1 Introduction

In this paper, we are looking at a shift in the status and in the nature of a court case which began its journey in private court hearings in the London Family Court, and involved minors – children under the age of 18 – after their parents ended their relationship; relationships may be terminated by divorce after a legally recognized marriage (in a religious ceremony or in a registry office), or by the dissolution of a common law marriage, or by the end of cohabitation, as in this case. The shift in status is the transition from a civil case to a quasi-criminal case, and the change in the nature of the case is from the silence of the proceedings in the family court to the public hearings when the status changed.

The case under discussion is Moutreuil v Andreewitch (or Andreewitch v Moutreuil, depending on the identity of the plaintiff or claimant and defendant in each of the hearings). It involves the break-up of the relationship of Magali Moutreuil and Peter Andreewitch, and the welfare of their children. The couple met in the latter half of the 1990s, and had been living with each other since 1998 in Chelsea, London. The couple decided to separate in 2017. From their relationship were born five children, their eldest being born in 2004. In 2019, after the dissolution of their relationship, the Family Court dealt with the welfare of the children.

The various hearings in 2019 in the Family Division Court concerning the children, then, have not been published due to restrictions imposed on such cases as set out in the Family Procedure Rules [6]. The general rule is that court hearings are to be in public, but a hearing may be in private “to protect the interests of any child or protected party” [6: par. 7.16(3)]. The rules spell out what it means that a hearing is to be in private:

For the purposes of these rules, a reference to proceedings held “in private” means proceedings at which the general public have no right to be present. [6: par. 27.10]

Only the following people may be present:

  1. (a)

    an officer of the court;

  2. (b)

    a party to the proceedings;

  3. (c)

    a litigation friend for any party, or legal representative instructed to act on that party’s behalf;

  4. (d)

    an officer of the service or Welsh family proceedings officer;

  5. (e)

    a witness;

  6. (f)

    duly accredited representatives of news gathering and reporting organisations; and

  7. (g)

    any other person whom the court permits to be present. [6: par. 27.11(2)]

We do have access, nevertheless, to a very small set of extracts from the Family Court proceedings, quoted by judges at the hearings in open court, which amounted to five hearings from February 2020 to November of the same year in three courts, two under two different judges on their own, and the third, the Appeal Court, under two judges. The first published decision is by Justice Nathalie Lieven from a hearing on February 3, 2020 in the High Court of Justice Family Division in London [22], at which the claimant, Magali Moutreuil, alleged that the defendant Peter Andreewitch did not abide by a freezing order, thus committing contempt of court. Andreewitch, at this hearing, was not represented by counsel, but represented himself, an important factor in his subsequent appeal. In her decision Justice Lieven agreed with Moutreuil’s allegations. It is from Justice Lieven’s decision that we may read a number of quotations from earlier hearings in the Family Division: the Freezing Order made by Deputy District Judge David Hodson sitting at Central London Family Court in March 2019, a comment about Andreewitch’s character made by His Honour Judge James Meston in welfare proceedings in the family court in August 2019, and several references to hearings, without any quotation, from late 2019 until January 2020.

Andreewitch then successfully appealed Justice Lieven’s decision in the Court of Appeal Family Division in March 2020 on the grounds that he was not told explicitly that he had the right not to give evidence and thus had the right of silence ([16]; see Sect. 4 below). The case went back to the Family Division court in May 2020 before Justice Stephen Cobb, whose task was the same as Justice Lieven’s in February – to decide whether Andreewitch was guilty of contempt in breaching the freezing order, and if so, what the punishment would be ([23,24,25]; see Sect. 5. below).

Our discussion covers two perspectives on this case. The first (Sect. 3) deals with the possible change in the legal status of the case – from a case dealing with a family dispute as a civil case to a quasi-criminal case in which contempt of court is the issue of contention. The second perspective (Sect. 4) looks at the change in silence from textual silence when the case was being dealt with in the Family Division court to conversational silence when the question of right of silence arose.

