A sense of entitlement – an unintended consequence of Navigator v Deripraska?

Thursday, 11 August 2022 | Marc Livingston

Cases concerning allegations of Contempt of Court never seem to be far from the legal news at the moment. High profile examples have included:

  1. a solicitor being found in contempt after giving an instruction to “burn it” in reference to messages caught by a search order (Ocado Group Plc & Anor v McKeeve [2022] EWHC 2079 (Ch));
  2. a woman being jailed after a finding of contempt against her for exaggerating her injuries in a claim for negligence against the NHS (North Bristol NHS Trust v White [2022] EWHC 1313 (QB)),
  3. The £900 fine issued to EDL founder Tommy Robinson, after he was found to be in contempt for not attending Court for questioning concerning his failure to pay costs of £43,000 to Syrian refugee Jamal Hijazi.

It is unclear whether the publicity surrounding these cases is down to the somewhat unique prospect of civil courts sending people to jail, the sometimes quite incredible circumstances and facts detailed in the Judgments, or the high-profile status of the individuals involved or something else. Whatever the reason, there is no doubt these cases seem to garner real public and legal interest.

One case which has certainly got lawyers (or legal twitter at least!) talking is the recent Judgment of Mr Justice Nicklin in MBR Acres Ltd & Ors v McGivern [2022] EWHC 2072 (QB), with comment rightly focussing on the Judge’s very critical comments concerning the Claimant’s conduct in making a contempt application against a solicitor, an application that was dismissed as being without merit.

Most noteworthy in my opinion, was Paragraph 97, where the Judge said:

“97. Ms Bolton’s final submission was that the Claimants were “entitled” to bring the contempt application against Ms McGivern; “entitled” to spend two days of Court time and resources pursuing an application that, on an objective assessment of the evidence, was only ever likely to end with the imposition of no penalty; and “entitled” to put a solicitor through the ordeal of a potentially career-ending contempt application and all the disruption that it has caused to Ms McGivern’s work and the impact it has had on this litigation. There is no such “entitlement”. The contempt application against Ms McGivern will be dismissed and will be certified as being totally without merit.

Whilst I mean no disrespect to the lawyers involved, the question of how we got to the position where Claimants and/or their lawyers felt that they were “entitled” to bring contempt proceedings, proceedings which were ultimately certified as “totally without merit”, is one that troubles me greatly.

Notwithstanding the fact that is in everyone’s interest to ensure that litigants (and others) don’t interfere with the due administration of justice, there is no doubt that contempt proceedings, where a Defendant’s liberty (and possible livelihood) is at stake, require a careful balancing act between whether there is a public interest in the proceedings and a private litigant’s interest in seeking to punish an alleged contemnor.

These competing interests, and the way that the Court has opted to deal with them, is probably best illustrated by the Navigator v Deripaska contempt cases.

The original Judgment of Mr Andrew Baker in the High Court (Navigator Equities v Deripaska [2020] EWHC 1798 (Comm)), in dismissing the application to commit Mr Deripaska to prison as an abuse of process, seemed like a watershed moment in defining the role of a Claimant in contempt proceedings. Specifically, the Judge found that the Claimant’s proper role is that of a “quasi-prosecutor” whose job it is to act in the public interest. He went on to state that their proper function is to act dispassionately, to present the facts fairly and with balance, and let those facts speak for themselves in assisting the court.

However, the case was reinstated on appeal, with the Court of Appeal ([2021] EWCA Civ 1799) stating that the Judge at the lower court had overstated the position with regards to contempt Claimants, and confirmed they do still have a “proper private interest” in the outcome of the contempt proceedings.

The Court of Appeal went on to further explain that “to suggest that private applicants for civil contempt in circumstances such as these, at their own expense, should act as wholly disinterested parties would be to discourage litigants from pursuing such applications. The result would be that serious contempts would (or might]) not be drawn to the court’s attention, contrary to the public interest and/or the proper administration of justice.”

I was quite shocked when the Appeal Judgment landed, as I had been proceeding in my contempt practice following the High Court claim, under the impression that the Court would have the conduct and the motives of a Claimant firmly in mind when deciding contempt cases. This made sense to me – as much as it is important to ensure the due administration of justice is not interfered with and the consequences of doing so are harsh – it is also vital to ensure that the threat of imprisonment is not used tactically. However, I would submit that the Court of Appeal’s decision has swung the balance too far back in favour of Claimants. The (perhaps unintended) consequence of this Judgment is that Claimants can feel emboldened in bringing contempt proceedings so long as they think there is an arguable case, safe in the knowledge that their motives will not be questioned.

The circumstances and the context of the Navigator case and the McGivern case could not be more different. Ms McGivern is a criminal legal aid solicitor who was accused of breaching an injunction against ‘persons unknown’, which forbid trespass on the Claimant’s land. Mr Deripaska is a Russian oligarch and reported billionaire (who has subsequently been sanctioned by the UK Government following Russia’s invasion of Ukraine in March 2022), who was accused of breaching a worldwide freezing order in the sum of £87.5million. However, what both cases have in common is a suspicion that the Contempt Proceedings may have been brought for nefarious purposes.

It remains to be seen if the Judgment in McGivern sees the tables turn once again. I would hope that it leads to the Court taking a more measured and nuanced approach in determining whether Contempt cases could be abusive. It should certainly disabuse Claimants of any notion that they might have mistakenly had regarding their “entitlement” to bring contempt proceedings in all circumstances.

In the meantime, Claimant’s may wish to fortify themselves against accusations of acting unfairly by appointing independent solicitors to act for them in Contempt Proceedings (as was suggested in the original Navigator Judgment), which in my experience, is often a very effective tool in being seen to be prosecuting a contempt fairly.

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