[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Kimyani & Ors v Sandhu [2017] EWHC 1302 (Ch) (17 May 2017) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2017/1302.html Cite as: [2017] EWHC 1302 (Ch)

[New search] [Printable RTF version] [Help]

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice
		17th May 2017

MR. JUSTICE NEWEY:

1. I have before me a committal application. The application is made in the context of a dispute between the Respondent to the application, Mrs. Devinder Sandhu, and siblings of hers, who are the Claimants. All four are children of the late Darshan Gill. The underlying proceedings concern the estate of Darshan Gill.
2. In March 2017, the Claimants applied for a freezing injunction to be made against Mrs. Sandhu. The application was initially made on a without notice basis to Warren J, who, on 30^th March, granted a freezing injunction with a return date of 6^th April.
3. The matter returned to court on 6^th April before Marcus Smith J. On that occasion, the Claimants were represented by Mr. Gideon Roseman, who also appears for them today. Mrs. Sandhu, who was also present, had the assistance of a representative under the CLIPS scheme.
4. At the conclusion of the hearing, Marcus Smith J granted further relief. His order contained paragraphs dealing with the provision of information. Among other things, paragraph 12.1 of the order required Mrs. Sandhu, by 12 o'clock on 11^th April, to inform the Claimants' solicitors of all her assets worldwide exceeding £1,000 in value. Paragraph 13 provided for an affidavit to be sworn and served by 12pm on 18^th April setting out a variety of matters, including all bank accounts that Mrs. Sandhu had used between the beginning of 2014 and the date of the order, any interests she had enjoyed in property since January 2014 and, of particular significance, by paragraph 13.3:

"the current location of the sum of £270,000 that the Second Respondent states he paid to the First Respondent and/or if the same has been paid into any bank account full details of the said bank account(s). In the event that the First Respondent states that the monies and/or any part of the same have been paid to a third party, she is to provide full details, including their contact details, being their home and/or business address, mobile phone number and email address (if any)."

5. I should add that the "First Respondent" was Mrs. Sandhu and the "Second Respondent" a Mr. Cameron Gill, to whom I shall refer again in a moment.
6. I should also mention specifically paragraph 15 of the order, which required Mrs. Sandhu, by 12pm on 18^th April, to swear and serve an affidavit:

"providing a full and detailed explanation as to the transfer of the First Respondent's interest in the property known as 36 West View, Feltham, TW14 8PR …"

That explanation was to include the following information:

"15.1 the relationship between the First Respondent and Second Respondent, including whether they are related by blood and/or in law;

15.2 whether the transfer between the said Respondents on 26 January 2017 was for any consideration;

15.3 whether if the transfer was for consideration, the method by which the said consideration was paid to the First Respondent; and

15.4 whether if the transfer was for consideration and monies were paid to the First Respondent, the current location of the monies in question, including full details of any bank account into which the same have been deposited, including the name of the bank, the account number, the sort code and the name of the account holder."

7. Mr. Roseman told me, and I accept, that Marcus Smith J took care to ensure that Mrs. Sandhu was aware of the terms of the order, including by asking Mr. Roseman to read it out, with Mrs. Sandhu having been supplied with a copy of it.
8. Paragraphs 13.3 and 15 of the order, as will be apparent, referred to the transfer of a property known as 36 West View and its proceeds of sale. Mr. Gill has explained in an affidavit, sworn on 11^th May, that he purchased 36 West View from Mrs. Sandhu earlier this year. He states in the affidavit that the agreed consideration was a total of £390,000, with an amount of £270,000 to be paid in cash and the remainder to be taken in land in Spain, and that payment of the cash element was to be made in four equal instalments of £67,000. Exhibited to his affidavit are a contract dated 5^th January 2017, specifying the sale price as £390,000, comprising cash of £270,000 plus land worth £120,000, and four cash receipts which appear to evidence four payments of £67,000 each between 7^th February and 9^th March. It is the proceeds of that sale that are at the heart of the Claimants' concerns.
9. As I have mentioned, Marcus Smith J's order provided for certain information to be supplied by 11^th April and affidavit evidence to follow by 18^th April. In the event, neither deadline was complied with and neither information nor affidavit evidence had been forthcoming by 21^st April, when the present application was initiated.
10. The freezing injunction application came back to court on 25^th April, before me. Mrs. Sandhu initially sought an adjournment. She tendered a witness statement, in which she said:

"I was advised that, due to the nature of the case, I require the assistance of a solicitors' firm. In my submission, the freezing injunction should be seen within the context of all parties' actions over the eight years this matter has lasted. I have made certain submissions in my affidavit in response to the freezing injunction dated and filed 18^th April 2017 … but was advised by Mr. Simpson that these should be investigated by a solicitor and supported by evidence."

