A SECOND APPEAL IN COMMITTAL PROCEEDINGS WAS AN ABUSE OF PROCESS, AND DISMISSED FOR THAT REASON

August 10, 2022 · by · in Abuse of Process, Appeals, Committal proceedings

In Nambiar v Solitair Ltd [2022] EWCA Civ 1135 the Court of Appeal held that an appeal against a committal order should be struck out as an abuse of process.  Prior to sentencing the appellant had issued an earlier, identical, appeal and permission to appeal had been refused.  An attempt to issue the same appeal after sentencing was an abuse of process.  This was the case even though, arguably, the appellant would have had the right to appeal the sentence without permission of the court.

THE CASE

The appellant had been found in contempt of court after a three day trial.  After the finding of contempt, but before sentencing,  the appellant made an application for permission to appeal that finding.   Permission to appeal was refused by a single judge of the Court of Appeal.   The appellant was then sentenced to a suspended sentence. The appellant then launched a second appeal, seeking to exercise the right to appeal without permission in relation to committal proceedings.  The appellant’s appeal was about the findings of breach made in the committal proceedings. There was no appeal against sentence.

 

THE COURT OF APPEAL DECISION

The Court of Appeal were, shall we say, not best pleased that the second appeal had been launched and documents lodged, without any reference to the first appeal.  The Court held that the refusal of the permission in relation to the first action should have been made clear at the outset of the second appeal.  The existence of the first appeal, and the fact that permission was refused, was of considerable significance. It meant that this second action was an abuse of process and it would be dismissed for that purpose.

THE HISTORY OF THE APPEALS

The judgment of Lady  Justice Simler, sets out the procedural history.

    1. There were two applications for permission to appeal (subsequently given case numbers A4/2021/0237/PTA and A4/2021/0260), one in relation to the claim and the other in relation to the contempt finding. The permission application in relation to the claim was prepared by trial counsel and included an application to stay enforcement of the money judgment. The permission application in relation to the contempt finding at paragraph 9 of the 27 January order (the contempt order) attached grounds of appeal and a skeleton argument, both prepared by Mr Lewis and dated 9 February 2021, and advanced three grounds of appeal. They can be summarised as follows:
i) The judge erred in finding that the injunction was enforceable for a breach alleged to have occurred on 19 December 2019 in the circumstances where, having only been sealed by the court on 21 January 2020, the injunction was not personally served upon the appellant until a date after the alleged breach on 5 February 2020. It was not therefore operative or enforceable at the time of the alleged breach on 19 December 2019.
ii) Alternatively, the judge erred in finding that the appellant had breached the injunction by causing the email to be sent by Mailchimp on behalf of the Second Defendant. Reliance was placed on four reasons, including (amongst other things) the asserted failure by the judge to apply the criminal standard of proof to the finding of contempt; the absence of evidence to support the judge’s findings; and his reliance on inferences wrongly drawn.
iii) Further and in the alternative, the proceedings below were unjust, resulting in serious procedural errors and irregularities in the context of a committal application. Reliance was placed on four errors or irregularities including the matters referred to in grounds 1 and 2, and the fact that the substantive issues in the claim were dealt with at the same time as the contempt allegations, which was unfair and effectively deprived him as an alleged contemnor of his right to silence.
    1. Solitair produced a detailed statement, dated 16 February 2021, (under CPR PD52C, paragraph 19) answering each of the points raised (including the question of late personal service and enforceability of the interim injunction, the attack on the factual findings and the asserted procedural failings), submitting that the appeal had no real prospect of success, that permission should be refused, and that there should be no stay of enforcement or execution. It is significant that paragraph 2 expressly said that “The limited exemption in CPR 52.3(1)(a)(i) does not apply because the order under appeal is not “a committal order” as such” and referred to authority for this proposition.
    1. Permission to appeal was refused by Males LJ on all grounds by order dated 8 March 2021 with the following reasons given:
“1. It is apparent that it was not suggested below that the injunction was unenforceable or inoperative as of 19 December 2019. If that point had been taken, the judge would have been able to dispense with personal service and would undoubtedly have done so, as the applicant was aware of the relevant provisions of the order. In these circumstances it is not appropriate to allow this point to be raised for the first time on appeal.
2. It is clear that the judge applied the criminal standard of proof to the contempt allegation. Not only did he say so, but the text of his judgment (including his references to the existence or otherwise of a reasonable doubt) makes clear that he applied this standard. His judgment involves no reversal of the burden of proof. He was entitled to draw the inferences which he did. The evidence that the applicant was responsible for the sending of the email, taken as a whole, was very strong.
3. There was no injustice in the proceedings below. Much of this ground represents repetition of points already raised in the previous grounds, but to the extent that it adds anything, it is without substance. In particular the applicant had the benefit of legal representation by counsel and was aware of his right to silence.”

