Saleemi v Parvez: Executor pays the price

The recent case of Saleemi v Parvez demonstrates just how seriously a court will take a situation in which a fiduciary wrongly retains estate funds.

Mr Parvez was the sole executor of the estate of Leonard Darlow and the claimant, Mr Saleemi, was the sole beneficiary.  The value of the net estate was confirmed in the estate accounts to be £138,201.  Mr Parvez emailed the estate accounts to Mr Saleemi's solicitors but he was then heard of no more and failed to account to Mr Saleemi for the monies due to him from the estate.

Mr Saleemi brought proceedings for Mr Parvez to provide an account of the estate.  Master Brightwell ordered Mr Parvez to provide the account within 21 days and to pay the monies due to Mr Saleemi within 28 days.

The order was personally served on Mr Parvez but he failed to comply with it. As a result, three months later, the order was reissued and this time it was endorsed with a penal notice.  It was again personally served on Mr Parvez and again he failed to comply.

Contempt of court

Mr Saleemi then proceeded to apply to the court to commit Mr Parvez for breach of a court order with a penal notice attached.  He tried unsuccessfully to serve the application personally on Mr Parvez, as he could not be located at the address given in the will and the grant of probate, but it was also sent by email and by post.  The tipstaff (a court-appointed official tasked with enforcing court orders) was unable to find Mr Parvez at his address and those present at the property reported that he had not lived there for several years. The court found that Mr Parvez was evading service.

The question of contempt is assessed at a criminal standard (i.e. beyond reasonable doubt). The court found that Mr Parvez was clearly in contempt – he had been personally served with proceedings with a penal notice and had taken no steps to engage.

12 months' imprisonment

At a later hearing, having established that Mr Parvez was in contempt of court, the judge considered the sentence.  Unusually, the court decided to sentence immediately rather than adjourning to give Mr Parvez the chance to put forward any mitigating circumstances. It held that he had refused to attend court in the face of a bench warrant and that it would be disproportionate to put Mr Saleemi to the expense of another hearing.

Section 4 of the Debtors Act 1869 prevents a debtor being sent to prison for failing to pay up, but there is a carve-out for trustees or fiduciaries, who can be imprisoned for a maximum of 12 months. Having found that the estate money was in the possession and control of Mr Parvez, and that he was in a fiduciary role as executor, the court ordered an immediate 12-month custodial sentence.

The judge found that Mr Parvez had wilfully disobeyed a court order with a penal notice.  He stated that the contempt was aggravated by the fact that Mr Parvez was in a position of trust as an executor.

The judge made it clear that the sentence would not release Mr Parvez from a continuing liability to comply with the court order.  He would still have to repay the estate so that Mr Saleemi did not suffer a loss.

Points of interest

This case demonstrates just how seriously a court will view a deliberate disregard by an executor of their duties.  It also demonstrates that the court will not shy away from giving a custodial sentence in such circumstances.

If you have any questions about executors and their conduct, please do not hesitate to contact Caroline Walford-Cowley.