11. The reference to "Mr. Simpson" is explained by an earlier passage in the witness statement, where Mrs. Sandhu said:

"On 24 April 2017, I telephone Bhogal Partners Solicitors, 174 High Street, Hounslow TW3 1BQ. They were keen to help me and will have represent me if granted an adjournment but they could not react on such late notice. They recommended David Simpson of counsel, whom I contacted yesterday evening."

12. The committal application first came before the court last Thursday, 11^th May 2017. Late in the afternoon of the previous day, the Claimants' solicitors were sent an affidavit of Mrs. Sandhu, together with a letter in which Mrs. Sandhu's solicitors said:

"[Y]ou will note from our client's affidavit that all issues raised in the court orders of 30.03.2017 and 06.04.2017 have been addressed and we do not see the need for the hearing listed tomorrow to go ahead.

We would therefore propose to know whether your clients are prepared to withdraw their said application as listed for hearing tomorrow given that we have not had a response to our previous email referring to the same."

13. The affidavit sought to respond to various provisions in the order of Marcus Smith J. In doing so, Mrs. Sandhu said, in paragraph 6:

'However, I am advised by my solicitors that a contractual right to land is regarded in law as an asset, whether one has received the land. The consideration for the purchase by Cameron Gill of 36 West View, Feltham TW14 8PR … was £270,000 plus the promise of land in Spain to the value of £120,000. I have not been provided with any land in Spain but the contractual right to it exists. I no longer have the £270,000 or any part of it.'

14. In paragraph 11 of her affidavit, Mrs. Sandhu said:

"I repeat that my only asset valued at more than £1,000 is the promise of land in Spain to the value of £120,000."

15. In the course of paragraph 16, Mrs. Sandhu said:

"(a) the £270,000 was paid in cash. It was not paid into a bank account because the Applicants had frozen my accounts;

(b) I no longer have the £270,000 or any of it. £35,000 went to pay off the outstanding mortgage on 35 Spinney Drive, £78,000 went to pay off the outstanding mortgage on 36 West View, and £110,000 was used to pay my husband for his share of 36 West View. I still owe my daughter £110,000. By making the said payments from the £270,000, I have merely satisfied priority claims to the funds, so have not contrived to put them out of reach of the Applicants.

(c) I have apportioned and distributed equal shares in the £53,000 to my four children, as 36 West View had been held on trust for them.

(d) My children have volunteered to help me with legal expenses and have spent £9,000 on my lawyers and will likely have to pay another £12,000 from the £53,000."

16. One difficulty with this as a satisfactory explanation emerges from paragraph 9 of Mr. Gill's affidavit of 11^th May. He said this:

"Following the payment of the monies to Mrs. Sandhu, it was to be arranged by my agent, Vinicius Juan, that Mrs. Sandhu would travel to Spain for the completion of the land transfer portion of the sale/purchase. I now understand, from Mr. Juan, that this did not take place, and that Mrs. Sandhu instead accepted payment of the outstanding amount of £120,000 by bank draft."

17. There was a long list before Birss J on 11^th May and, thus, plenty of time for discussions to take place between the parties. As to those, I have the benefit of evidence from Mr. Paul Prentice, a partner in the Claimants' solicitors. He both supplied a witness statement and went into the witness box to be cross-examined. His witness statement, which he testified to the truth of in his oral evidence, included these passages:

"26. During the course of my discussions with Mr. Simpson [who was Mrs. Sandhu's counsel] he also confirmed that:

(i) he had drafted the Respondent's affidavit on 5 May 2017; and

(ii) at the date of the Respondent swearing the affidavit on 10 May 2017, she was fully aware of the truth of Mr. Gill's affidavit that the Respondent would be receiving a bankers' draft for £120,000, but she was prepared to swear the affidavit stating that this was not the case.