THE SECOND APPEAL

The “second appeal” was in identical terms to the appeal that had already been refused permission.

    1. As I have said, on 26 March 2021, Mr Nambiar commenced the current appeal against the committal order, relying on the identical grounds of appeal as were considered and rejected by Males LJ in the application for permission to appeal the contempt order.
    1. The court having identified all the earlier documents, Mr Lewis was informed (on 15 July 2022) that it would wish to be addressed on two issues at the outset of the appeal hearing:
“i) On what basis the appeal is not abusive of the process because it appears to be an attack on the final decision of Males LJ dated 8 March 2021 refusing permission to appeal against the order of 27 January 2021, including in particular, paragraph 9 of that order;
ii) on what basis the appeal against the findings in the judgment of 13 January 2021 and the order of 27 January 2021 can proceed in these circumstances.”
    1. The court also sought an explanation from counsel as to why he had not informed the court in terms of the substance of the appellant’s application for permission to appeal the order of 27 January 2021, the respondent’s statement dated 16 February 2021 in response, and the contents of the decision of Males LJ of 8 March 2021.
  1. Mr Lewis served a supplemental skeleton argument responding to the questions raised and providing an explanation as required. He offered an unreserved written apology to the court for not addressing the substance of the documents referred to and said that it was not a deliberate omission on his part or an attempt to avoid an abuse of process point being raised. Regrettably, his oral submissions appeared to retreat from this apology and to lay at least some blame on the respondent for failing to raise the issue. This is unattractive, especially in light of the respondent’s statement dated 16 February 2021. Mr Lewis owed a duty to the court to draw relevant matters to the court’s attention, and at the very least, to include Males LJ’s reasoned decision refusing permission to appeal the contempt order. The position was all the more acute once it became clear that the respondent was playing no part in the appeal. In the course of the hearing, Mr Lewis was asked by the court to confirm that there was nothing more that he felt obliged to inform the court as part of his duty to the court in the circumstances. He confirmed that there was not.

APPEAL OF CONTEMPT ORDERS AS OF RIGHT

The Court considered the argument that the appellant had a right to appeal a finding on committal without seeking permission to appeal.   Such a right was confined to orders where a party was committed to prison, or a suspended order was made.  The first appeal was made even before sentence was passed and permission was required.

 

    1. Accordingly, it is well established that the exception to the requirement for permission to appeal is strictly limited to orders which commit a party to prison. Mr Lewis’ response to these authorities was to contend that the statement made by the judge at the end of his first judgment (see [132] set out at paragraph 9 above), that the custody threshold had been passed, was a sword of Damocles over the head of the appellant, as in Wilkinson, and the contempt decision should therefore be treated as a committal order with unfettered appeal rights. I do not accept this contention. First, this is not what the judge said. The judge merely expressed a provisional view for the benefit of Mr Nambiar, hedged with caveats because he had not heard submissions in mitigation. He passed no sentence, suspended or otherwise. Sentence was adjourned. Secondly, it is trite that appeals are against orders not judgments. The first order, made following the first judgment, was a contempt order. It made no committal order.

 

    1. It follows that Mr Nambiar’s application for permission to appeal the contempt order, before any sanction had been imposed, was properly made, and properly treated by Males LJ as requiring permission. He required permission because the order he was challenging is not, on any view, a committal order.

