Janes Solicitors were delighted to be instructed in two recently published Contempt of Court Appeal judgments. Although arising in two very different types of cases (a Court of Appeal decision against a High Court Chancery Division Judge and a High Court Family Appeal against a Circuit Judge in the Family Court), both illustrate the safeguards that need to be afforded to alleged contemnors. These judgments reiterate the procedural protections to which alleged contemnors are entitled and demonstrate that the appeal courts will not hesitate in stepping in should they think that an alleged contemnor’s right to a fair trial and the associated protections flowing from contempt proceedings being deemed as ‘criminal’ for the purposes of Article 6 of the European Convention on Human Rights have been impugned.
Barclays Bank PLC v Scott Dylan & Ors [2025] EWCA Civ 265
In this case, Janes Solicitors represented the Appellant, Jack Mason. While the Court of Appeal did not, in the main, accept the challenges to Rajah J’s factual findings in respect of Mr Mason’s conduct, Mr. Mason did achieve an important victory in respect of his first ground of appeal (which concerned the 4th Count of Contempt found proved by Rajah J at trial).
This ground of appeal alleged that the Judge was wrong (and it constituted a serious procedural irregularity which made the decision unjust) to allow the Claimant to make wholesale last minute changes to the allegation of contempt after trial (indeed after the liability Judgment was handed down), so as to convert the allegation to the very different wording now contained in the Contempt Order, in circumstances where the prospect of any amendment was first suggested during closing submissions.
The allegation against Mr Mason was originally drafted as follows:
“On or about 23 March 2022, Jack Mason, in breach of paragraph 3 of the Jack Mason Freezing Order and in contempt of court, transferred his 50 ordinary shares in the capital of ICGL out of the jurisdiction to a BVI registered company called Investment Holdings (BVI) Limited.”
However, during cross-examination at trial, it transpired that according to Mr Mason’s evidence, the shares had not been transferred on 23 March 2022, but (if they had been moved at all), had been moved in October 2022. That being the case the Judge found that there had been no transfer of shares on 23 March 2022. Yet, in light of the changing position, he found that there had still been a dealing in Mr Mason’s shares (which amounted to a breach). He went on to say that:
“To the extent that is different from the terms of the contempt alleged (which alleges that Mr Mason transferred the shares on 23 March 2022) I do not consider it material and if necessary I will allow the contempt application to be amended. These differences have arisen because of the false impression which the Respondents have sought to give Barclays, which has unravelled during the trial.”
The Court of Appeal disagreed with the approach taken by the Judge for a number of reasons:
- There was no discussion of what action might amount to a ‘dealing’;
- There was no consideration given to the question of whether it would be proper to allow an amendment to the application notice after the close of evidence in a committal application;
- The Claimant did not provide a formulated amendment for Mr Mason or his representatives to consider, even though there had been a break of 11 days between the close of evidence and closing submissions;
- The Claimant’s original position had been that there was no need for an amendment, which does not tally with the fact that extensive amendments did eventually need to be made.
The Court of Appeal found that since the change of position from an allegation of an actual transfer to that of a ‘purported’ transfer raised a real legal question about what amounts to a ‘dealing’ in an asset, the High Court ought to have granted an adjournment to allow Mr Mason to consider the new allegation. The fact that the change of position had come about due to Mr Mason’s own evidence, was not enough to overcome the procedural shortcomings and therefore, it was wrong in principle for:
- The Judge to have made findings of fact that which went beyond the allegation contained in the Contempt Application Notice without requiring an amendment to be made;
- The amended allegation to be formulated for the first time after the Judge had already made his findings (which went beyond what had been pleaded and argued);
That being the case, the Court concluded that “it was unfair for the allegation to be expanded “on the hoof” without adequate protection for Mr Mason.”
It is important that this clarification of the law and procedure articulated by the Court of Appeal does not get overlooked as the principle ensures that alleged contemnors cannot be subjected to last-minute shifting of the goal posts or procedural uncertainties, which would be inherently unfair. Such procedural errors can profoundly affect both the finding of contempt, and any sanctions imposed. Therefore, it is crucial to ensure that alleged contemnors (whose liberty is at stake) are always aware of the precise case they need to meet.
For those that are interested, the full judgment can be accessed here.
VB v JG [2025] EWHC 840 (Fam)
In the second case, Janes Solicitors acted for the successful Appellant, VB, in overturning a case management decision by HHJ Willans sitting at West London Family Court, which had sought to limit the extent of the Defendant’s permitted cross-examination of the Claimant at the trial of the Claimant’s Application for Contempt of Court.
VB sought to appeal and the application for permission went in front of Mr Justice Hayden. Upon receiving the Judge’s initial reasons for listing an oral application for permission to appeal (Paragraphs 1-8 of the Judgment), the parties agreed a consent order overturning the Circuit Judge’s decision. However, upon receiving the agreed consent order and considering the recitals that we, on behalf of VB, had insisted were included, Hayden J decided that the application had actually raised such important points of principle, that it would be prudent to publish a Judgment so as to avoid other Courts falling into the same error.
Specifically, Hayden J made it clear that an alleged contemnor is entitled to cross-examine the Claimant/Applicant on all matters relevant to the legitimacy and proportionality of the committal application. He explains at Paragraph 11 “…on determining liability for contempt, I consider it is important that the Court recognises the inherent dangers in restricting the scope and ambit of cross-examination in advance of a hearing. Further, the alleged contemnor will always be entitled to cross-examine on any matters relevant to the legitimacy of the contempt application’s purpose and the proportionality of a committal order. This cross-examination should be without restriction.”
Furthermore, he went on to explain at Paragraph 12 that :“When determining liability for contempt, it will always be necessary for the Court to consider, amongst other things, whether the application is proportionate (i.e. to the gravity of the conduct alleged) and whether it is brought for legitimate aims. The Court, for the reasons I have discussed above, must be alert to committal applications pursued for illegitimate or improper collateral purposes.”
The Judge was clear that contempt proceedings frequently generate appeals predicated on procedural fairness (as can be seen in the Barclays case above) and therefore he felt it was in the public interest for this Judgment to be published in the hope it can be of general assistance.
This judgment underlines the Court’s duty to balance the gravity of the allegations against the fairness and necessity of committal proceedings. By guaranteeing the right to challenge the application’s purpose and proportionality, alleged Contemnors are afforded a robust mechanism in which they can alert the Court to what they consider to be misuse of contempt proceedings.
The judgment of Hayden J is worth reading in full and can be found here.
The Bigger Picture: Protecting the Rights of Alleged Contemnors
Taken together, these judgments highlight a growing trend in the appellate courts to safeguard the rights of alleged contemnors and prevent procedural unfairness from infecting contempt proceedings (where of course, the liberty of the Defendant is at stake). They reiterate that those facing allegations of Contempt must be afforded the necessary procedural protections, fairness, and the opportunity to contest the legitimacy of the allegations against them. While these protections may not always alter outcomes, they play a vital role in preserving the integrity of the process.
Conclusion
We are proud to have been instructed in both of these important matters, further demonstrating our expertise as one of the leading firms in this field.
Our head of Civil/Contempt Marc Livingston acted in both matters, instructing James Counsell KC and Michael Uberoi of Outer Temple Chambers in Barclays Bank PLC v Scott Dylan & Ors and Janet Bazley KC of 1GC Family Law and Joshua Hitchens of Outer Temple Chambers in VB v JG.
If you have been threatened or served with a Contempt Application, or you think your opponent may have breached a Freezing Order/Injunction or otherwise sought to interfere with the course of justice, then do get in touch to see if we can assist. To find out more about the Contempt department please visit the contempt page on our website here.