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Bailey v Bailey (Committal) (Rev1) [2022] EWFC 5

The court was concerned with applications for committal arising out of alleged breaches of several orders, including an order in financial remedy proceedings.

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The first respondent submitted that the judgment in the financial remedy proceedings that gave rise to the order he was alleged to have breached was inadmissible in the committal proceedings. He cited Hollington v Hewthorn [1943] KB 587 for the propositions that findings of fact by earlier tribunals are inadmissible in subsequent civil proceedings because they constitute opinion evidence, and findings made to the civil standard in financial remedy proceedings cannot carry any probative value when determining a contempt application to the criminal standard, and therefore should be excluded.

Peel J reviewed authorities on the rule in Hollington v Hewthorn [1943] KB 587 and found that the judgment in the financial remedy proceedings in the instant case was admissible in the subsequent committal proceedings, for the following reasons:

(1) The court could not make sense of the order from which the committal application sprung without admitting in evidence the judgment which gave rise it.

(2) On the first respondent's case, no judgment in a final hearing conducted according to the civil standard of proof could ever be referred to within subsequent committal proceedings. It would never be open to the court to be referred to the prior judgment upon a subsequent enforcement application of whatever nature. Following the logic through, a substantive judgment including findings as to, for example, periodical payments, could not be before the court upon a variation application under s31 of the Matrimonial Causes Act 1973.

(3) There was no authority before the court where a substantive judgment was ruled inadmissible in a subsequent committal application made in respect of the order springing from that very same judgment, whether in family proceedings or elsewhere in the civil jurisdiction. The brief obiter dicta by Sir James Munby P in Re L (A child) [2016] EWCA Civ 173 at 68 such that "it is possible that the rule in Hollington v F Hewthorn "might in certain circumstances prevent the use in subsequent proceedings of any findings made by the judge at the first hearing" was not authority for the proposition advanced by the first respondent.

(4) The rule in Hollington v Hewthorn is encapsulated in the one sentence of Goddard LJ at 596-597: "A judgment obtained by A against B ought not to be evidence against C".

(5) In all the authorities before the court, the rule had been applied to exclude previous judgments only in cases of separate, distinct proceedings and/or involving different parties. Even then, the authorities demonstrate the earlier decision may be admitted if fairness so requires.

(6) The committal applications before the court were part of enforcement proceedings referable to the financial remedy claims, between the same parties.

(7) Hollington v Hewthorn is not authority for the proposition that the judgment in earlier proceedings between the same parties cannot be admitted in evidence for the purpose of a contempt application arising out of the earlier judgment, and order made thereon.

(8) The foundation of the rule is the fairness of the subsequent trial.

(9) Evidence presented in the earlier proceedings, and the contents of the judgment from the earlier proceedings are admissible in subsequent committal proceedings flowing from the earlier proceedings, and between the same parties.

(10) The weight to be attached to the earlier proceedings, and judgment, will be a matter for the judge conducting the committal proceedings.

(11) None of the above derogates from long established principle that the applicant must prove the alleged contempt of court to the criminal standard.

The court went on to find the respondents were in breach of various orders, and gave each of them custodial sentences.

Case summary by Max Lansman, Barrister, Field Court Chambers

For full case, please see BAILII