WHEN A SOLICITOR SAYS “BURN IT” IN RELATION TO DOCUMENTS THIS GIVES RISE TO A PRIMA FACIE ISSUE OF CONTEMPT OF COURT: COURT OF APPEAL DECISION TODAY

In the judgment today in  Ocado Group PLC & Anr v McKeeve [2021] EWCA Civ 145 the Court of Appeal overturned a decision that  the court should not allow an application for contempt of court against a solicitor to proceed. The Court of Appeal stated that the case was such that the court should allow the contempt application to proceed.

“Here, on the allegations made as to the intended interference with the due administration of justice, a solicitor has ordered the destruction of documentation, knowing of the existence of proceedings and of a Search Order, with a view to that documentation being unavailable for examination by the claimants in those proceedings. I consider that that scenario of itself, in the circumstances, means that the committal application is in the public interest.”

THE CASE

The claimants had obtained an order for the search of premises and preservation of evidence.  The respondent to the committal proceedings, a solicitor, admitted that upon being told of the order he gave instructions to the IT manager of the defendant company to “burn it”, which led to documents being deleted.  The claimant issued contempt of court proceedings against the solicitor.  The High Court judge refused the claimant’s application for permission to bring contempt proceedings.  That refusal was overturned by the Court of Appeal. (It has to be stressed that the contempt application itself has yet to be heard and there have been no findings of contempt).

THE COURT OF APPEAL JUDGMENT
  1. This is an appeal, brought by leave granted by Floyd LJ, against an Order of Marcus Smith J made on 11 June 2020 whereby he refused permission to the appellant claimants (collectively, “Ocado”) to apply to commit the respondent defendant (“Mr McKeeve”) for contempt of court. The committal application, made pursuant to CPR Pt 81.14, was made against a background of underlying proceedings commenced against various parties by Ocado in the High Court. Those proceedings have all the hallmarks of tooth and claw litigation.
  2. The context of the contempt application is, on any view, remarkable. It is admitted that within minutes of being notified of the fact that an Order for Search of Premises and Preservation of Evidence had been made in the High Court against clients of his, Mr McKeeve, a solicitor, gave instructions to his clients’ Information Technology manager to “Burn it” (or “Burn all”). In consequence, that manager then deleted or disabled various IT accounts. One of these was an account, previously operated on a covert basis, known as the 3CX account. Its deletion has meant that any messages sent via that account are wholly irretrievable. Ocado has alleged that Mr McKeeve’s conduct was intended to interfere with the due administration of justice.
  3. The judge, after considering the particulars of contempt alleged and after reviewing the evidence, concluded that no sufficient prima facie case of contempt of court had been made out. He accordingly refused permission and dismissed the committal application. The question for this court is whether he was wrong to have done so.

THE COURT OF APPEAL DECISION

The Court of Appeal overturned the decision of the High Court judge.
    1. Mr Weekes submitted (citing ample authority in support of his proposition) that an appellate court should be very cautious in interfering with an evaluative judgment of a judge deciding whether or not to grant permission on an application in a contempt case. I accept that. As it seems to me, the appellate court will ordinarily not be justified in interfering unless there has been some error of law or principle, or some failure to take into account a material matter or taking into account an immaterial matter, or unless the conclusion is outside the range of decisions reasonably open to a judge (in other words, is plainly wrong).
    2. In the present case, I am in no doubt at all, with all respect to the judge, that he reached a conclusion which was plainly wrong. Indeed such a conclusion would seem to set at a premium, where litigation is under way, the deliberate and irretrievable destruction of documents so that it is then asserted that no one can say for sure what they contained. No court can or should readily countenance that.
    3. My essential reasons for so concluding are these.
    4. I was not much impressed by Ocado’s first ground of appeal, taken on its own. True it is that it has been said that:
“The critical question, on this and every case, is whether or not it is in the public interest that an application to commit should be made.”
See Makdessi v Cavendish Square Holdings Br [2013] EWCA Civ 1540 at paragraph 79, per Christopher Clarke LJ. Similar remarks were made in KJM (Superbikes) Ltd v Hinton [2008] EWCA Civ 1280[2009] 1 WLR 2406 at paragraph 20 of the judgment of Moore-Bick LJ. In one sense, of course, that is indeed right: the public interest does underpin committal cases. But the invariable practice in such cases is for the court first to consider whether a sufficient prima facie case has been made out. In fact, in Makdessi itself, Christopher Clarke LJ had preceded his statement set out above by saying, at paragraph 77:
“It is axiomatic that, upon an application for permission, the judge is required to find whether or not there is a strong prima facie case, not whether that case is established. It may not, however, be an altogether easy task to express a conclusion that there is a strong case without appearing to indicate that the case is established….”
