occasion. There is some dispute as to the purpose of the meetings. The defendant admits that she sent some e-mails which were copied to third parties but she does not believe that any of the recipients of the e- mails were not already aware of the matters revealed therein. Although there had been threats made that there would be wider publication of private information the defendant has not acted on the threats. 2. The defendant admits that she has been advised and was aware that she should not contact the claimant. She contacted the claimant in a state of high emotion. She believed that the claimant had caused ongoing harm to her business interests following the Settlement Agreement in October 2012. 3. The defendant was advised that if she had a grievance she should make application to the court and should not seek to resolve the grievance by breaching the order. She did not follow that advice because she was unable to pay for lawyers. She initially approached the claimant’s solicitors in January 2013. It was not until May 2013 that the defendant contacted the claimant by telephone. The defendant accepts that her breaches were serious. She apologises to the court and asks for leniency. The defendant understands that there must be no future contact with the claimant. She also understands that she must not make any future threats to the claimant that she will reveal private information. She also understands that she must not reveal private information in accordance with the terms of the order. 4. The defendant is a single mother. Her daughter is 18 years old and is dependant. She is studying for her A Levels.” That is the end of the document signed by the respondent. 10. The case was listed to commence at 10.30 this morning. At the start of the proceedings I was asked by the respondent and her counsel, Mr. Bridge, for time for them to consider further the application which was before the court. There was a short period in the morning when I directed that the court sit In Private with a view to hearing submissions as to how much, if any, of the remainder of the hearing should be In Private. In the event, it was only that part of the proceedings this morning which was heard In Private. It was necessary for that part of the proceedings to be In Private because it involved mention of some of the matters which were subject of the non-disclosure undertaking given by the respondent on the 29th October. 11. The result of that part of the hearing was that Mr. Bridge then asked me for further time and, in the event, the substantive part of the hearing started at 2.00 p.m. It was at 2.00 p.m. that Mr. Bridge put before the court the document, the contents of which I have just read out. However, it is right to record that Mr. Bridge had indicated at the very start of the proceedings that the respondent wished to apologise for what she admitted (or was about to admit) that she had done and to put forward only matters in mitigation. 12. Mr. Tomlinson indicated that for his part his client, the claimant, did not accept everything stated in the document headed “Admission of Contempt” is the truth or the whole truth. However, in circumstances where the respondent to a motion to commit for contempt makes admissions which the applicant does not regard as the whole truth, the situation is analogous to that in criminal proceedings where there is a basis of plea. The court must, following submissions, make a decision. Either the court proceeds to sentence on the basis of the admissions or it does not, but if it does not, then there must be a hearing. Mr. Tomlinson did not ask for a hearing in which to put to the respondent the points on which he submitted that her admissions are not the whole truth. 13. I took the view that whatever differences there might be between the parties arising out of the submissions of Mr. Tomlinson, it would not be necessary for me to hold a hearing at which the respondent would be required to give evidence and submit to cross-examination. I took the view that the powers of the court to deal with this matter were adequate on the basis of the admissions which the respondent made and as to which there is no dispute, that is to say, the admissions she made of each of the alleged breach of undertaking, including the undertaking not to pursue a course of conduct amounting to harassment. 14. The chronology of the breaches which I have already set out makes clear that they started some time after the 29th October 2012, on any view some weeks after, and as far as the first breach is concerned, months after, that is to say 27th May 2013 and then continued up until shortly before the issue of the application notice which is dated 20th August 2013. 15. I have already indicated the importance that the court attaches to the ability of litigants to know that they have achieved finality when they have entered into a final settlement agreement. The events that have occurred are breaches of the undertakings given as part of that Settlement Agreement. They are serious for that reason. They are also serious for the further reason that they involved in one of the breaches a demand for money. The respondent has, from this morning, made clear that she admits the breaches but she did not admit them before this morning. On the contrary, until I came into court, the indication in the papers was that there would be a hearing which would be contested at least in certain respects. In so far as the respondent had given any indication that she admitted breaches, it was not at the earliest possible opportunity. 16. In all these circumstances, in my judgment, this is a case where the court must consider the imposition of a custodial sentence. This is not only to punish the respondent for what she has done, but also to act as a deterrent to her from repeating such conduct in the future. The length of the sentence which I consider appropriate in this case is one of two months’ imprisonment. I arrive at that figure having taken into account the personal mitigation which has been advanced. But I must consider whether I should suspend that sentence. As I have already indicated at the very start of my sentencing remarks, I have taken the view that I should. The respondent has now made clear that she acknowledges the wrongfulness and the harmfulness of what she has done. She submits in mitigation, and I accept, that this is a matter in which her emotions are strongly engaged. Most importantly, as I have made clear, she has not put the claimant to the trouble and distress which would inevitably had been involved if he had had to prove each of the breaches at a full hearing. The matters involved include personal matters which would have given rise to the anguish which the respondent acknowledges. 17. In those circumstances, in my judgment, I should take the course of suspending the sentence of imprisonment and I suspend it for a period of 18 months. However, I must make clear that if at any time in the future the respondent should be brought back before the court and found to have committed, or admit that she has committed,a further breach of the undertakings which she gave to the court on 29 th October 2012, then there would be some difficulty in her way of avoiding an immediate custodial sentence at that point. (There followed discussion on costs)