However, before discussing the two perspectives, in the following Sect. (2.) I shall summarize the financial dispute between the couple, based on the judicial decision of Justice Lieven from February 2020, repeated in the appeal court decision a month later. It is the financial dispute that is constantly in the background, and the case cannot be fully understood without such a summary.

2 Financial Dispute

The financial dispute involved the shares of a holding company, Pier Investment Company Ltd., whose sole director was Peter Andreewitch. The only asset of the company was the house in Christchurch Street, Chelsea, London, where the couple had been living with their children. The house had been valued at £2.15 million [2], that is about $2.8 million at today’s rate of exchange, and was free of any mortgage [22: par. 5]. Bank accounts of the company and of the couple had to be taken into consideration, too.

Two years after the couple set up home together, in 2000, Andreewitch transferred all the shares of the company to Moutreuil. It is the nature of this transfer that was a central issue in the financial dispute. Andreewitch, who remained director of the company, argued that the reason for the transfer was to “shield my UK properties from future exposure” [22: par. 6]. In the course of the following fifteen years, he filed accounts at Companies House stating that Moutreuil was the beneficial owner of the Pier shares,Footnote 1 and in November 2016 he confirmed that Moutreuil was the only “person with significant control”. The beneficial owner may be the registered legal owner, or there may be a separate legal owner. Moutreuil argued that she was both the beneficial and legal owner, while Andreewitch argued that she was only the beneficial owner. After their relationship broke down, in late 2017, however, Andreewitch “began to insist to [Moutreuil] that she had no rights or interests” in the house [22: par. 6].

Moutreuil, in her turn, argued that all of Andreewitch’s activities until the breakup of their relationship showed that he considered her the sole owner of the shares and the house. This position was made clear in February 2019 in a letter from her lawyers that stated that she claimed ownership. Two days after receiving the letter, Andreewitch purportedly transferred the shares to their eldest son, then aged 15. Following the suspicion that Andreewitch was planning to transfer or had already transferred ownership of the company shares to the couple’s eldest son, a freezing order was imposed on March 22, 2019 by Hodson DDJ of the Family Court; the order involved the financial assets of the couple until the final outcome of the dispute. In addition to the freezing order, an order was issued in November 2019 requiring Andreewitch to produce the bank statements of the Pier Investment Company. These bank statements supported Moutreuil and her legal advisers’ suspicion that Andreewitch had taken money from the company account for his own personal needs. Two months later she applied for Andreewitch to be committed for contempt of court, since he had not complied with the freezing order. Andreewitch immediately applied for a change in the freezing order, which was rejected by Justice Frances Judd of the Family Division.

It is this freezing order that became public knowledge in Andreewitch’s appeal in the Family Division of the High Court in February 2020 against Hodson DDJ’s decision to impose the order. The freezing order, issued in March 2019, publicized by Justice Lieven in her decision on February 12, 2020 (the hearing took place nine days earlier), stated:

Until such time as the parties’ respective claims in these proceedings … have been finally determined by the court, the applicant and the respondent must not in any way dispose of, deal with or diminish the value of the following assets whether they are in or outside England and Wales, namely:-

  1. (i)

    The shares of Pier Investment;

  2. (ii)

    Christchurch Street;

  3. (iii)

    any other income or assets of Pier Investment except insofar as is necessary for Pier Investment to meet its tax or other liabilities.

[22: par. 9]

In the order, the judge, then, listed the sources of financial assets that were frozen, which consisted of the investment company and its assets, that is to say the shares of the company, the house in Chelsea and any other “income or assets”. The order allowed the director of the company, Peter Andreewitch, “to meet its tax or other liabilities” (the freezing order of March 22, 2019 [22: par. 9(iii)]).