    1. This is a principled approach. In fact, I find it difficult to conceive how it can ever be in the public interest to grant permission on a committal application in private litigation where a sufficient prima facie case has not been shown. Certainly the fact that the background may have involved the making of a Search of Premises and Preservation of Evidence Order, as in this case, cannot of itself cause it to be in the public interest for a committal application to be pursued, irrespective of the underlying prima facie merits (or lack of them). At all events, the judge’s methodology in his judgment in this respect was, in my opinion, entirely proper. Having concluded that (in his view) no sufficient prima facie case had been made out he was justified in saying that public interest did not need further consideration. Nor, contrary to Mr Cavender’s submission, had the judge ignored the public interest aspect. To the contrary, the judge expressly indicated his view that had he found the prima facie case requirement to be satisfied then he probably would have considered the application to be in the public interest. I can see nothing wrong in that approach.
    2. Mr Cavender’s second ground included, as one aspect, the proposition that the judge had been wrong to direct himself that “at least a prima facie case” must be made out by Ocado. He submitted that that overstated the requirement. All that was required, he said, was a prima facie case. He went on to say that the judge in any event failed correctly to apply the appropriate prima facie test to Ocado’s allegations: and furthermore had continued to focus on the third and fourth particularised contempts, to the virtual exclusion of the first. To an extent, this second ground of appeal also runs into Grounds 3 and 4 of the appeal.
    3. In so far as Mr Cavender submitted that there was no requirement for a “strong prima facie case” in this context, the weight of authority is against him. Makdessi (cited above) is one such authority. There are many others: see, for example, Berry Piling Systems Ltd v Sheer Projects Ltd [2013] EWHC 347 (TCC)Tinkler v Elliott [2014] EWCA Civ 564 at paragraph 44, per Gloster LJ.
    4. It is true that Makdessi, as are a number of those other cases, was concerned with an alleged dishonest statement of truth. In the Divisional Court case of Solicitor-General v Holmes [2019] EWHC 1483 (Admin) the alleged contempt was contempt in the face of the court. The court there considered what the applicable test was in such a context. It indicated that a “strong prima facie case” test may set the bar too high in that context: see paragraphs 41 to 48 of the judgment of Coulson LJ, giving the judgment of the court. But the court did not feel it necessary to decide the point, being content to say that “the applicant must demonstrate at least a prima facie case of contempt in the face of the court”. In fact, the Divisional Court in that case held that there was, on the evidence, a strong prima facie case anyway.
    5. Whilst I can see that the courts will be particularly wary, in committal applications at the permission stage, where the context is an alleged deliberate false statement of truth (an allegation all too easily and frequently made in hotly fought litigation) I would be reluctant to say that the actual legal test for the threshold varies depending on the nature of the committal application. Ordinarily, therefore, in my opinion, the test to be taken is as that of a strong prima facie case. I would however acknowledge at least one potential exception to that: and that is where a permission application is made by a Law Officer or other relevant public body: see Attorney-General v Yaxley-Lannon [2019] EWHC 1791 (QB).
    6. It seems to me that the overall general approach should, where claimants are not Law Officers or other relevant public bodies, be to require that a prima facie case of sufficient strength is being presented such that, provided the public interest so requires, permission can properly be given. That approach would thus enable the filtering out of cases which can, even on a prima facie basis, be assessed as weak or tenuous, even if just about sufficient to limp through a strike out application. Moreover, whilst the court must avoid delving too deeply into the merits at this stage, the phrase “strong prima facie case” seems to me to present the judge concerned with an evaluative range and a degree of flexibility, depending on the evidence and circumstances of the particular case, whilst at the same time requiring the case to be sufficiently strong so as to merit its going forward.
    7. Overall, therefore, I see no misdirection adverse to Ocado on the part of the judge as to the requisite test. The critical question, as I see it, thus is whether he properly applied it to the evidence and circumstances of this case.