 

  1. It is unnecessary for me to reach any firm conclusion on the question whether, in the absence of that application for permission to appeal, Mr Nambiar could have used his appeal as of right against the committal order of 17 March 2021 (imposing a suspended sentence of imprisonment) to challenge the underlying facts or findings that gave rise to the right to impose that penalty. My provisional view is that he would have been able to do so. However, this court has not heard argument on the question, still less argument from both sides. In any event, it is not what happened. The question that now arises is what is the consequence of having sought and been refused permission to appeal the contempt order. Can Mr Nambiar have an identical second appeal?

THIS APPEAL WAS AN ABUSE OF PROCESS

The fact that an earlier appeal had been made on identical grounds, and permission refused, rendered this second appeal an abuse of process.
  1. The question that accordingly arises for decision is whether this court is satisfied that the process of this court is being abused by this appeal. If it is so satisfied, there is a duty (and not a discretion) absent some unusual circumstance, to strike out the appeal for misuse of the court’s procedures. Although at one stage in the course of his submissions Mr Lewis contended for a broad merits-based discretion to decide what to do even where abuse has been established, he conceded that once an abuse is established, there is little scope for a broad merits-based discretion in light of the principle cited above.
    1. In arguing that this case involves no abuse, Mr Lewis submitted that questions of abuse are fact sensitive. He emphasised the unusual circumstances of this case and in particular a series of significant features. I summarise them without setting out the full detail of the arguments he advanced, all of which I have considered under the following heads. First, because of the extension of time to 10 February 2021 only, he contended that the appellant was put in a position where he had to appeal the contempt order (and the findings of breach of fiduciary duty) by that date or lose his appeal rights altogether. Secondly, he has an absolute right to appeal the committal order but that only arose on 17 March 2021. A finding of abuse in this case would deprive the appellant of his absolute right under the AJA 1960 Act to have a full appeal on all substantive grounds (raising fundamental issues of procedural unfairness) without first obtaining permission, and deprive this court of its jurisdiction under the AJA 1960. This jurisdiction cannot be removed or fettered. In developing this submission Mr Lewis placed considerable reliance on Re State of Norway’s Application [1990] 1 AC 723 at 744 where May LJ observed (obiter) that even if there was an issue estoppel in that case, it could not deprive the court of its statutory jurisdiction. He submitted that this is analogous with the position here, and demonstrates that the court cannot be deprived of jurisdiction by the operation of abuse or an issue estoppel, of a jurisdiction which it would otherwise possess under section 13 of the AJA 1960. Thirdly, the position is now different to what it was before Males LJ because of the 17 March 2021 hearing and the ongoing procedural unfairness that impacted upon the appellant. Mr Lewis relied on a suggestion that the appellant had been debarred from giving evidence in response to the committal application, or had perceived himself to be debarred, and that was an additional unfairness. Fourthly, Mr Lewis placed reliance on a decision of Miles J in Business Mortgage Finance 4 plc v Hussain [2022] EWHC 449, [2022] 3 WLUK 12 and more specifically on the fact that on appeal to this court, although this court dismissed the appeal (and refused permission to appeal to the Supreme Court) on the question whether the court has jurisdiction to dispense with personal service of an injunction retrospectively, nonetheless the court certified that issue as raising a point of law of general public importance for consideration by the Supreme Court. This court’s order is available but judgment is awaited.
    1. Mr Lewis’ fall-back position, as foreshadowed, is that the order refusing permission to appeal should be reopened under the exceptional jurisdiction in CPR 52.30. He accepted that the jurisdiction is rare and confined but submitted that the appellant will suffer a real injustice if he is not permitted to exercise his absolute right to appeal the committal order and have his grounds of appeal considered at a full in-person appeal hearing. The circumstances of this case are exceptional because of that unfettered right to appeal without first obtaining permission. Moreover, there is no alternative remedy available to him.
    1. I do not accept the submissions that there is no abuse here. If this appeal proceeds and is successful it will necessarily lead to divergent judgments of this court of co-ordinate jurisdiction. That undoubtedly brings the administration of justice into disrepute and is plainly abusive: it engages the twin interests of the abuse principle, namely that the other party should not be unfairly harassed twice, and the public interest in the finality of litigation, avoiding duplicated use of judicial resources and the risk of inconsistent judgments. In reality, this appeal is no more than an (improper) attempt to have a second appeal against what is now a final contempt order. My reasons for reaching those conclusions follow.
