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The Defendant was subject to an injunction which restricted his use of the Claimant’s documents in proceedings. Contrary to the Claimant’s solicitor’s understanding, the injunction did not prevent the identification of the Claimant.
The Defendant was accused of providing an exhibit he had introduced into proceedings to a US attorney who then made use of it in proceedings in the United States. The Claimant brought a contempt application on the basis (1) that the Defendant had disclosed the document to the attorney after the injunction was imposed; and (2) that the Defendant had revealed the Claimant’s identity.
The contempt application was defective in that it didn’t comply with CPR r.81.4 and failed to properly set out the case against the Claimant.
More fundamentally, the application was founded on an incorrect reading of an injunction and the conduct alleged was not capable of amounting to a breach even if proved. The document was a defendant’s, rather than the claimant’s document and therefore was not subject to the injunction. Further, there was no prohibition on identifying the Claimant because either the claimant’s lawyers or the Court had deleted the relevant provision from the model order which would have imposed such a prohibition.
The Claimant’s lawyers had stringently accused a US attorney of breaching a High Court Order, and their misunderstanding of the injunction led to an entirely misconceived application in the United States for the attorney to be removed from a US court case. As the Judge put it “[the Claimant’s solicitors] pursued [a US attorney] with allegations of the most serious of professional misconduct in circumstances where, on the evidence I have seen, it appears clear that she has done nothing wrong”
The contempt application was summarily dismissed by Nicklin J.
The case gives rise to two lessons for lawyers conducting contempt proceedings.
(a) Firstly, lawyers have a duty to ensure that the conduct alleged actually amounts to a breach before bringing contempt proceedings.
(b) Secondly, it is important to comply with the requirements of CPR 81.4 and in particular, it is never advisable to simply refer to the evidence submitted in support of a contempt application in an N600. Instead, it is essential for the form to contain sufficient information for the accused to know and meet the case against him.”
Please click here to read the full case.
Joshua Hitchens practices primarily in the crossover between Commercial and Public Law. He has advised the Bank of England, the Government of Jersey and financial institutions on high profile and high value sanctions matters. He also has experience of advising on Banking Resolution and Regulatory matters.
He also has particular expertise in Human Rights Law and is a member of the Equality and Human Rights Commission Panel of Counsel. He regularly appears in the High Court, Court of Appeal and Privy Council, both on his own and led by King’s Counsel in public law cases.
News 22 Nov, 2022