    8. I do not think that he did. In my view, his approach was, with respect, much too narrow and placed both an unreasonable requirement on what Ocado needed (at this stage) to show and too restrictive an interpretation on the Search Order and the Particulars of Contempt. In my discussion of this issue, I propose to take the balance of Ground 2 and Grounds 3 and 4 of the appeal compendiously.
    9. The judge’s approach was essentially geared to the terms of grounds 3 and 4 of the Particulars of Contempt as set out in the claim form (Ocado did not ultimately pursue the second particularised contempt). In that context, he placed much emphasis on the apparent fact that at the time he gave the “Burn” instruction Mr McKeeve neither had seen a copy of the Search Order nor had been told of its precise terms or of the contents of Schedule C.
    10. But whilst Mr McKeeve’s knowledge of the fact that the Search Order had been made was the trigger for his conduct, and whilst Ocado placed due emphasis on that at the hearing below, as I read the first particularised contempt set out in the Claim Form it clearly is not confined to the Search Order itself. Indeed if it was it is difficult to conceive what purpose there was in including that first ground of contempt in the first place. It is, moreover, not the case that Ocado at the first hearing had entirely subordinated that ground of contempt to the third and fourth grounds of contempt: as the transcript shows.
    11. The point advanced by Ocado was that, by being told of the Search Order, Mr McKeeve knew that Ocado had started proceedings against his clients. Because of his prior involvement in the negotiations with Marks and Spencer and in the contacts with Mr Hillary, he would have known in broad terms what the claim was about. Irrespective of his knowledge, or lack of knowledge, of the precise terms of the Search Order, he would have known as a solicitor (the fact that he was not a litigation solicitor matters not for present purposes) that he should not deliberately destroy documents of potential relevance to the proceedings. But that is, on the face of it, precisely what he caused to be done.
    12. It is said by him in his affidavit and witness statement that he only did so because he was concerned about reputational damage to his wife. That may or may not be the case. Ocado, at all events, does not accept that explanation. Besides, there surely was a clear potential awkwardness, to put it at its very lowest, for Mr McKeeve personally: in that he had allowed himself, as a solicitor, to be made party to a covert communication system which, by design, included as a member a very senior employee of his clients’ principal competitor (a matter on which, as his own evidence shows and as the evidence of Mr Henery also shows, Mr McKeeve at the time was sensitive and had “reservations”). In any event, his explanation, even if it were to be accepted, does not of itself by any means necessarily give a complete answer. As Mr Cavender pointed out, that assertion goes to motive. The fact remains that Mr McKeeve intentionally caused to be destroyed documentary materials which were of potential relevance to the claim and would be liable to examination by Ocado. Indeed, he must have so appreciated – why else cause them to be destroyed? The answer has to be, as a matter of inference at this stage, to prevent them from coming under investigation by Ocado. I therefore simply do not agree that the inference that relevant documents existed on the 3CX system was “fragile”, as the judge put it.
    13. In his second judgment, the judge had also rejected the proposition that the 3CX app was a “document” within Schedule C of the Search Order. I would not read Schedule C to the Search Order, and in particular paragraph 4, so narrowly. I consider that the 3CX app (which no doubt in any event had appeared on the iPhones or other devices of the group members) was a document. In any event messages on it – and it was accepted that there had been messages on it – were assuredly documents. Further, in my opinion, the 3CX app, and the messages on it, were “documentary material” within the ambit of ground 1 of the Particulars of Contempt: a conclusion also entirely consistent with the wide definition contained in CPR Part 31.4. I consider Ground 3 of the Grounds of Appeal to be well founded in these respects.
    14. Reflecting what I have said above, I therefore am unable to accept that the judge was entitled to conclude, at this stage of the proceedings, that it could not be said that the messages contained on the 3CX app were “relevant” or that Mr McKeeve could have known that they were. Given that their precise contents are unknown just because Mr McKeeve deliberately ordered their destruction, that is a singularly unattractive approach to take at this stage. But quite apart from that, I consider that the judge was in any event wrong in his appraisal of the actual evidence in this respect, in reaching his conclusion that no sufficient prima facie case had been shown.
