Court of Appeal overturns committal for contempt for alleged breaches of an injunction on the basis of procedural irregularities

Dan Tench

In Inplayer Ltd (formerly Invideous Ltd) and others v Thorogood the Court of Appeal overturned two convictions for contempt against the first defendant on the basis of procedural irregularities.

The first defendant had been a director and a minor shareholder of the first claimant, subject to a shareholders’ agreement. He had left and set up a competing business.

The claimants obtained an interim injunction restraining the first defendant from carrying the competing business on the basis that he had been in breach of his duties as director and that the new business constituted a breach of provisions of the shareholders’ agreement. The order also required the first defendant to provide and swear an affidavit detailing each and every breach by him of the shareholders’ agreement. He duly provided an affidavit.

The claimants shortly afterwards considered that the first defendant was failing to comply with the injunction and sought to commit him for contempt. Specifically, the bases on which they sought to commit the first defendant were had been carrying on a competing business and had failed to take reasonable steps to ensure that the other defendants complied with the court’s orders. After an adjournment, the committal application was heard at the trial of the action.

In respect of the allegations of contempt, Mrs Justice Rose dismissed the two allegations advanced by the claimants but in her judgment found the first defendant guilty of two other charges of contempt, that is that one paragraph of the affidavit was “untruthful and a deliberate act of disobedience” and another paragraph was “deliberately untrue and misleading”.

The Court of Appeal, with Lord Justice Jackson giving the leading judgment, overturned the conviction for contempt on three grounds.

First, the allegations on which the first defendant had been convicted had not been put to him in advance of the judgment and he had not had an opportunity to address them. That was a breach of Article 6 of the European Convention on Human Rights and the first defendant’s rights at common law. It did not matter that the allegations were very strong. A judge must confine himself or herself to the allegations of contempt which are alleged in the application notice. If other alleged allegations of contempt fall to be considered, the correct course is to amend the application notice and allow any necessary adjournment.

Second, by hearing the committal for contempt with the full trial, that in effect compelled the first defendant to give evidence (at part of the full trial) which breached his right to silence on the committal.

Third, the first defendant had not been informed of his right to obtain legal aid in respect of the committal proceedings. That again breached Article 6 and the common law requirement for fairness.

The case is a ready reminder of the strict procedural requirements which arise on a committal for contempt arising out of a breach of an injunction. A committal is in effect a criminal process and the contemnor is entitled to significant legal safeguards. Any failure of comply with those safeguards may lead to the contemnor being able to overturn any conviction.

Inplayer Ltd (formerly Invideous Ltd) and others v Thorogood [2014] EWCA Civ 1511

Post By Dan Tench (8 Posts)

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