This is where problems arose. Justice Lieven in her judgment listed the various breaches of the freezing order, such as making payments to his apparently new partner Ms Metcalfe for rent [22: par. 31], paying more than £20,000 “personal legal fees” (i.e. not directly connected with the management of Pier Investment Company) to four different firms of solicitors [22: par. 32], and making payments to supermarkets for groceries [22: par. 21], that monies had been removed from the bank account that did not cover the company’s “tax or other liabilities”, implying that Andreewitch had used money from the company account for his own purposes. Similarly, in Justice Lieven’s opinion, Andreewitch treated the company account as his “personal piggy bank” [22: par. 11], which included “563 withdrawals” [9].

Andreewitch argued in court under oath that he had the right to be paid an annual salary as company director (£8,500), that he had been repaid loans he had given to the company in the past, and payments had been made for the company’s legal fees. Hence, he argued, all the withdrawals were legitimate. In her conclusion, Justice Lieven rejected Andreewitch’s assertions, since there was no documentary evidence to show that such payments had been made in the past before the case came up. Furthermore, there was no evidence indicating that Andreewitch had ever received a salary from the company. “On the criminal standard of proof,” concludes Justice Lieven, “I have found that the Defendant did breach the Order, and did so in deliberate and full knowledge that he was in breach of it” [22, 23]; see Sect. 5 below).

3 The Change from Civil to Criminal Law: A Semiotic Analysis

In this article I am looking at two changes – one in the type of law and the second in the type of silence. These two changes occurred almost simultaneously. The first in time was the change in status from a typical case in civil lawFootnote 2 – family law is a sub-type of such law – to at least a quasi-criminal status, where a party in a civil action is liable to imprisonment because of contempt. The second change – in the type of silence – emerged in the hearing in Justice Lieven’s court in February 2020, and in Andreewitch’s subsequent appeal to the Appeal Court in March 2020.

In this section, I shall look at the change in legal status, which took place in January 2020 when Moutreuil applied for Andreewitch’s committal for contempt of court, a fact that was made public a month later in Justice Lieven’s court. This change in the Moutreuil v. Andreewitch case may be analyzed semantically in terms of “the semantic, or paradigmatic, relationship of a given element” [4: 84], so a paradigmatic relationship is generated between civil and criminal. This may be seen in the form of a semiotic square, following Greimas and Greimas and Rastier [7, 8]:

figure a

Through their paradigmatic relationship, then, civil law and criminal law are contraries [10]. A legal situation could either be civil such as contract law, tort law (e.g. trespass, negligence and defamation), and family law (as in our present case), i.e. the type of law that applies to individuals, or be criminal where a person has perpetrated a crime. In criminal law, one of the two parties to the dispute is the state itself. If these two types are the only possibilities, then a court case can be either civil or criminal.

The contradictories of “civil” and “criminal” are the sub-contraries “non-civil” and “non-criminal” respectively. A court case, however, may be both non-criminal and non-civil; such a situation would include constitutional law and other administrative laws, such as questions concerning the European Convention on Human Rights (e.g. [[20]), Brexit (e.g. [27]), and health care (e.g. [26]). If a dispute arises on the constitutional or administrative level, the court would have to decide what the solution is, but no-one is usually accused of a crime, and no-one has to pay damages (though legal costs may be imposed on one or both of the parties involved). If the court decides in favour of the claimant, then the situation has to be restored to the status quo ante by, for example, a writ of certiorari.

If the sub-contraries may work together, may this be said, too, of the contraries? Can a case belong to both the civil and the criminal areas? Despite their paradigmatic relationship, the answer is, in fact, in the affirmative: proceedings against contempt of court work in both areas – civil and criminal. The court may issue orders to one or both sides, which have to be complied with. If they are not, then punitive measures may be taken, such as imprisonment, which is of course a criminal remedy.