    1. Mr Nambiar chose to appeal the contempt order of 27 January 2021 by an application for permission to appeal dated 10 February 2021 in which he sought to challenge the finding of breach of paragraph 1(2)(a) of the injunction order. He did not need to do that, and following the contempt order, could have protected his appeal rights by seeking an extension of time for appealing from the 27 January order until after the sentence hearing. This was the approach adopted by the contemnor in Business Mortgage Finance: see [397]. Indeed, HHJ Stephen Davies was plainly alive to the need to address time for appealing, as paragraph 3 of his 13 January order made clear. There is nothing to suggest that the judge did anything other than accede to the limited extension of time sought, when he made his 27 January order. Alternatively, having filed the applications for permission to appeal the 27 January order, Mr Nambiar could have invited the court to stay consideration of these applications until after sanction had been determined on the basis that if a committal order was made he would then pursue his appeal as of right without permission, but if not he would pursue the permission to appeal against the finding of contempt.
    1. In the course of argument Mr Lewis accepted that both options were open to Mr Nambiar. He argued however that the procedural complexity of having to appeal the claim findings and the contempt order militated against either approach, and he appeared to contend that Mr Nambiar would have been disadvantaged by any delay to these appeals because he faced paying a money judgment. I do not accept that any material disadvantage would have flowed to Mr Nambiar by adopting either course. The sanction hearing was listed for 17 March on 27 January and involved no real delay. Ultimately Mr Lewis conceded that nobody had anticipated this problem at the time. Had they done so, he accepted that an extension of time for appealing until after the sanction hearing could have been sought. Had that been done I am in no doubt that the extension would have been granted in the circumstances. Accordingly, I reject the suggestion that Mr Nambiar had no alternative but to appeal paragraph 9 of the 27 January contempt order when he did.
    1. Furthermore, Mr Nambiar’s ability to pursue available avenues of appeal is not undermined by a finding of abuse. Rather, having chosen to appeal the contempt finding, he pursued that appeal through to its final disposal: his application was properly considered by Males LJ on the papers in accordance with CPR 52.5, and an order was made, with reasons addressing why none of the grounds raised an arguable (or any other compelling) basis for the appeal to be heard by the full court. The order is final and he cannot now seek a second bite at that cherry. So far as the committal order itself is concerned, there is no challenge to that order as Mr Lewis accepted.
    1. Nor is the court being deprived of its statutory jurisdiction or power under the AJA 1960 to hear an appeal against the committal order which only arose on 17 March, or having that statutory jurisdiction or power fettered or constrained. A decision to strike out the appeal as abusive would be a decision by this court not to exercise the statutory jurisdiction that is available because of an earlier court order that is final.
    1. The decision in State of Norway is not relevant. The jurisdiction the court was being asked to consider in that case was a request for evidence from the Norwegian court, which could only be granted if as a matter of Norwegian law, the request was in “proceedings in any civil or commercial matter”. The passage relied on by Mr Lewis suggested that even if the witnesses were subject to issue estoppel preventing them as civil litigants from challenging the first Court of Appeal decision that the proceedings were civil or commercial (so that the court had no jurisdiction), that did not prevent the courts on the second request, examining their jurisdiction which turned on that question. But the issue which was the subject matter of the estoppel in that case went to whether the court had jurisdiction. May LJ’s obiter remarks are to the effect that this is a question for the court, not the parties. By contrast here, the matters which it is an abuse to have redetermined do not go to whether this court has jurisdiction. Rather, there has been a substantive adverse decision on the merits of the earlier appeal, which Mr Nambiar is now seeking to re-litigate in circumstances where his appeal rights have been exhausted.