    15. This is because the judge had in terms held, in paragraph 42 of his second judgment, that “we do not know what those [deleted] materials said: and we will never know …. Quite literally, nothing can be said about the nature of this material”. But that, in my opinion, simply is not right. Evidence had, it is true, been adduced by Mr McKeeve to the effect that all such messages were innocuous. But he himself had said in his affidavit that some of the messages related to, for example, Mr Hillary’s queries as to the location of Project Today’s offices and as to potential employment by Project Today of his daughter. As Mr Cavender pointed out, this was not purely social chat: it involved Mr Hillary (while still an employee of Ocado) engaging in discussions of a kind which would be relevant evidence as to whether or not there was a conspiracy as Ocado alleged, in showing the degree and nature of the contact with Mr Hillary. So this evidence tends to support the inference that in any event arises.
    16. It is of concern that the judge in places seemed to be saying that, because Ocado’s case at this stage was to a great extent based on inference and because Mr McKeeve had sought to rebut that inference in his evidence, that indicated that there was no sufficient prima facie case. I very much doubt if that was the appropriate approach to be taken on this permission application: and it also seems to give scant weight to the accepted fact that the 3CX app was set up and was designed at the outset to be used as a secret means (using pseudonyms) of messaging between the members of the group, one of whom was a senior employee of Ocado.
    17. Mr Weekes sought to rely on what Mr Faiman and Mr Hillary said in their affidavits. At one stage, he seemed to be suggesting that that evidence was “independent support” for Mr McKeeve. But those two witnesses cannot at this stage be regarded as independent: indeed Ocado’s case involves saying that Mr Faiman, Mr Hillary and Mr McKeeve were all in it together (as evidenced, for example, by Mr Faiman and Mr McKeeve going together to Mr Hillary’s home in Ascot and collecting various Ocado documents; and by his being part of the 3CX group).
    18. In any event, Mr Hillary’s affidavit is yet further evidence which, in my opinion, also displaces the judge’s conclusion that “quite literally nothing can be said about the nature of this material”. This is because Mr Hillary had himself said, albeit without elaboration, at paragraph 23.9 of his affidavit that the 3CX account, accessible from his iPhone, contained information “confidential to the First and Second Respondents or the Today Development Partner’s Business” but “which may also have been” documents falling within Schedule C to the Search Order. Those statements cannot be discounted at this permission stage. Indeed they indicate, first, that the information on the 3CX was not all innocuous (rather, it included confidential information of Project Today which he, an employee of Ocado, could access) and, second, that some “may” fall within Schedule C to the Search Order.
    19. I also add that Mr McKeeve himself would not have been in a position to know what was stated in any individual messages passing between other members of the group which did not include him. So he was not himself necessarily in a position to state that all such messages were innocuous. I further add that Mr McKeeve’s case, as I see it, to an extent potentially may rest on the proposition that he, as is his recollection, said “Burn it” (meaning the 3CX app). But if, as is Mr Henery’s recollection, he said “Burn all” then that may cast something of a different light on matters. Certainly it appears that Mr Henery understood the instruction to go wider than the 3CX account: as he also commenced on disabling the Slushminer accounts.
    20. In view of Mr Weekes’ insistence, nevertheless, that Mr McKeeve had committed what could even at this stage be appraised as no more than an error of judgment, we asked him if he was saying that no sufficient prima facie case would have been made out even in the absence of any rebuttal evidence from Mr McKeeve. He stated that he was so saying.
    21. That is not acceptable. It shows no regard to any sense of realities. The obvious inference, in the absence of any explanation, was that the “Burn” instruction, given at a time when it was known that Ocado had started proceedings against Mr McKeeve’s clients, was that destruction of (at least) the 3CX app was intended in order to prevent Ocado studying it for the purposes of its case: an intent to thwart the due administration of justice, in other words.
    22. Cases derived from circumstantial evidence and inference can often be powerful cases in the criminal context. Mr Weekes emphasised that a conclusion to the criminal standard based on inference cannot be drawn if another possible inference is also available. That, indeed, reflects the criminal law: see, for example, R v Goddard [2012] EWCA Crim 1756. But in a criminal trial context the overall test remains whether there is evidence upon which a reasonable jury, properly directed, could infer guilt: see R v Khan [2013] EWCA Crim 1345 at paragraph 16 of the judgment of Hallett LJ. A jury may be perfectly entitled, depending on the evidence, to reject the suggestion of other possible inferences which may be postulated. I do not wish to press too far the analogy between a submission of no case to answer at the close of the prosecution case in a criminal trial context and a decision on whether there is a sufficient prima facie case for the purposes of a permission application under CPR Pt. 81.14 (not least because the latter kind of application involves viewing the evidence of claimant and defendant as a whole). Nevertheless in my view, in the present circumstances, it does no harm to consider whether Ocado’s case, in the postulated absence of any evidence in rebuttal, gave rise, applying the criminal standard, to a sufficient case to answer, by analogy with R v Galbraith [1981] 1 WLR 1039. In my judgment, it is wholly plain that it did.
