Committal following breach of an injunction unduly lenient (AAA and BBB v CCC)

Dispute Resolution analysis: The Court of Appeal has deemed an order made following a successful committal application to be unduly lenient and has remitted the matter back to the Court below for sentencing.

AAA and BBB v CCC [2022] EWCA Civ 479

What are the practical implications of this case?

This is an interesting case which considers both the appropriate punishment for a Court to impose when faced with a contempt of court in the form of deliberate, serious and repeated breaches of an injunction and also the appropriate procedure for appealing orders made in committal applications. The Court observed that the statutory basis for an appeal in cases of contempt of court is section 13 of the Administration of Justice Act 1960. The procedure in respect of committal applications is found in CPR Part 81. However, Part 81 is silent on the question of appeals and it fails to cross-refer to any other applicable rules which set out the procedure to be followed in the event of an appeal under section 13 of the Administration of Justice Act 1960. The Court of Appeal in this case was content to follow the procedure set out in rule 52.21, CPR, a provision applicable to appeals in general. It recommended, however, that the Rules Committee expressly address the matter, at least by way of a cross reference in Part 81. This decision also strongly suggests that a sentence of 6 months imprisonment, suspended for three years is unlikely to constitute sufficient punishment in circumstances where the contemnor is found to have committed multiple, serious breaches of a Court order.

What was the background?

The factual background has largely been concealed from public view as a result of a successful anonymity application and restrictions placed on the Court file in order to protect the identities of the Appellants. The Appellants obtained an order against the Respondent in the form of a final injunction. That order (among other things) restrained the Respondent from using, publishing, communicating or disclosing any part of the information contained in a paragraph to the confidential schedule to the order or any information which was liable to or might identify the Appellants, whether as parties to the proceedings or at all. The Respondent was also restrained from making any adverse or derogatory comment about the First Claimant company or any of its directors or employees. An appeal against the terms of the substantive order brought by the Respondent failed. A short time thereafter, the Respondent committed 28 separate breaches of the order. The Appellants successfully brought a committal application, at which HHJ Cawson QC concluded that those 28 breaches had been proven to the criminal standard. The Judge ordered that the Respondent be committed to prison for a period of 6 months and suspended that sentence for a period of 3 years. The Appellants appealed that sentence which they argued was unduly lenient.

What did the court decide?

The judgment of the Court of Appeal noted that Part 81, CPR, dealing with contempt proceedings makes no reference to the procedure to be adopted on an appeal in relation to a committal order and contains no cross-reference to CPR, r.52.21, the general provision relating to appeals. The Court recommended that this lacuna be addressed by the Rules Committee. The Respondent did not appear on the appeal, however, the Court was satisfied that he had been personally served and that it was appropriate to continue with the appeal. Out of caution, the Court reserved judgment and delivered the judgment in public and in person. The Court of Appeal concluded that the sentence imposed was unduly lenient and the appeal was allowed. (1) The Respondent’s conduct was at the most serious end of the spectrum. His 28 breaches undermined the purpose of the substantive order and rendered it nugatory. (2) The Judge failed to sufficiently appreciate the need to punish the serious breaches of the substantive order when considering the appropriate penalty. (3) Too little weight was given to the fact that the seriousness of the breaches was aggravated by the untenable line of defence to the committal application and the sweeping allegations of fraud made at the substantive hearing. (4) Disproportionate weight was given to the Respondent’s belated apology. (5) The Judge took into consideration irrelevant factors such as the Respondent’s frustration, his lack of bravado and the fact he was not motivated by profit or gain. (6) The Judge gave undue weight to the Respondent’s stated remorse. (7) The Judge failed to consider whether it might be appropriate to suspend part of the term rather than the whole term. The appeal was allowed, the Judge’s order was set aside and the matter was remitted to the Court below for re-sentencing.

Case details

• Court: Court of Appeal, Civil Division
• Judge: Lewison LJ, Asplin LJ and Baker LJ
• Date of judgment: 7 April 2022

Article by Phillip Patterson – first published by LexisNexis