    1. As to the contention that the position has changed since the decision of Males LJ, there is no doubt that where new material becomes available after a decision which it would be proper to admit on a second occasion, that may prevent reliance on new grounds being abusive if they do not fall foul of the principle in Henderson v Henderson because they could and should have been raised on the first occasion. However, the “new points” relied on by Mr Lewis do not begin to justify a fresh argument on this basis. First, what the judge said in the sentence judgment merely confirmed that his contempt finding was made on the evidence then before him, not that his committal order was based on new evidence or could be reopened by reference to it, as the summary above demonstrates. The issues before Males LJ were unaffected by the new evidence, and it remains irrelevant now. The new evidence was admissible for the purposes of mitigation of sentence (as the judge had earlier indicated would be the case), and was admitted and rejected on that basis. Mr Nambiar could legitimately seek to rely on this evidence on the present appeal to challenge the sentence imposed on him, but he has not done so. His only grounds of appeal challenge the finding of contempt.
    1. Moreover, the new evidence was available to Mr Nambiar at trial and could have been adduced by him at the trial had he chosen to do so. To the extent that Mr Lewis contended that there was an order debarring (or perceived as debarring) Mr Nambiar from relying on new evidence in relation to the committal application, I do not accept this to be the case. First, having failed to comply with orders made in the lead up to the trial of the claim, for disclosure and exchange of witness statements, it is correct that the defendants (as they were then) were debarred from relying on documents or witness evidence at trial by reason of those failures. However, the order did not extend to the committal application, and the defendants were expressly entitled to rely on the evidence served in response to the committal application. Secondly, this submission is inconsistent with a submission made to the judge at trial to the effect that Mr Nambiar had been able to produce documents during the course of the trial which were said to have supported his case (see [39] of the first judgment); and inconsistent with what the judge recorded at [10] of the sentence judgment, that it was not suggested by Mr Nambiar that he could not have adduced the new evidence at trial. His permission to adduce further evidence did not extend to him adducing evidence so as to re-open earlier findings, and nor was it suggested at the sanction hearing that he should be permitted to do so.
    1. Furthermore, there has been no new change in the law since Males LJ’s decision. This court’s decision to dismiss the appeal in Business Mortgage Finance suggests that the decision was that the court has jurisdiction to dispense with personal service of an injunction retrospectively. The mere certification that this is a point of importance does not alter that fact; and permission to appeal to the Supreme Court was refused.
    1. Mr Lewis invited the court to consider the issue of prejudice if the appeal is held to be abusive. He submitted that there was no prejudice to the respondent but the appellant will suffer the prejudice of his statutory appeal rights not being met in full and the stigma of being subject to a finding of contempt and a suspended sentence of imprisonment. I am not persuaded that there would be no prejudice to the respondent if the appeal were to proceed. It responded in full to the 10 February application for permission by a statement dated 16 February 2021. There will be some prejudice accordingly. I accept that Mr Nambiar will suffer the stigma associated with a finding of contempt and the suspended committal order, but that does not flow from a finding of abuse. It flows from the orders made by the judge which are final following the refusal by Males LJ of permission to appeal. In any event, prejudice can have, at best, a limited role only where the question of abuse raises questions of public policy and the proper administration of justice.
    1. Finally I reject Mr Lewis’ submission that Mr Nambiar has not had a full opportunity to contest the contempt finding because the application was considered on the papers alone. He relied on a passage in the judgment of Sir Thomas Bingham MR in Smith v Linskills (A Firm) and another [1996] 1 WLR 763 as supporting his submission, but in my judgement it undermines it. In Smith this court upheld the striking out of a claim brought against the claimant’s former solicitors for negligence and breach of contract in the conduct of criminal proceedings, which, it was alleged, had led to his conviction and imprisonment. The new proceedings were a collateral attack on the earlier criminal proceedings which had not been successfully challenged on appeal and the attempt to relitigate the criminal proceedings in the subsequent proceedings was held to be an abuse of process. It was argued on behalf of Mr Smith that he had not had a full opportunity to contest the decision in the Crown Court because his solicitors’ negligence had prevented him deploying the full case which he would have wished to deploy. The argument was held to be founded on a misunderstanding of what Lord Diplock meant in Hunter (at 542H) when he referred to the need for the intended claimant to have had a full opportunity of contesting the decision against him in the first court. In response to that argument, Sir Thomas Bingham MR said at 770:
” …We cannot think that Lord Diplock would have regarded Mr Smith as lacking a full opportunity of contesting the Crown Court decision against him when he had had the benefit of a solicitor and counsel throughout the proceedings, had pleaded not guilty, had attended every day of the trial, had been able to give instructions to counsel on the cross-examination of prosecution witnesses, had given evidence himself, had called witnesses, had sought to establish an alibi, had had the benefit of submissions made to the jury on his behalf, had pursued an application for leave to appeal against his conviction, had settled grounds of appeal drawing attention to some at least of his complaints about the manner in which his case had been conducted by his solicitor and had renewed his application for leave to appeal to the full court on the initial refusal of leave. Even if it be true that valid criticism can be made of the conduct of his defence, it seems to us quite impossible to hold that Mr. Smith lacked a full opportunity to contest the charge. Were this the correct meaning of the rule, then the rule itself would be virtually meaningless, since it is hard to imagine a case in which a convicted defendant could not find some plausible ground upon which to criticise the preparation of the defence by his solicitor. We fully appreciate the great difficulty which faces any convicted defendant seeking to challenge his conviction on appeal on the grounds that his defence had been negligently conducted; this does not, however, lead to the conclusion that such a defendant lacked a full opportunity to contest the charge against him”.
      1. The same is plainly true here. Mr Nambiar had a full opportunity to contest the contempt allegation. He was represented by counsel throughout. Counsel challenged the evidence against him and made submissions on his behalf. He sought leave to appeal, and in a clearly reasoned decision albeit on paper, was refused leave. That was, on any view, a full opportunity.
    1. These conclusions mean it is necessary to address the fallback argument advanced by Mr Lewis that there are exceptional circumstances that justify reopening the decision of Males LJ in this case under CPR 52.30. In writing Mr Lewis reserved the right to rely on CPR 52.30, but made no written application seeking permission to do so. In argument he submitted that if the only way to enable Mr Nambiar to exercise his absolute right to appeal under section 13 AJA 1960 is by way of an application to reopen, he would seek oral permission to make such an application. Mr Lewis recognised the rare and confined operation of the rule in CPR 52.30. He submitted that not having his grounds of appeal considered at a full appeal hearing and preventing him from having his absolute right to appeal would be a real injustice to Mr Nambiar. The circumstances are exceptional because of his absolute right to appeal without the restriction of having to obtain permission first and because of the procedural errors and unfairness that flowed throughout the hearing of the committal application and into the sanction hearing.
  1. Mr Lewis was correct to recognise that CPR 52.30 is drafted in highly restrictive terms with a high hurdle to be surmounted. It requires circumstances that are truly exceptional. It is well established that the jurisdiction can only be properly invoked where it is demonstrated that the integrity of the earlier proceedings, whether at trial or at first appeal, has been critically undermined. The rule is not intended to cater for mistakes made by the lawyers involved, no matter how reasonable and understandable they may be. It follows that the fact that a wrong decision was made or a wrong result reached earlier, or that there is fresh evidence, or the point in issue is very important to one of the parties, is not sufficient to displace the fundamental public importance of the need for finality. For an appeal to be reopened, the injustice that would be caused if the appeal is not reopened must be so grave as to overcome that pressing need.
    1. For the reasons already given in addressing the question of abuse, there are no exceptional circumstances and no grave injustice would be caused if the appeal against the contempt order is not reopened. In short, Mr Nambiar challenged the contempt allegations at a hearing at which he was represented and in which he gave evidence but was disbelieved. He chose to exercise his right of appeal against the contempt order in accordance with the civil procedure rules, by seeking permission before the committal order was made. His grounds of appeal were properly considered and addressed at the permission stage. He had no right to renew to an oral hearing and did not seek to do so in any event. Neither the integrity of the trial of the application nor the first appeal has been critically undermined; nor is this alleged in any event. This is a makeweight application made at the eleventh hour. In my judgement it does not begin to surmount the high hurdle identified by CPR 52.30.
Conclusion
  1. For all these reasons, I am satisfied that the substantive appeal is an abuse of the court’s process and should be struck out. There is no proper basis on which the final decision of Males LJ can be reopened. Accordingly, these proceedings are at an end.
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