27. I then entered the consultation room with Mr. Roseman and a conference with Mr. Simpson and Ms Dhanjal of Bhogal Partners took place. During this conference, Mr. Simpson made the following statements:

(i) the Respondent did not owe any money to any mortgage company in 2017;

(ii) the Respondent did not pay £113,000 or indeed any other sum to a mortgage company out of the proceeds of sale of the Property;

(iii) the Respondent did not pay £110,000 to her ex-husband or indeed any other sum to him;

(iv) the Respondent had 'in fact' placed £150,000 in a safe that was in her daughter's flat;

(v) the Respondent had paid £120,000 in cash to her daughter;

(vi) the Respondent did not have a good relationship with her daughter and had no access to her daughter's flat or the safe; and

(vii) the Respondent was unable to contact her daughter.

…

29. An hour or so after this conference, Mr. Simpson informed me that the Respondent's son had telephoned her to say that he had taken £60,000 in cash from the safe in the Respondent's flat and would be prepared to return this in a couple of weeks."

18. Mr. Prentice said, and I accept, that these matters were not merely the subject of discussion in the conference room, but were related to Birss J in open court.
19. The matter next came before the court on Monday of this week, that is 15^th May 2017. That same day, Mrs. Sandhu swore a further affidavit, in which she said the following at paragraph 7:

"(g) The property was sold for £390,000.00. I received £270,000 in cash which I distributed amongst my four children equally …

(h) The cash was then given to my children whom have kept it and not misappropriated it. I know they hold their shares. The cash is kept in a safe in the UK at my daughter's house. I implicitly trust my children. I sold my property to assist myself, not for any other reasons. My ongoing legal expenses are funded from this money and any other court costs from the proceeds of sale as and when the orders are made."

20. Also in that affidavit, Mrs. Sandhu said in paragraph 13(b):

"In 2009, I acquired ownership of 36 West View, as part of my divorce settlement. What I was trying [to] explain in respect of this is that I never wholly and absolutely owned this property myself until June 2009 when my divorce was finalised. This property was owned in three equal shares by me, my husband and my daughter as per 1/3 each."

21. Then, in paragraph 14(c) Mrs Sandhu said:

"I have apportioned and distributed equal shares to my four children, as 36 West View had been held on trust for them."

