In a recent case, which comes as the latest in a series of decisions relating to a breach of trust, the Jersey Court was asked to consider whether Camilla de Bourbon des Deux Siciles had purged the contempt of court in which she had been held for nearly two years arising, inter alia, from a failure to provide disclosure of assets (Representation of BNP Paribas Jersey Trust Corporation Limited [2020]JRC267]. In short, the Court found that she had not purged her contempt and handed down the largest fine ever imposed for contempt of court in Jersey, in the amount of GBP 2 million, together with a punitive costs order. Furthermore, if the fine is not paid within two months of the judgment, she shall be committed to prison for 12 months should she return to the island.
Civil or criminal?
Although the contempt may arise out of civil proceedings, contempt of court is a criminal matter. The criminal nature of the breach demonstrates how seriously the court views such matters. The courts view the sanctity of their orders as a bastion of civilisation: in a Canadian case which has been referred to by the Jersey court, it was put thus: To allow court orders to be disobeyed would be to tread the road toward anarchy. “If orders of the court can be treated with disrespect, the whole administration of justice is brought into scorn … If the remedies that the courts grant to correct …. wrongs can be ignored, then there will be nothing left for each person but to take the law into his own hands. Loss of respect for the courts will quickly result in the destruction of our society” (Canada Metal Co. Ltd v. Canadian Broadcasting Corporation (1975) 48 DLR 3d 641). Accordingly, while it may appear that many are not forced to face the consequences of their actions, the courts still hold parties to account in the most stringent terms available to them: by depriving parties of their liberty in the most egregious of instances, as well as through significant fines.
The standard of proof needed in order to demonstrate contempt is that applied in criminal cases, namely that there be proof beyond all reasonable doubt that the relevant party is in contempt of a court order. The burden of proving the contempt falls upon the party alleging that there has been contempt. Court orders however are by necessity clearly drawn, and it will usually be a relatively straightforward matter to establish whether a party is in contempt of such an order, albeit it will need to be established beyond reasonable doubt.
Having found a party to be contempt, the Court then must consider a suitable sanction. There is no statutory limit on the level of fine that the Jersey Court can impose for contempt. The court will however, in appropriate circumstances, allow the party in contempt time to attempt to purge the contempt, and show contrition. It has also demonstrated that it will give a party in contempt notice of what sanction might be imposed should they fail to comply with the court’s order, for example, Camilla was warned by the court that she faced a fine running to the millions.
The quantum of each fine will depend upon the particular factors of each case. As such, the Court may impose such a fine, in conjunction with a punitive costs order and imprisonment if deemed appropriate, so as to address the underlying object of the contempt jurisdiction, namely to protect the public interest and enforce the supremacy of law as well as to address the seriousness of the contempt. In order to impose a sanction which is appropriate in all the circumstances, the Court will consider a number of factors, such as the seriousness of the breach, whether there have been repeated breaches, whether the party in contempt has shown contrition or a lack of remorse, whether the party in contempt was previously of good character, the length and nature of the contempt and, importantly, the means of the party. In that respect, the party in contempt will have the opportunity to submit evidence of their means, but if they fail to do so the court will draw its own conclusions and make a realistic estimate.
The effect upon a non-resident litigant in contempt
Usually in civil matters, the Court’s most serious order in its armoury is a form of freezing injunction, further to which assets are frozen and accompanying disclosure orders are served against custodians. Where a party is in contempt however, the Court may, in the most stringent of cases, impose a custodial sanction. Where a party is non-resident and an order is made for their imprisonment, they will not be able to travel to the island without fear of arrest.
Any fine imposed in the context of a finding of contempt will have to be paid to the Court; it is a separate jurisdiction to that of the underlying cause of action as between the parties. Accordingly, in order to purge the contempt, not only does any fine and punitive costs order need to be paid, but also the underlying original order will need to be complied with, to the satisfaction of the court.
Thankfully, the Court does not have to deal with contempt hearings arising from civil matters that often. The last reported case before the present case was in 2007, when the court issued a fine of £30,000 together with a punitive costs order of approximately £300,000. In that instance, the court proceeded on the basis that the party in contempt had means of approximately £5m. The fine ordered against Camilla is significant for not only its severity but also for the default provisions of imprisonment should the fine not be paid.
Conclusion
The court will always be reluctant to use its draconian powers, but by the same token, parties who come before the court are expected to abide by its orders. This recent case is a useful reminder to all litigants of the potential consequences at stake should they be tempted to disregard a court order.