This issue has been discussed in court cases as well as in the relevant legal literature on contempt. Arlidge, Eady and Smith (2005Footnote 3) [5], one of the leading books on contempt of court in England and Wales, devote an entire chapter to “Distinctions between criminal and civil contempt” [5: Chap. 3]. They maintain that the reasons for contempt jurisdiction are based on public policy, in particular on “the protection of the administration of justice and the maintenance of the court's authority” [5: 144]. Judicially, this has been summed up by Lord Justice Cyril Salmon in the 1972 case Jennison v Baker [19]:

An injunction is granted and enforced for the protection of the plaintiff. The defendant who breaches it is sent to prison for contempt with the object of vindicating (a) the rights of plaintiffs (especially the plaintiff in the action) and (b) the authority of the court. The two objects are in my view inextricably intermixed.

However, Arlidge et al. seem to be unsure of whether civil contempt is in fact criminal. They reject the concept of “quasi-criminality” arguing that it “has long been recognized … that civil contempts do not necessarily, or even generally, entail criminality” [5, 15], depends entirely on “the procedure by which it is pursued” [5: 167]. After rejecting definitions of crime that seem to distinguish between crimes and other wrongs “by reference to the sort of thing that is done or the sort of physical, economic or social consequences that follow from it” [15: 123], Williams concludes that a crime “must be defined by reference to the legal consequences of the act. We must distinguish, primarily, not between crimes and civil wrongs but between criminal and civil proceedings” [15, 11], Williams maintains that the test is insufficient, since

there is no way of distinguishing between the punitive fine and the civil penalty except in terms of procedure. There is also some difficulty in distinguishing between punitive imprisonment and civil coercive imprisonment;… [15: 130]

It is “procedure [that] comes to the rescue” [15: 130].

Although Williams does not refer at all to contempt of court as an example that illustrates the difficulty (his focus is on criminal acts and wrongs in tort), the phrase “civil coercive imprisonment” certainly covers the legal issue discussed here.

This stand may be illustrated by the arguments emerging from a 1970–1972 case Comet Products UK Ltd. V Hawkex Plastics Ltd. [17]. The case was initially one concerning patents. However, the question arose whether the defendant, Christopher Hawkins, director of the firm Hawkex Plastics Ltd., had the right to refuse to give evidence (thereby having the right of silence; see below 4.). In their judgment, the court rejected the submission of the plaintiff’s counsel that in a case of civil contempt, the defendant can be made to give evidence “even against himself” [17: 697]. In the words of the Master of the Rolls, Lord Denning, who wrote the main judgment (with added comments by the two other judges):

Although this is a civil contempt, it partakes of the nature of a criminal charge. The defendant is liable to be punished for it. He may be sent to prison. The rules as to criminal charges have always been applied to such a proceeding. … it must be proved with the same degree of satisfaction as in a criminal charge. It follows that the accused is not bound to give evidence unless he chooses to do so. [17: 697]

Despite what Arlidge et al. [5] maintains, one of the other judges in the case, Lord Justice Geoffrey Cross, asserted that “one must bear in mind that even civil contempt has a quasi criminal aspect” [17: 701].

Historically, one of the criteria for distinguishing criminal from civil contempt was in the possible sanctions (cited by [5, 15] above)::

Criminal contempts were punished by imprisonment for a fixed term and/or a fine. Civil contempts were dealt with by imprisonment for an indefinite period: the contemnor was released when he had purged his contempt.

In both cases, however, the maximum time in prison is two years (Contempt of Court Act 1981, Sect. 14) and/or a fine. It follows from this discussion that the two contraries, “criminal” and “civil” may be applied simultaneously to certain types of legal situations, including contempt of court, as in our case.

To return to the case Moutreuil v. Andreewitch, and to Justice Lieven’s discussion in February 2020, the refusal to comply with the freezing order, and “any other court order in civil litigation” [22: par. 17], constitutes contempt of court, in this case civil contempt. It is primarily a means of forcing the defendant (as in our case) to comply with court orders. It is not a crime in se, but it is punishable up to two years in prison. Justice Lieven discussed the legal position of contempt in civil cases. She wrote:

In order to establish contempt, it is not a requirement to demonstrate that the contemnor intended to and/or believed that the conduct in question constituted a breach. It is sufficient merely to show that the contemnor deliberately intended to commit the act/omission in question. [22: par. 18]

The punitive consequence of contempt of court was one of the factors that led to a potential instance of conversational silence in the form of the right of silence.