22. Mrs. Sandhu's written evidence was the subject of cross-examination today. In the course of that, Mrs. Sandhu said that she ought to have said that the £270,000 had been put in a safe not to be used and that no one had touched it. She gave the totality of the money, she said, to her daughter. Later in her evidence, however, she explained that there are two relevant safes, one at her daughter's home and one at her son's business address. Her son, she said, had collected three lots of £67,000 from her daughter, one last Thursday and then two more this week. On top of that, it seems that the final amount of £67,000 is intended to be given to the son later this week.
23. Against this background, Mr. Roseman maintains not merely that there has been a plain breach of Marcus Smith J's order but that the breach is of such seriousness as to require an immediate and significant custodial sentence. For his part, Mr. Mark Watson-Gandy, who appears for Mrs. Sandhu, while accepting that there has been a breach of Marcus Smith J's order, put forward in attractive submissions a variety of points which he said mitigated Mrs. Sandhu's conduct.
24. Mr. Watson-Gandy was plainly right to concede that Mrs. Sandhu breached Marcus Smith J's order. The order provided for her to do certain things by 11^th and 18^th April and she entirely failed to do them until 10^th May. That is in circumstances where Marcus Smith J took care to ensure that Mrs. Sandhu was well aware of the terms of the order when he made it on 6^th April.
25. On 10^th May, as I have explained, Mrs. Sandhu swore an affidavit which was supposed to remedy the position and on the basis of which her solicitors suggested that there was no need for the hearing the next day. Had that affidavit in fact complied, albeit late, with Marcus Smith J's order, the matter would be by no means as serious as it is. In fact, however, not only did the affidavit not on its face meet all the requirements imposed by Marcus Smith J, but it has proved to be inadequate and, indeed, false in important respects. Indeed, Mrs. Sandhu admitted as much through Mr. Simpson at the hearing on 11^th May.
26. It will be apparent from what I have said earlier that the affidavit is deficient in its failure to refer to the £120,000 banker's draft. Mrs. Sandhu said that the only asset she had valued at more than £1,000 was the promise of land to the value of £120,000 in Spain, but we know that by this stage, to Mrs. Sandhu's knowledge, a banker's draft had been provided. Beyond that, what Mrs. Sandhu said in paragraph 16 is in key respects simply untrue. The impression was given, I have no doubt intentionally, that Mrs. Sandhu had made "payments from the £270,000" of £35,000 and £78,000 to pay off mortgages and of £120,000 to her husband. The truth was that no payment had been made to any mortgagee and, indeed, that there was no mortgage. Neither has any payment been made to Mrs. Sandhu's husband.
27. Mr. Watson-Gandy suggested that the reference in paragraph 16(c) to the distribution of equal shares in £53,000 to the four children might indicate an infelicity of drafting that could count in Mrs. Sandhu's favour. However, it is apparent to me that the draft refers to a single sum of £53,000, not four sums of £53,000. In any event, I cannot see how any of that can detract from the utterly misleading nature of paragraph 16(b).
28. Matters have been made no better this week. As I mentioned, Mrs. Sandhu swore a further affidavit on Monday, in which she said that the cash had been given to her children and "is kept in a safe in the UK at my daughter's house". If, however, the evidence that Mrs. Sandhu gave orally today is to be believed, even by the morning of 15^th May part of the £270,000 was not kept in a safe at the daughter's house, but, rather, in a safe at the son's business premises to which there had hitherto been no reference and to which there was no reference at all in the most recent affidavit.
29. Mr. Roseman complained that Mrs. Sandhu has given multiple and inconsistent explanations for what has happened and that it is impossible to know what the truth is, but that it is apparent that the Claimants have not been put in a position to test anything that Mrs. Sandhu has said. That seems to me fair comment. Although, therefore, the evidence put in last Wednesday could very substantially have mitigated Mrs. Sandhu's conduct had it in fact been an accurate and frank account of events, it simply was not. Rather, an account of events that was neither frank nor accurate was being used in an attempt to deflect the committal proceedings and, although at that point there was potentially another amount of £120,000 to come by way of banker's draft, Mrs. Sandhu made no reference to it in her affidavit.
30. Aside from the difficulty, given the conflicting explanations, of working out the truth in relation to what has happened to the £270,000, there are particular respects in which, even now, Mrs. Sandhu has not complied with Marcus Smith J's order. Paragraph 13.1 of that order required bank accounts to be detailed. That simply has not happened. Mrs. Sandhu maintains that the Claimants have already been told of bank accounts in previous stages of the litigation. That cannot possibly be a good answer.
31. As to the current location of the £270,000, Mrs. Sandhu was required, in the event that any of it had been paid to a third party, to provide "full details, including their contact details, being their home and/or business address, mobile phone number and email address (if any)". According to Mrs. Sandhu, the money is in the possession of one or more of her children, but no contact details at all have been supplied. Mrs. Sandhu has stated in her evidence that she is concerned for her family's safety. The matters relied on as evidencing that are in key respects disputed by the Claimants, but, in any event, there has been no application to amend the terms of Marcus Smith J's order. I understand, moreover, that the order was made in its present terms without Mrs. Sandhu, who was present in court, objecting to the requirement for the provision of such details.
32. In short, it is abundantly plain and proved beyond reasonable doubt that there was a failure to comply with Marcus Smith J's order. More than that, the purported attempt to remedy matters was in fact flawed and deceitful. Mrs. Sandhu has since given conflicting explanations of events. Further, even now, there are particular respects in which she can be seen not to have satisfied the terms of Marcus Smith J's order.
33. Mr. Watson-Gandy told me that his client is deeply contrite, but I have to say that I see no evidence of that. To the contrary, it seems to me that Mrs. Sandhu's behaviour testifies to a continued disregard of the importance of court orders. It is true that Mrs. Sandhu has admitted a breach of Marcus Smith J's order, but I do not think that that can count significantly to her credit given the other circumstances.
34. There was debate over whether Mrs. Sandhu should be taken to be of previous good character. In my view, I must indeed proceed on the basis that she has no convictions. Mr. Roseman queried that, but the simple fact is that there is no evidence of any conviction at all and no reason to suppose that Mrs. Sandhu has been the subject of criminal proceedings.
35. As to whether Mrs. Sandhu's conduct has caused the Claimants prejudice, since it is not even now clear where the money is, it is hard to be sure of the extent of any prejudice. What is certain is that the Claimants have been put to unnecessary trouble and expense.
36. Mr. Watson-Gandy also drew my attention to medical evidence to be found in the most recent of Mrs. Sandhu's affidavits, that sworn on 15^th May. The exhibits to that include a letter of the same date from a GP explaining that Mrs. Sandhu presented in March of last year with anxiety and depression related to a legal dispute (which must be this one) and, as a result, was prescribed anti-depressants and referred for counselling. The doctor goes on to say:

