In Frejek v Frejek, Roth J dealt effectively with a committal application remotely by Skype and in the respondent’s absence. Roth J found the respondent to be in contempt of court but would not deal with sentencing. Instead, a bench warrant was issued for the respondent to be brought before the court specifically for sentencing.
Case summary and executor removal
This case highlights several practical implications for practitioners. The facts are that Brenda Frejek died in 2009. Her son, Stephen, became executor after he applied for, and was granted, probate of her will. As well as Stephen, other beneficiaries of the estate were his brother, Andrew, and their sister. The siblings received little communication from Stephen and later discovered that their mother’s house had been sold by him.
In June 2017, Andrew applied for an order removing Stephen as executor and for his substitution in Stephen’s place. Notably, Stephen didn’t acknowledge service of those proceedings or participate in them. The removal proceedings went unopposed by Stephen. The court granted Andrew’s application and directed Stephen to transfer all estate papers and funds to Andrew. Stephen was also to swear an affidavit exhibiting the accounts and an inventory of estate assets. Stephen failed to comply with any of these directions.
Andrew later obtained another order requiring Stephen to:
- Produce a statement of account itemising all transactions effected by him as executor.
- Hand over the original grant of probate.
- Disclose the completion statement regarding to the sale of their mother’s house.
- Compile a list of their mother’s household contents and personal effects.
Stephen also failed to comply with any of these ordered steps. However, there was an issue about service being effected on Stephen at a London address where he no longer lived. More attempts to serve papers and the order personally at his new Southampton address proved unsuccessful. Stephen was given more time to engage and respond but he did not. Eventually, Andrew received the court’s permission to serve the order by post.
The committal applications
In February 2019, Andrew applied for Stephen’s committal based on his failure to comply with the earlier orders, albeit this application did not comply with CPR 81. Despite this, from February to September 2019, the application was adjourned several times primarily due to, again, service of papers on Stephen and about concerns of Stephen engaging in the process.
As the first application had become dated, Andrew issued a new application in January 2020. Remarkably, this second application still did not comply with CPR 81 as it contained no penal notice or numbered list of breaches of the court’s order alleging contempt. However, a judge at a hearing in March 2020 summarised the breaches to be determined.
COVID-19 restrictions then kicked in and so the application was to be heard by Skype on 7 May. Again, several attempts by email, including from the clerk to Roth J, were sent to Stephen informing him of the hearing date and inviting him to participate. But Stephen didn’t respond or engage.
The committal judgment
Despite the ongoing COVID-19 restrictions, at the Skype hearing on 7 May 2020, Roth J held that the application for committal could be heard remotely and in Stephen’s absence. Roth J applied a previous case law checklist and satisfied himself that it had been met, particularly with regard to service of documents. Roth J also took into account Stephen’s previous conduct as well as any prejudice to the parties if the Skype hearing did not proceed.
Roth J held that the evidence discharged the criminal standard of proof that Stephen had completely failed to comply with his obligations and, therefore, Stephen was in contempt of court on all grounds raised in Andrew’s second application.
Roth J considered an immediate committal order against Stephen, but held back because it would be an extreme step in his absence. Instead, Roth J directed the issue of a bench warrant, so that Stephen could be brought before the court for sentencing.
This case illustrates the court’s preparedness to conduct committal proceedings remotely during the COVID-19 lockdown. Roth J keenly exercised the overriding objective by weighing up the interests of both parties and administering justice in a fair manner despite the restrictions in place.
Practical implications for practitioners
For private client colleagues, this case will be a reminder about advising client executors/administrators at the outset of the importance of compliance with their obligations, so that the administration of an estate is conducted efficiently, with a view to maximising the value of the estate, and administration is conducted within a reasonable time frame. Don’t hesitate to remind clients about their duties. In doing so you will reduce your own risk.
Service of documents was a feature of this case. If there is any doubt about an address for service, and perhaps even more so in committal proceedings, the cost of instructing an accredited enquiry agent can avoid considerable costs being incurred and additional steps having to be taken. Good service may also avoid an adjournment, which will undoubtedly cause delay.
When dealing with an unrepresented respondent in committal proceedings, both at the pre-action stage and after issuing an application, the applicant’s solicitors should take every opportunity in correspondence to recommend that the respondent seek independent legal advice, inform the respondent that criminal legal aid is available, and provide the respondent with the Legal Aid Agency contact details. By doing so, an adjournment is less likely.
Applicant’s lawyers should ensure that the application is framed correctly and in compliance with the rules. After all, a respondent’s lawyers will look for any breach of the rules, whether it be related to drafting or service, as they and the court will want to ensure that due process has been followed and given the respondent may face loss of liberty or a fine.
Practitioners for a respondent should advise your client that the court will most definitely press on and deal with the application. There is no point hiding from it. So advise client respondents to engage fully and sensibly purge contempt.