4 Textual Silence and Conversational Silence

According to a typology of silence that has been proposed [12], four types of silence have been identified. Firstly, conversational silence: this is the type of silence that is generally discussed in the field of conversational analysis. It covers phenomena, often in dyadic interaction, i.e. with two participants only, such as the non-participation of a person in a conversation even when s/he is physically present, or silence in a question/answer exchange when a person does not answer a question put to him/her. The silent answer to a question is usually at the heart of the right of silence of someone accused of a crime – the refusal of an accused person to respond to questions put by the police and by the court. The law lays down that the suspect or the person being questioned has the right to keep silent and must be told of this right. The Miranda warning in the United States is a clear step in establishing this right, while in England and Wales the situation is similar, though changes were made in the warning following the Irish troubles in the 1980s. Today, a person entitled to be silent is told of his/her right but is also warned that there may implications:

But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.Footnote 4

The second type is what may be called textual silence, which usually occurs in a situation in which the silent person (persons) in a given context reads a particular text in silence. The context may be one’s own home, the library, a place of worship and so on. While reading silently at home is not part of social interaction, a library, on the other hand, is a social setting where people sit down in one location, and read silently whatever they decide to read. In the library, the rule is that silence reigns (whether this rule is observed or not is another matter). The length of the silent reading depends on the length of the text being read. It may be a news report in the newspaper, an article in an academic journal or a recipe for a cake. However, the silent period may extend beyond the time it takes to read the text or texts, as in the case under discussion.

The third type of silence is situational silence in which a large group of people do not speak. Such a silence is normally institutionalized, such as the annual moment of silence (one or two minutes) on a remembrance day for the war dead, e.g. Armistice Day (UK) or Veterans’ Day (USA) on November 11 [3]. The fourth type in this typology is thematic silence. This term refers to a dyadic or multi-party verbal interaction where a speaker is silent about a particular topic or theme. This type is of course not actual silence, since someone does speak, but metaphorical silence [13, 14].

In the early stages of the proceedings in the Family Court, we have a situation of textual silence. That is to say, there are texts which are read by those involved in the court proceedings, but these texts are silenced outside the courtroom. They cannot be published as court judgments. What this means in effect is that the hearing proceeds as usual, a court transcript is produced, and a judicial decision may be delivered. All this will probably be in writing (printed or in digital form, or in both). But the only people who can read the documents are those listed (a) to (g) in Sect. 1 above [6: par. 27.11(2)]. This silencing of the texts may be seen in a simple model:

$${\text{stimulus}}-{\text{silencing}}-{\text{silence}}$$

In our case, the stimulus is the involvement of minors – the children of the couple. Specific mention of them is silenced by the Family Procedure Rules ([6]; see Sect. 1 above), and the result is textual silence – the proceedings of the various court hearings may not be made available to the general public.

However, once the issue of children had been dealt with, there were other matters which may be disclosed to the public, in which the stimulus was no longer affected by a silencing agent (in our case, the Family Procedure Rules [6]). In order to protect the financial assets the couple might or might not possess in common, the court also had to deal with the financial implications emerging from the end of the relationship. It is the result of the financial dispute that the case came out in the open, that the case was no longer an instance of textual silence. The stimulus to silence the texts – matters involving minors – no longer held.

