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James Counsell KC and Alex Haines represented the contemnor in a landmark appeal to the CA

James Counsell KC and Alex Haines, who were instructed by Janes Solicitors, represented the contemnor in a landmark appeal to the CA against the findings of contempt and the sanction imposed. The Court of Appeal gave helpful guidance on when permission to appeal is needed and on the Court’s power retrospectively to dispense with service of the injunction under the new CPR Part 81 regime.

In Hussain v Business Mortgage Finance 4 PLC & Ors [2022] EWCA Civ 1264, delivered on 4th October 2022, the Court of Appeal (Arnold, Stuart-Smith and Nugee LJJ) gave judgment upholding the committal order against the Appellant by Mr Justice Miles and the ensuing 24-month sentence of imprisonment, the maximum term.  The Judgment is available here.

In what will be a leading judgment in this field, this decision clarifies two important issues relating to the Court’s committal jurisdiction under the new CPR Part 81:

1. Whether permission to appeal is required in an appeal against the underlying finding of contempt

The Court held that a contemnor does not require permission to appeal against either sentence or the underlying finding of contempt: “By CPR r 52.3(1)(a)(i) a person committed to prison can appeal the committal order without permission and where, as must happen in a large number of cases, a judge makes findings of contempt and proceeds to commit the contemnor to prison on the same occasion, I consider that that entitles the contemnor to appeal, without needing permission, either the findings of contempt or the sentence or both.  If that is right, it cannot make any difference that in a complex case like the present the findings of contempt are made first, and the sentencing is dealt with in a separate and subsequent hearing” [6].

The position had been far from clear to practitioners as a result of the language of r 52.3(1)(a)(i) (“An appellant or respondent requires permission to appeal where the appeal is from a decision of a judge in […] the High Court […] except where the appeal is against a committal order”).  A narrower interpretation of this provision (see e.g., Al Rawas [2022] ECWA Civ 671) had led many to believe that an appellant could only appeal the sentence aspect without permission.  The CA’s wider interpretation means that, in future, no permission will be required for an appeal against the underlying finding of contempt.

2. The Court’s power to dispense with service of an injunction retrospectively

The new CPR Part 81 – in force since October 2020 – does not contain express provisions on retrospective service, unlike the provisions of the old CPR 81.  The Court concluded that the new rules should not be interpreted as requiring an order dispensing with service of an injunction to have been granted before either the alleged breach or the issuing of the committal application.  Nugee LJ concluded on this issue as follows: “I do not think it is necessary to reach any final conclusion on where the requisite power is to be found. What is clear from the terms of CPR r 81.4(2)(c) and (d) is that the Court does have such a power, whether that is found in CRP r 1.2(b), r 3.1(2)(m), r 3.10, r 6.28 or the Court’s inherent jurisdiction to control its own procedure” [77]; and “In my judgment therefore Miles J was right to hold that the Court had power on the hearing of the committal application to dispense retrospectively with personal service of the Injunction if satisfied (as he was) that Mr Hussain had actual knowledge of its terms before the dates of the alleged breaches”[82].

The decision has already been the subject of legal commentary, for example, please click here.

Find out more

James Counsell KC is widely recognised in the fields of Clinical Negligence and Professional NegligenceFinancial Services and in Personal Injury, acting both for claimants and for defendants.

His financial services work includes claims in the Middle East where he has recently acted for the successful appellant in a high profile, law-changing appeal where the Court went against its previous practice and refused to impose a stay in a case where one party had litigated in the DIFC court and the other in the local courts.

He is also an active member of the BSB Prosecuting Panel and has represented BSB in a number of recent well known cases.

James is a Head of Chambers (Head of Governance).

To find out more, contact Paul Barton on +44 (0)207 427 4907 or Graham Woods on +44 (0)20 7427 4902 for a confidential discussion.

Alex, is a specialist in international law, with particular expertise in the extensive field of international organisations law. Alex was appointed to the Attorney General’s London B Panel of Junior Counsel to the Crown in 2019 and as Sanctions Officer at the Caribbean Development Bank in 2020.

His practice areas include: (i) business crime and corruption including global investigations; (ii) sanctions and export control; (iii) international regulatory and disciplinary proceedings; (iv) institutional law of international organisations including their immunities and international administrative law; (v) international arbitration; and (vi) financial services inquiries (instructed on the Dame Linda Dobbs Review).

Alex was admitted to the New York Bar in 2019 and the Bar of Ireland in 2020. He sits on the Bar Council International Committee and is registered for direct access and qualified for litigation. Before starting at the Bar, Alex worked as an intern at the International Criminal Court in the Office of the Prosecutor in The Hague.

To find out more, contact Sam Carter on +44 (0)203 989 6669 or Colin Bunyan on +44 (0)20 7427 4886 for a confidential discussion.

News 7 Oct, 2022


James Counsell KC

Call: 1984 Silk: 2017

Alex Haines

Call: 2007 (England & Wales); 2019 (New York); 2020 (Ireland); and 2024 (District of Columbia)

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