final order was made in 2015 requiring the husband (‘H’) to transfer ownership
of a company to the wife (‘W’) (‘the Final Order’). H had given undertakings to
take all necessary steps to ensure that W could manage the company effectively,
which included providing W with all necessary documents and information. H was
also required by two subsequent court orders to produce specific documents for
failed to comply with his undertaking and with the subsequent court orders. W
commenced committal proceedings. H was found to be in contempt of court. The
judge held that the contempt was so serious, persistent and damaging that
despite H’s advanced age of 83, only an immediate custodial sentence was
appropriate. H was sentenced to 14 months imprisonment.
appealed against the committal order. He claimed that the undertaking was
outside the court’s powers, was in any case too vague and imprecise to be the
basis for a committal application, and that he had not in fact breached it. H
argued that the orders were also outside the court’s powers, given that they
were made after the Final Order and that the relevant documents were the
property of the company and/or outside H’s control; and that he had
sufficiently complied with the order. Finally, he argued that his sentence was
conceded that the appeal regarding the undertaking should be allowed, as a ‘pragmatic’ move.
contested aspects of H’s appeal were unsuccessful. Given however that W conceded
that the appeal should be allowed with regard to the committal order resulting
from the breach of the undertaking, this aspect of the sentence was set aside.
had waited far too long to challenge the undertaking, or the court’s power to
make the orders it did in 2015 and thereafter. The delay had caused significant
prejudice to W. Nevertheless, because this was an appeal from a committal
order, the court would address H’s arguments on these issues.
undertaking was not outside the court’s power. Per Moylan LJ (giving the
unanimous decision of the court):
will often form part of a final financial remedy order; will frequently engage
with issues which are outside the scope of the 1973 Act (for the reasons given
in Livesey v Jenkins); and will also typically create obligations which
continue beyond the implementation of the specific provisions of the order made
under the 1973 Act.
per Birch v Birch  1 WLR 2959,
it is not possible to appeal an undertaking. An undertaking is a promise which
is volunteered to the court rather than imposed, and so the court has no power
to impose a variation. The correct process would be to apply to be discharged from
the undertaking, usually by offering an undertaking in alternative language. H
had not done so, and so the undertaking remained in force.
court’s jurisdiction did not end with the Final Order. The subsequent orders
were ‘supportive or ancillary’ to W’s
rights under the Final Order. Further, the court had every power to make orders
in respect of the company’s property when H was being ordered to deliver up
documents to W which he had no right to retain.
argument that the documents in question were outside of his control was without
merit. The order had made clear that H was to deliver up such of the documents
"as are currently in [his] possession, custody or control". Further, one
of the orders contained a recital recording that the husband had "confirmed
that the documents … were available and could be provided".
the sentence that H had received was appropriate in the circumstances of the
case. The trial judge had taken into account the aggravating and mitigating
factors, sentencing policy, and the seriousness of H’s contempt. He had weighed
all of the relevant factors and there was nothing to suggest that he gave too
much weight to some and too little weight to others.