At this stage, then, we no longer have comprehensive textual silence in a case that had begun as a series of private hearings in the Family Division. What has been made public are the financial dispute between Moutreuil and Andreewitch, and a “judicial” comment on the character of Peter Andreewitch given by James Meston HHJ dated August 24, 2019 in the Welfare Proceedings in the Family Division, and cited by Justice Lieven:

At times he was evasive in response to cross examination; and as the hearing proceeded, I had increasing reservations about the credibility of the father and came to find his explanations and justifications to be implausible and unconvincing. [22: par. 4]

The hearing in February 2020 in Justice Lieven’s court (High Court of Justice: Family Division) related to Moutreuil’s application for committal against Andreewitch. She was represented by counsel, while Andreewitch defended himself without counsel. In paragraph 13 of her decision, Justice Lieven spelled out the law concerning committal for a breach of an order, as found in the Family Procedure Rules:

  1. (1)

    If a person –

    1. (a)

      required by a judgment or order to do an act does not do it within the time fixed by the judgment or order; or

    2. (b)

      disobeys a judgment or order not to do an act

then, subject to the Debtors Act 1869 and 1878 and to the provisions of these Rules, the judgment or order may be enforced under the court's powers by an order for committal.

[6: Part 37]

Moutreuil’s counsel stated that she, though, “was not seeking an order to commit the Defendant at the hearing, but rather sought findings in respect of breach of the Order [22: par. 2], and the final decision would be postponed till a further hearing. At the beginning of the hearing, Justice Lieven advised Andreewitch that, since he represented himself, “he had a right to be represented and a right of legal aid”, to which he responded that he “wished to proceed with the hearing, and was fully aware of his rights”. He handed over written submissions to the judge, and also gave oral evidence on oath (see below for part of the exchange).

Justice Lieven also supported Moutreuil’s proposal to delay deciding on the actual sanction “to give the Defendant an opportunity to purge his contempt” [22: par. 19], supporting this by citing relevant cases. Lieven’s judgment concluded with clear support for Moutreuil’s contention that Andreewitch was in breach of the freezing order, and that he had committed contempt of court.

Andreewitch appealed this judgment in the High Court of Appeal in front of Lord Justices Peter Jackson and Andrew Popplewell in March 2020. This time he was represented by counsel. He had obviously taken legal advice after the February hearing, with his counsel and the firm of solicitors advising him to appeal on the basis of “procedural irregularity in the committal hearing, namely that as an unrepresented litigant he gave evidence without having been informed of his right to silence” [16: par. 1]. The hearing in the Appeal Court was not concerned with the question whether Andreewitch had taken monies from the company bank account, thereby breaching the freezing order. Out of the seven grounds for the appeal, the court dealt only with the particular issue of Andreewitch’s right of silence. The question of breaching the freezing order would have to be discussed when the case returns from the Court of Appeal to the Family Division of the High Court.

Lord Justice Jackson, who delivered the judgment with Lord Justice Popplewell concurring, cited the transcript of the trial in the Family Division court in which Justice Lieven told Andreewitch what his rights were. What follows is the short trilogue between Justice Lieven (“Judge”), Andreewitch (“PA”) and Moutreuil’s Counsel:

JUDGE … Mr Andreewitch, you are entitled to legal representation and, indeed, because this is a committal you are entitled to legal aid. Are you aware of that?

PA: Yes, your Ladyship, and I have waived my right to have a legal representative.

JUDGE: All right. So - this is very important as far as I am concerned, I can record that I had informed you that you have a right to legal aid and you have waived your right to legal representation.

PA: But since we are here today and there is no lawyer for me, we would have to adjourn again and ---

JUDGE: We would. Well, it is up to you. You have an absolute right to legal representation because this is a committal, and you have a right to legal aid.

PA: Yes. I - I understand, your Ladyship and I prefer we continue.

JUDGE: All right. [16: par. 4]

Moutreuil’s counsel then raised the question of Andreewitch's "Note":

COUNSEL: --- you will have seen that Mr Andreewitch submitted a document that he described as a note but the end of it says, "I confirm the contents of my statement are true". What I would propose to do is to have Mr Andreewitch sworn in on the contents of that note because that sets out, to the extent that there is a discernible defence, his defence and then that would give me the peg on which to hang oral evidence in cross-examination.