    23. Here, of course, evidence had been put in by Mr McKeeve; and there were also the affidavits from Mr Faiman, Mr Hillary and Mr Henery. But Mr Faiman and Mr Hillary are, to say the least, relatively terse in what they say about the messages on the 3CX app. Besides, Mr McKeeve’s case in effect involves a requirement that not only what they say in their affidavits but also what he says in his affidavit should at the permission stage be accepted: which, indeed, at various stages in his two judgments, the judge seemed prepared to do. But, as David Richards LJ pointed out in the course of argument, that in effect involves accepting their evidence at the prima facie stage: when a judge is in principle not entitled to explore or make detailed findings of fact and when Ocado has had no opportunity to test what is being said in cross-examination.
    24. As Christopher Clarke LJ said in Makdessi, it sometimes is not altogether easy to express a conclusion that there is a strong prima facie case without appearing to indicate that the case is established. I make clear that I do not in any way suggest that here the case is established. What I do say is that the evidence before the judge, viewed as a whole, did raise a strong prima facie case (that is to say, of sufficient strength to justify permission being given). Whether all or any of the particular contempts alleged are proved to the criminal standard will hereafter be entirely a matter for the judge hearing the substantive committal application.
    25. Mr Weekes, as to some extent had the judge, also complained that the alleged contempt, and assertions of knowledge, had been insufficiently particularised in the Claim Form. I reject that. It is true that technicality can have its part to play in the law; and it is true that there are certain strict requirements applicable to contempt applications. But the general direction of travel – consistent with the overriding objective – has been to eschew unwanted elaboration in this sort of case: as indeed is reflected in the revised CPR Part 81 introduced in October 2020 (although of course the present case is governed by the previous Part 81).
    26. The general principle remains that the application should, within its four corners, contain information giving sufficient particularity of the alleged contempt to enable the alleged contemnor to meet the charges: see, for example, Harmsworth v Harmsworth [1987] 1 WLR 1676 at p. 1683 (per Nicholls LJ) and at p.1686-1687 (per Woolf LJ). As Nicholls LJ put it, the fundamental question is whether a reasonable person in the position of the alleged contemnor, having regard to the background against which the committal application was launched, would be in any doubt as to the substance of the breaches alleged. As Cockerill J said at paragraph 80 of her judgment in Deutsche Bank AG v Sebastian Holdings Inc [2020] EWHC 3536 (Comm), after a thorough review of the authorities:
“…. The Application Notice needs only to set out a succinct summary of the claimant’s case, to be read in the light of the background known to the parties: it is for the evidence to set out the detail…”
Precisely so. And in the present case, in my view, Mr McKeeve could have been in no doubt as to the case which he had to meet. In fact, I did not understand counsel on his behalf to have objected below that there was such a doubt.
    1. In such circumstances, I do not, I think, need to deal with Ocado’s other grounds of appeal relating to amendment and adjournment. On the issue of amendment, it may be that the judge and Mr Cavender were at unfortunate cross-purposes. But it matters not, given the view I take that a strong prima facie case was made out and given my acceptance of the other grounds of appeal. I can, of course, see that grounds 3 and 4 of the Particulars of Contempt, as currently drafted, raise to some extent issues potentially different from ground 1 of the Particulars of Contempt. But, overall, I consider that permission should be given on all three such grounds, since currently all are essentially based on the same factual background. Whether Ocado nevertheless may hereafter seek to amend the Claim Form to add or substitute some further or other ground of contempt is not a matter for this court.
    2. Of course, that still leaves the public interest. In view of his conclusion on prima facie case, the judge made no express finding on public interest. But he did, helpfully, indicate his probable view on that aspect in paragraph 29 of his first judgment; and that must weigh with us.
    3. I propose to deal with this shortly. I entirely agree with the judge on this. Here, on the allegations made as to the intended interference with the due administration of justice, a solicitor has ordered the destruction of documentation, knowing of the existence of proceedings and of a Search Order, with a view to that documentation being unavailable for examination by the claimants in those proceedings. I consider that that scenario of itself, in the circumstances, means that the committal application is in the public interest.
