Breach of Mareva Injunctions- the Recourse
“A stable and sharp knife in a litigator’s drawer”[1]
Note: Please refer to my previous article on Mareva Injunctions for background information.
Recent Case Law
In Northern Ireland, a recent judgment has evolved in relation to breaching of a High Court Order. The Judgment was delivered in the High Court of Justice in Northern Ireland. The landmark case concluded that the respondent was fixed a sentence for contempt of the order including hiding assets. The Judge emphasised that deliberate and continuous refusals to honour any part of or all of an Order will not be tolerated.
How does punishment attach to a breach? Endorsement of Penal Notice
Punishment attaches for contempt of an Order through the endorsement of a penal notice. When the Court grants an order or injunction, often the order can be endorsed with a penal notice. This notice effectively puts the defendant or respondent on prompt notice that there will be penalties associated with breaching the order. The penal notice is on the front of the order and is a warning against the person whom the order is served on.
It puts the party on notice that if the order is breached or disobeyed, that person may be held in contempt of court and face punishment through one of the following methods: punished by monetary fine, punished under the law as required, or face the possibility of imprisonment. The latter is one of the more serious punishments for violating the order as inevitably it infringes on an individual’s Article 5 right to liberty.
Committal to Prison: A Draconian Measure?
The Mareva injunction has evolved considerably into a ‘nuclear weapon,’[2] and therefore any disregard to it or ignorance towards it is taken extremely seriously. Once of the main methods of punishment for contempt of the order is committal to prison, which is legally authorised by the penal notice discussed above. The Mareva is intrusive, and so the violation of it is even more so.
The court will consider both mitigating and aggravating factors. Aggravating factors which heighten the probability of imprisonment include defiance after becoming aware of the injunction and being notified of breaches and continuing to dissipate assets.
The evolving case law imposes a harsh reminder not to disobey and defy court orders. Even though imprisonment is a matter of last resort, the court will not hesitate to impose a sentence of imprisonment even at the first instance in appropriate cases.
Committal to Prison: The Procedure
Legislation
The appropriate legislation governing committal to prison is Order 52 of the Rules of the [Court of Judicature] (Northern Ireland) 1980. This legislation authorises committal to prison for contempt of court. It grants the High Court with fundamental powers to punish an individual when contempt is committed in connection with any proceedings before the High Court.
The punishment for contempt correlates with the Order that was endorsed with a penal notice. If the individual breaches the terms of the specific order, then this warrants Order 52. Each Order differs and is case specific. The committal process is instigated by an Application before the Judge and Court.
The Application
The Application is lodged on behalf of the Petitioner/ Applicant before the Judge. It is often made on an ex-parte basis (without notice) and is supported by an Affidavit which evidences all of the breaches and wrongdoings on part of the Respondent. It will also include a statement containing the name and description of Applicant, and the name, address, and description of person against whom the application is made. In some cases, notice can also be provided to the other party and notice will provide a warning.
Service
Once the Application for committal to prison is granted by the Judge, it is served personally on the Respondent by a process server.
If any of the above applies to you, or if you have growing concerns regarding your assets during Divorce, please call our offices on 02887722102.
[1] Bank Mellat v Nikpour [1985] FSR 87 CA (Donaldson LJ).
[2] Ibid.