JUDGE: Do – do you understand, Mr Andreewitch? You have made this statement – I perfectly understand you are representing yourself – but strictly speaking it is not a sworn statement at the moment. So what I would ask you to do is, when I come back from having read Ms Moutreuil's first witness statement, [to] ask you to go into the witness box and swear to the truth of the contents.

PA: Yes.[16: par. 5]

It was then Andreewitch’s agreement to go into the witness box and ensure that his Note become evidence that eventually led to the issue of his right of silence. Since Andreewitch appeared in court as “a litigant-in-person”, Justice Lieven should have first explained to him that “in a committal proceeding I was not obliged to give evidence at all. I was given no such warning. To the contrary, I was asked to give evidence and was immediately cross-examined” [16: par.7].

Andreewitch’s counsel “makes the simple case that a defendant in criminal proceedings and a respondent in contempt proceedings has a right to remain silent and that this right lies at the heart of the notion of fair procedure” [16: par. 8]. This created Andreewitch’s “quasi-criminal status”. He was not the defendant in a criminal case – say, but a party in a civil case. However, committal for contempt of court carries with it all the rights of the defendant in a criminal case, including the right not to give evidence, i.e. the right of silence.

The argument of Moutreuil’s counsel was that “if there was a procedural defect, it was a technical one and should be waived” [16: par. 10], citing a paragraph of the Practice Directions:

The court may waive any procedural defect in the commencement or conduct of a committal application if satisfied that no injustice has been caused to the respondent by the defect.

He then cited cases where the right of silence is maintained in cases of contempt, but distinguished the present case from the other cases, since the appeals in the cases were allowed on a number of counts, not only because of the lack of mention of the right of silence. It can be argued, then, that mishaps in legal technicalities do not necessarily change the final outcome. Justice Cobb, in his judgments in the subsequent sessions of the case (in May, July and November 2020 [23,24,25]; see below 5.), came to more or less the same negative assessment of Andreewitch as Justice Lieven had reached in her judgment in February. We find a similar situation in the well-known American criminal case Miranda v. Arizona from 1966 [21]: after his conviction was quashed by the Supreme Court because he was not informed of his rights, including the right of silence, Miranda was retried, convicted, and sent to prison for 20–30 years, the same sentence he had received at the original trial.

The Court of Appeal, however, pointed out that despite Justice Lieven’s careful way of approaching Moutreuil’s application concerning committal – “[h]er judgment contains a methodical checking of the procedural requirements that were satisfied” [16: par. 22], “[i]t is unfortunate that she was not also reminded of the need to inform [Andreewitch] of his right not to give oral evidence”. He then cited a 2016 case In the Matter of L (a child) [18], which presented a list of nine issues that have to be brought up in any committal proceedings. The sixth and seventh matters in the list are:

  1. (6)

    Whether the person accused of contempt has been advised of the right to remain silent.

  2. (7)

    If the person accused of contempt chooses to give evidence, whether they have been warned about self-incrimination. ([16: par. 22], citing Theis J [18: par. 78])

Following this judgment, the case of Moutreuil v. Andreewitch went back to the Family Division courts.

5 The Post-Appeal Court Hearings

To complete the narrative of the published judicial decisions of the Moutreuil v. Andreewitch case, let me summarise the subsequent events. In May 2020 the case came before Justice Stephen Cobb in the Family Division of the High Court [23]. This time, Andreewitch was represented by counsel, and so was Moutreuil, as at previous hearings. Justice Cobb of course was careful to follow the procedure laid down in previous cases and by the Appeal Court in March. Andreewitch wished to give evidence, so in his judgment the judge stated explicitly:

