Abc v Def
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stuart-Smith |
| Judgment Date | 14 October 2014 |
| Neutral Citation | [2014] EWHC 3346 (QB) |
| Court | Queen's Bench Division |
| Date | 14 October 2014 |
| Docket Number | Case No: HQ08X01503 |
[2014] EWHC 3346 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Stuart-Smith
Case No: HQ08X01503
Ms Caroline Addy (instructed by Forbes Anderson Free Solicitors) for the Claimant
Mr Adam Tear (Solicitor Advocate of Duncan Lewis) for the Defendant
Hearing dates: 17 September 2014
Introduction
On 9 August 2013 the Claimant issued an application to commit the Defendant for contempt of court, alleging that he had breached the terms of an injunction order made by HHJ Seymour QC, sitting as a Judge of the High Court, dated 30 October 2008. The Defendant issued an application on 12 August 2014 asking for the Claimant's application to be struck out or to be prosecuted forthwith. In response, on 9 September 2014 the Claimant issued a further application to commit, alleging further breaches of HHJ Seymour's order.
As appears later in this judgment, the factual background is complicated by the long term medical issues facing the Defendant. Because of the potential implications for the Defendant (and also for the Claimant and his family) in the event that their identities were to be disclosed, I have anonymised this judgment and direct that no steps that may lead to the identification of the parties or their respective families should be published without further order.
These three applications came before the Court on 17 September 2014. At the end of the hearing I gave my decision, which was that the contempts were proved and that the appropriate sanction was a term of imprisonment of 7 months suspended for 2 years. The Defendant's application was dismissed. This judgment sets out my reasons.
I need to provide some factual detail to explain how the case has come about and why it did not reach court for effective determination until September 2014, when the contempts upon which the Claimant relies were committed between May 2013 and March 2014.
The Factual Background
The Claimant is a Lebanese national. He lives in London with his wife and four children. His wife is the Defendant's sister. The Defendant lives in the United States, and has done so for some years. The extended family have interests in a group of companies ["the X Group"], which is engaged in construction and particularly active in the Middle East and Africa. The X Group headquarters are in Athens but at least one of the Group companies is registered in London. The Claimant works for the X Group. The Defendant does not: although he has had some employment in the past, he is at present unemployed. It is clear that the Claimant is wealthier than the Defendant and that, over the years, he has supported the Defendant with substantial funding. Regrettably, the Claimant and the Defendant fell out over the funding of a swimming pool and enclosure which were built at the Defendant's home in the United States. This has led to extreme anger on the part of the Defendant and a wish on the part of the Claimant to have no direct dealings with him whatsoever. No further details of the underlying dispute need to be given and it would not be profitable for me to do so: it could only add to the sense of grievance on one side or another, or both.
The interim and final injunctions
In April 2008 the Claimant issued proceedings alleging that the Defendant had been harassing him both directly and indirectly. He alleged that the Defendant had been sending abusive emails and making abusive phone calls to the Claimant and his lawyers, publishing derogatory comments about the Claimant, his father and the X Group to X Group Offices in England and abroad, and appearing outside the London offices of the X Group and displaying posters which referred to a website on which he was posting material relating to the Claimant.
On 11 April 2008, Sullivan J granted an interim injunction restraining the Defendant from "harassing, threatening, pestering or otherwise interfering with the Claimant by doing acts to cause him harm whether directly or indirectly …" That interim injunction was continued by Pitchford J on 18 April 2011 until trial.
The Defendant breached the terms of the interim injunction while remaining outside the jurisdiction. As a result of those breaches, in August 2008 King J issued a bench warrant for the Defendant's arrest should he return to the United Kingdom.
The action was tried by HHJ Seymour QC who gave judgment on 30 October 2008. The Defendant was outside the jurisdiction and was not represented. HHJ Seymour QC made findings of fact, which included that during 2008 the Defendant had:
"bombarded [the Claimant]; [the Claimant's wife]; [the Claimant's] employers in London; various other group companies around the world; [the Claimant's] lawyers, Messrs Hannah & Mould, in particular those acting on behalf of [the Claimant] at Hannah & Mould, Mr Hannah himself and his partner Mr McMillan, with a considerable volume of intemperate and offensive correspondence."
