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Civil Law Bulletin Feb 2020

All Inclusive Christmas Holiday Produces Little Ho Ho Ho

Recently, in the case of Jet 2 Holidays Limited v Hughes & Hughes [2019] EWCA Civ 1858, the Court of Appeal addressed the issue of whether contempt proceedings can be brought in respect of pre-issue witness statements and evidence, before proceedings in the intended action were initiated.

In a not unfamiliar scenario, the unhappy (and soon to be unhappier) respondents contended they had suffered illness during their holiday at an all-inclusive resort, between 21 and 31 December 2016, contending that the holiday delights of undercooked, re-used and re-heated food / vermin all over the place and / or an insanitary swimming pool, alive with children’s vomit, collectively or individually caused illness, decimating their enjoyment of the holiday and their ability to do things. In what you might already be expecting is the likely continuation of this (now, apparently, somewhat every day) saga it transpired that social media posts painted a very different picture of the activities and enjoyment squeezed from the holiday – with the holiday company suggesting the probability was that the intimated claims were false, as was evidence in support of them.

The holiday company had sought permission to bring proceedings for contempt of court, notwithstanding the fact that the contempt on which they based their initial application was not in the currency of court proceedings, but based on witness evidence in support of the alleged claims in purported (and, as it happened, unnecessary) compliance with the pre-action protocol regime.

Certain procedural matters came to the fore in the stages that led up to the Court of Appeal getting hold of the matter. Potential difficulties were that there was no mechanism under CPR 32.14 for proceedings for contempt to have been brought, given that no proceedings were extant at the time of the alleged contempt (pre-action witness statements). Further, proceedings for contempt had been brought in the Queen’s Bench Division rather than (given the pre-proceedings nature of the alleged contempt) the Administrative Court.
Whilst permission to bring the contempt proceedings had been allowed by judge HHJ Godsmark QC, sitting as a High Court Judge, when the case management hearing came before HHJ Owen QC, also sitting as a High Court Judge, he determined that it was necessary to hear, as a preliminary issue, whether the court had jurisdiction to entertain the application for contempt. Subsequently, and on the hearing of the preliminary issue, he determined that there was no jurisdictional power under CPR 32 (and because of CPR 22, dealing with statements of truth) to find contempt of court at the pre-proceedings stage the contempt allegedly occurred at. He did not however seemingly take issue with the wrong court venue point.
The Judge had also had to deal with another early twist, in that, after permission to pursue contempt proceedings had been obtained from Judge Godsmark QC, but before the preliminary hearing had taken place, further witness evidence was introduced by the respondents, also endorsed with statements of truth – this sought to dispute assertions there was a case for contempt to be answered – contending that the information in the original witness statements was true and that the respondents were just putting a brave face on the holiday in the social media information before the court.
The holiday company sought permission to amend their case for contempt to also rely on this additional witness evidence from the respondents as being equally false and further evidence of contempt. Judge Owen refused to allow this new information to form a potential avenue for contempt of court though on the basis that he contended there was no jurisdiction for the initial contempt proceedings and so he reasoned that a case that should not have been before the court anyway could not be supplemented by new matters, notwithstanding the fact that contempt proceedings had initially been permitted by Judge Godsmark.

The Court of Appeal noted CPR 81 and its practice direction and went on to set out detailed case law excerpts, including Griffin v Griffin [2000] EWCA Civ 119, which stated that “the power to commit to prison for contempt of court is a common law power which has never been fully regulated by statute or even by rules of court” and Attorney General v Newspaper Publishing Plc [1988] Ch 333 at 338 which stated “The law of contempt is based upon the broadest of principles, namely, that the courts cannot and will not permit interference with the due administration of justice. Its application is universal. The fact that it is applied in novel circumstances, for example to the punishment of a witness after he had given evidence is not a case of widening its application. It is merely a new example of its application.”

The court then highlighted, at length, the importance of the pre-action protocols and their integral role and their integration with court rules, noting they served to promote the overriding objective and that their abuse could result in parties placing reliance on information conveyed at early stage to their prejudice and justice being undermined.

The court also stressed, in accordance with previous authorities, proceedings for contempt of court were matters pursued in the public interest, rather than for private purposes.

Additionally, the court indicated that it was not necessary to issue new contempt proceedings every time there was a contempt in or relating to the same proceedings and that amendment of the initial proceedings to include the further alleged contempt, in this case in the additional witness statements, was appropriate.
The court also felt rule changes should be considered to supplement CPR 32.14, to deal with false statements made in witness statements served before the commencement of proceedings in purported compliance with the pre-action protocols.

It is hopefully the case that this case will be brought to the attention of potential Claimants, to focus their minds on the necessity to provide honest evidence pre-action, lest they find that any alleged dishonesty returns to haunt them and that even though they might want to run from bringing a claim, they can’t hide from proceedings being brought against them.

As with many films, the door has been left open for a sequel. Paragraph 47 of the judgment said “It is not necessary or appropriate on this appeal to address whether, and in what circumstances, false statements in relation to other the types of pre-litigation documents are capable of giving rise to contempt, not least because only the appellant was represented before us and there will be widely varying factual situations where the point may arise.” I’m sure there will. We will have to wait and see. Some will perhaps have to brace themselves as to what they are!

Graham E. Williams
Oriel Chambers