Respondent’s Notice
    1. I turn to the Respondent’s Notice.
    2. The first point raised is that Ocado is not a fit and proper person to pursue a public interest application such as a committal application. There is no doubt that, in an appropriate case, such a consideration can be a bar to a successful committal application: see, for example, Tinkler v Elliot (cited above) at paragraph 111.
    3. It is perhaps a point of comment that Mr McKeeve has so closely aligned himself, in this committal application, with the viewpoint plainly held by Mr Faiman. It appears that Mr Faiman’s attitude towards Mr Steiner is that Mr Steiner is driven by malevolent hostility towards Mr Faiman and is determined by whatever means, fair or foul, to crush the business of Project Today as a potential competitor of Ocado. I put it in my words, not Mr Faiman’s. But that is what it amounts to: as is further evidenced by the counterclaim of Mr Faiman and Project Today in the underlying proceedings. This claims hundreds of millions of pounds in damages against Ocado for (amongst other things) alleged conspiracy to injure; and claims that Ocado’s conduct, in particular in obtaining the Search Order, was undertaken in bad faith and for collateral motives and was designed to cause, and has succeeded in causing, Waitrose to terminate its business relationship with Project Today.
    4. I view this particular argument, as raised at this permission stage of the committal application, with some bemusement.
    5. Ocado is a listed company, with a very large capitalisation. It has a Board of Directors, answerable to the shareholders. It has in this litigation retained very experienced and reputable London solicitors and instructed leading and junior counsel. It cannot possibly be said at this stage that Ocado is to be regarded as some kind of puppet dancing to the tune of Mr Steiner irrespective of legal proprieties. Further, an application to discharge the Search Order (on grounds, as I understand, which include alleged improper motivation and deliberate concealment) has been issued but remains to be decided. In fact, it appears that that discharge application is intended to be dealt with as part of the trial of the underlying proceedings. This court is in no position at this prima facie stage to adjudicate on the allegations there made.
    6. Given all this, this point therefore cannot possibly, in my opinion, be a good reason for refusing permission at this stage of the proceedings.
    7. The next point raised is that Ocado has not shown, applying the criminal standard of proof, a strong prima facie case. It is true that the judge (understandably, in the circumstances) had applied a test of “at least” a prima facie case. But, as appears from what I have said above, I take the view, on the evidence thus far adduced, that there is indeed a strong prima facie case for the purposes of the permission application. I also reject, for like reasons, the further ground advanced in the Respondent’s Notice to the effect that the alleged conduct of Mr McKeeve has not had a significant effect on the administration of justice (that assertion being essentially founded on the proposition that the messages in the 3CX app were “wholly innocuous” but which, as I have said, remains to be tested). For the reasons also given above, I further reject the ground advanced in the Respondent’s Notice to the effect that the public interest does not require committal proceedings to be brought. As I have already said, the public interest does so require. That, moreover, is not displaced by the fact that Mr McKeeve has since apologised and has voluntarily referred himself to the Solicitors’ Regulation Authority.
Conclusion
  1. I would allow the appeal. The judge’s approach was, with respect, flawed and resulted in him reaching a conclusion which was plainly wrong. That has entitled this court to interfere.
  2. Given the circumstances as they now stand, there is no purpose in adjourning the permission application to the trial judge. On the evidence available, the judge should, as I have concluded, have granted permission; and this court now should.
  3. However, I thought that there was great force in Mr Weekes’ alternative submission that the substantive committal application (on the footing that permission is granted) should be adjourned to the trial judge: and I did not understand Mr Cavender strenuously to dissent from that. Given all the allegations and cross-allegations being made, I in fact cannot conceive how this committal application could fairly or properly be dealt with prior to trial. As to that, we were told that the trial is currently scheduled to take place in the first part of 2022.
  4. In such circumstances, I would direct that this committal application, for which permission is now given, be adjourned to the trial judge. The trial judge can then give appropriate directions (perhaps by way of pre-trial review) as to the best way, and the appropriate stage, in which this committal application should be dealt with. Given that the overlap of issues is such that the committal application and the trial should be heard by the same judge, and given that Marcus Smith J reached a firm view on the merits of the committal application, I consider that the trial and committal application should be heard by a different judge.
  5. Accordingly, I would for my part allow the appeal, would reject the Respondent’s Notice, would grant permission on the committal application and would remit the substantive committal application to the trial judge.