The judgment of Mr Justice Nicklin (pictured below) in MBR Acres Ltd & Ors v McGivern [2022] EWHC 2072 (QB) is one which has certainly got lawyers talking. Comment has rightly focused on the judge’s very critical comments concerning the claimant’s conduct when making a contempt application against a solicitor, an application that was dismissed as being without merit.
Most noteworthy was paragraph 97, where the judge said: ‘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.’
While 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 it is in everyone’s interest to ensure that litigants (and others) do not 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 Justice Andrew Baker in the High Court (Navigator Equities v Deripaska [2020] EWHC 1798 (Comm)), in dismissing the application to commit 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 179) stating that the judge at the lower court had overstated the position with regard to contempt claimants, and confirmed they do still have a ‘proper private interest’ in the outcome of the contempt proceedings.
The appeal court explained 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 and McGivern cases could not be more different. 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. 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), who was accused of breaching a worldwide freezing order in the sum of £87.5m. However, what both cases have in common is a suspicion that the contempt proceedings may have been brought for doubtful 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, claimants 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.
Marc Livingston is a solicitor and higher-court advocate (civil) at Janes Solicitors, London
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