Given the circumstances in which this case has required a re-hearing [after Justice Lieven’s judgment was set aside on appeal], I nonetheless explicitly advised [Andreewitch] that he was not obliged to give oral evidence, acknowledging that '[t]he right to silence is a core element in criminal proceedings and proceedings of a criminal character' (citing the Appeal Court’s judgment)…; I further warned him of the potential for adverse consequences or inferences from exercising that right to silence. [23: par. 10]

To this was attached a footnote: “Rule 37.27(2) of the Family Procedure Rules 2010, and CPR r 81.28 provide that at a committal/contempt hearing the respondent is entitled to give oral evidence, whether or not s/he has filed or served written evidence and, if doing so, may be cross-examined.” Since Andreewitch wished to give evidence under oath and consequently be cross-examined by counsel, the judge was presented with a full picture of the situation from the perspective of both sides to the dispute – from the perspective of the claimant Margali Moutreuil and that of the defendant Peter Andreewitch. The judge analyzed the claims of Moutreuil that Andreewitch had breached the order by withdrawing from the bank account of Pier Investment Company monies that he was forbidden to do so, and Andreewitch’s responses to these accusations. Despite the enormous bundle of papers (over 750 pages) submitted by Andreewitch, there was not one document that supported his claims that he had been regularly paid a salary, or that he had given loans to Pier Investment Company, which were then paid back by transfer of money to his own account. The judge concluded that.

  1. (i)

    [Andreewitch] breached the 'freezing order' of 22 March 2019 by making/procuring the transfers/payments set out in [Moutreuil]'s amended Application Notice (27 April 2020).

  2. (ii)

    Such breaches were deliberate, that is to say that I am in fact satisfied that Andreewitch made/procured the payments knowing that they were in breach of the freezing order. [23: par. 37]

Justice Cobb had at least two more hearings on this case. In July 2020, Justice Cobb gave judgment on the financial dispute [24]. Among the declarations were:

  1. (i)

    A declaration that the Claimant is the sole beneficial owner of the entirety of the shares in Pier…

  2. (ii)

    An order requiring the Defendant to register the shares in the Company in the Claimant's name and to take (or procure the taking of) all necessary steps in order to achieve that outcome.

The question of sanctions against Andreewitch for contempt was held in November 2020 in which the judge did not want to commit Andreewitch to prison; neither did Moutreuil. He concluded:

I propose to order that [Andreewitch] shall pay [Moutreuil]'s costs of this application on an indemnity basis …; these costs shall be the subject of a detailed assessment, including a publicly funded assessment of [Andreewitch]'s costs, if not agreed. [25: par. 18]

The case was reopened in June 2023 when Andreewitch claimed that Moutreuil had promised he would not be left destitute after he had lost all his property to her. “The judge dismissed his arguments”, ordering him, too, to pay all the legal costs (about £318,000) [1]. However, let us close the narrative at this point, since it involves neither contempt of court nor silence.

6 Conclusion

In this paper I have analyzed two aspects of one court case, Moutreuil v. Andreewitch, a case that started in private proceedings in the London Family Court and concluded in the High Court Family Division sidetracking, as it were, for one hearing to the Appeal Court. The two aspects involve the change of status of the case from a civil case to a (quasi-)criminal case, since the issue of contempt of court emerged. This aspect was analyzed through the use of the Greimasian semiotic square.

The second aspect is the change in the nature of silence. Since the case began in the family court and concerned young children, it was not publicized. It was silenced in that any text emerging from the proceedings may be read by parties involved, as set out in the Family Procedure Rules, but they, as it were, read it in silence; this is an instance of textual silence. Once the case became publicized, the use of right of silence arose from the first public hearing in which contempt of court was the issue. It may be argued that court proceedings and remedies may determine whether a case is civil or criminal. The right of silence is a topic linked primarily to the proceedings of criminal cases, and punishment for contempt of court may be imprisonment and/or fine, both remedies linked closely to criminal proceedings. This links the two aspects; although the question of contempt of court and its remedy chronologically preceded the change in type of silence, they are intertwined in the case itself.