Court of Appeal Hearing - re Contempt.

[2021]JCA042

Court of Appeal

15 February 2021

The Appellant in person.

Advocate M. P. Renouf for the First Respondent.

The Second Respondent was not represented

Advocate R. S. Christie for the Third Respondent.

in private

Judgment

the President:

1.        In this matter, in which the hearing of the appeal is due to take place later this year, it was brought to the attention of the court that the Appellant had engaged in certain actions which might be considered to have been in contempt of court.  These were that a firm of solicitors had received emails from the Appellant seeking information and documentation relating, broadly, to certain issues which he has sought to raise in the present proceedings.  Those emails attached transcripts of hearings below in this matter.  Those hearings, as was well known to all parties, had been conducted in private and the transcripts were clearly endorsed with a prohibition on transmission without Judicial permission. 

2.        The complaint was intimated by those solicitors to the Appellant who immediately contacted the court seeking forgiveness if he had been in the wrong and explaining the reasons behind his actions. 

3.        The court was of the clear prima facie view that these transmissions constituted contempt as the Appellant, as an active party, was well aware of the private nature of the proceedings.   

4.        A special hearing was therefore convened to call for the Appellant to explain his actions and, if appropriate, to consider the proper sanction.  The Appellant duly acknowledged that he had been in the wrong; but his explanations did not give any satisfactory reason as to why he had, intentionally it appears, flouted the court’s orders.  It may well be, as he put to us, that he had intended no malice or gain, had been overwrought through full time work and the pressures of litigation and had approached persons whom he thought to be parties to his claims and whom he considered to have been withholding vital information in a grossly partial manner.  Such considerations may have been the reasons for his actions but they come nowhere near an excuse for manifest defiance of judicial arrangements put in place to protect all those involved in this litigation. 

5.        As stated in Taylor v Chief Officer of the States of Jersey Police [2004] JLR 494, the test as to whether contempt by breach of a Court Order is essentially objective:

“29.    It is of the first importance that Orders of the Court should be obeyed.  This is not for the purpose of upholding the Court’s dignity.  The Court makes Orders because it believes them to be in the interest of justice.  If parties are to be able to rely upon the Court resolving disputes between them, they must have confidence that Orders will be enforced.  If it is open to a party to argue that, although he has failed to comply with the Court’s Order he did not mean to breach the Order, there would be endless scope for argument and for parties to try and get out of their obligation to obey the Order ……  Far better for there to be an absolute rule that Orders must be obeyed with mitigation being available as necessary where the breach was not deliberate.  The policy considerations which have led the English Courts to adopt the approach which they have are equally applicable in Jersey.

30.      In summary, the question of whether or not a contempt by reason of a breach of a Court Order has been committed involves an essentially objective test requiring the determination of whether or not the alleged contempt nor has acted in a manner constituting a breach of the Order.  If he has, then a contempt will be established, regardless of whether or not he acted contentiously or with the intention of breaking the Order, although whether any, and if so what, punishment ought to be imposed on him will, or maybe, materially dependent on considerations of this sought.”

6.        We are in no doubt but that the circumstances here were a manifest contempt. 

7.        Turning to sanction, therefore, the court most recently indicated in BNP Paribas Jersey Trust Corporation Limited v Camilla de Bourbon des Deux Siciles [2020] JRC 267 at paragraph 74:

“As the Court said in Caversham Trustees Limited v S Patel and 7 Others [2007] JRC 215 at paragraph 31, there are no statutory limits under Jersey law as to the penalties that may be imposed for contempt and the Court’s remedies therefore range from a reprimand to a fine or ultimately to imprisonment.  Another power available to the Court is the imposition of a punitive costs order (i.e., that the contemnor pays all of the costs of the other party as between solicitor and client). It is also open to the Court to refuse to hear the party or to refuse to do so until the contempt has been purged.”

8.        To maintain proportionality, we consider that the circumstances here, as they are at present, do not merit either our refusing to hear the appeal or to imposing a fine which might lead to imprisonment.  Nor do we consider that an order such as a pre-emptive costs order would reflect the fact that the actions have been against the authority of the court. In the whole circumstances we will pronounce an ‘unless’ order requiring the Appellant to pay the court fees for his appeal, as notified to him by the Greffier, no later than by close of business on Friday 5^th March 2021, in default of which his appeal will be struck out.  

9.        We would add, however, that any further contempt, through whatever circumstances, could well lead to an immediate striking out of the appeal. 

10.      There will be liberty for the Appellant to apply to the court, if he is genuinely in financial difficulties which make him unable to pay the court fees for his appeal, to be relieved of his obligation to pay those fees.  Such an application (were one to be made) should be in good time before 5^th March 2021 and would require to be accompanied by a sworn or affirmed Affidavit setting out his means and financial obligations and showing why he could not be expected to pay those fees.  The basis for the application should be simply the Appellant’s present financial circumstances, not what the Appellant might believe to be the causes of those circumstances.  The Affidavit would require to be supported by immediately verifiable evidence.  As to income this could be by such as an employer’s certificate of earnings or his most recent tax return.  Evidence of significant obligations or of net disposable income might depend on the obligations or be shown through bank statements for the past six months.  The fact of the making of the application would be intimated to the other parties to the appeal but the resulting file and its contents would be sealed as between the Appellant and the Court.  

11.      The Respondents to this appeal will bear their own costs of and incidental to this contempt hearing.  

12.      In the meantime, the appeal proceeds in accordance with directions.  

Authorities

Taylor v Chief Officer of the States of Jersey Police [2004] JLR 494. 

BNP Paribas Jersey Trust Corporation Limited v Camilla de Bourbon des Deux Siciles [2020] JRC 267