"I saw her on Friday 12^th May 2017 and she was clinically very low and depressed. She was exhibiting suicidal thoughts (jumping in front of a train) and had a very flat affect.

I was concerned about her mental health and referred her to the on call community mental health team at West Middlesex Hospital in Isleworth for an emergency mental state assessment.

I would be grateful for a formal mental health and psychiatric evaluation before the courts pass judgement."

37. Mr. Roseman pointed out that the visit to the doctor referred to took place only after the hearing before Birss J. He suggested, essentially, that Mrs. Sandhu had been seeking to improve her position in the court proceedings.
38. Two things seem to me to matter. First, it is not apparent from this or any of the other documents that I have seen that there was a good medical reason for Mrs. Sandhu failing to comply with Marcus Smith J's order in the period after 6^th April or, indeed, giving false and contradictory evidence. Secondly, it seems to me that the as yet rather unexplored reference to being clinically depressed and having suicidal thoughts is not a matter of such weight or importance as to justify me in taking a substantially different approach to sentencing.
39. I have been helpfully referred by counsel to case law, notably the decision of Eder J in Otkritie International Investment Management Ltd & Ors v Gersamia and Anor [2015] EWHC 821 (Comm), where the relevant law is usefully reviewed, and the decision of the Court of Appeal in Templeton Insurance Ltd v Thomas & Anor [2013] EWCA Civ 35, where the Court, in the light of serious medical difficulties, ultimately decided that it was appropriate to suspend terms of imprisonment.
40. One point that emerges from the case law is that deliberate breaches of freezing orders are regarded as serious. As Eder J noted, in JSC BTA Bank v Solodchenko & Ors (No. 2) [2011] EWCA Civ 1241; [2012] 1 WLR 350 the Court of Appeal explained that breaches of disclosure orders in the context of freezing injunctions merit "condign punishment", which "normally means a prison sentence". Another point brought out in Eder J's summary of the law is that it can be good practice for the court to make clear, where passing a sentence of imprisonment, what part of it is regarded as punishment alone and what part it is envisaged that the contemnor might ask the court to consider remitting in the event of subsequent, prompt and full compliance.
41. In the present case, I am of the view that the right order has to be an immediate custodial sentence. In all the circumstances, I shall impose a sentence of 12 months' imprisonment. I would envisage, however, that the court might be willing to reduce that sentence by up to six months in the event of full and prompt compliance with Mrs. Sandhu's outstanding obligations under Marcus Smith J's order and adequate co-operation with the Claimants in relation to the safeguarding of the proceeds of the 36 West View property. In other words, it will be open to Mrs. Sandhu to apply for her sentence to be reduced significantly if she now deals with these matters properly.
42. I should further add, out of fairness to Mrs. Sandhu, that it is my understanding that she will be entitled to unconditional release, pursuant to the Criminal Justice Act 2003, once she has served half of her sentence. However, in practical terms, as I have indicated, I am imposing a sentence of 12 months' imprisonment. Mr. Tipstaff, could you please take Mrs. Sandhu into custody.
__________