Referring to the period after the imposition of the interim injunction, HHJ Seymour QC found that:
"[the Defendant] has continued to adopt the practice of which complaint was made to Sullivan J in the first place. He has continued to send emails and documents by Facsimile transmission to [the Claimant] and to his wife. He has left messages on the voicemail of [the Claimant's wife's] mobile telephone. He has communicated with Messrs Hannah & Mould, in particular Mr Hannah and Mr McMillan, in offensive and intemperate terms. And he has made increasingly more serious threats of violence, including towards [the Claimant's wife] and the children of [the Claimant and his wife]. …"
Having found that the purpose of the communications was to persuade the Claimant to pay the money which the Defendant considered he was entitled to in respect of the construction of the swimming pool and probably additional sums to reimburse the Defendant for losses which he had incurred by unwise investments in the United States, HHJ Seymour QC referred to the possibility that the Defendant might be suffering from a mental disorder. This suggestion had been raised by the Claimant in his evidence, to which I shall return later. In the concluding paragraph of his judgment HHJ Seymour QC said:
"It is obvious from the material which has been put before me that [the Defendant] takes no notice whatsoever of orders of this court. He seems to take the view that as long as he is in the United States he can do whatever he likes without any risk of being found to have acted in breach of orders of this court. His error in that respect may be brought home to him should he be so bold as to visit this jurisdiction again. But it is not immaterial, as it seems to me, that even within the jurisdiction to which he is more obviously amenable, that of the United States, it appears that [the Defendant] seems to have paid no more regard to orders of the court than he does in respect of orders of this court. Unless an injunction is made on a permanent basis against [the Defendant], I am entirely satisfied that it is his intention to continue the course of harassment which he has thus far pursued against [the Claimant]."
Accordingly, HHJ Seymour QC gave judgment for the Claimant and made permanent the injunction, backed by a penal notice, in the following terms:
" IT IS ORDERED AND DIRECTED that:
The Defendant … be restrained and an injunction is hereby granted pursuant to section 3 of the Protection from Harassment Act 1997 restraining the Defendant whether by himself his servants or agents or otherwise from pursuing any course of conduct which amounts to harassment, threatening, pestering or otherwise interfering with the Claimant by doing acts to cause him harm whether directly or indirectly, including but not limited to the following acts:
(i) The disclosure, publication, republication, syndication, use, communication or disclosure to any person (other than to legal advisors instructed in relation to these proceedings for the purpose of obtaining legal advice) of material threatening, disparaging or insulting of the Claimant, his wife or father or of [the X Group];
(ii) Making any communication to the Claimant whether directly or indirectly, in writing or orally, by telephone, electronic mail or otherwise howsoever (save for communication with the Claimant's legal advisers solely in relation to the proper conduct of these proceedings);
(iii) Coming or remaining within 300 metres of the Claimant's home address …, or the premises of [the X Group in London];"
The 2011 committal
On 1 April 2011 the Defendant informed the Claimant's US lawyers that he was going to return to the United Kingdom. He arrived the next day and was detained at Heathrow. He was then brought to the Royal Courts of Justice pursuant to the bench warrant that King J had issued in August 2008. The committal hearing was first listed before Foskett J but adjourned to 7 April 2011 to give the Defendant time to prepare. On 7 April 2011 Sharp J determined that the Defendant had acted in breach of Pitchford J's order (the interim injunction) in seven identified respects between July and August 2008 and committed him to prison for 4 months.
On 28 April 2011 the Defendant appeared before Nicola Davies J and applied to purge his contempt. The Claimant did not oppose the application. It was submitted on the Defendant's behalf that he was a changed man. The Claimant's Counsel re-iterated in clear terms that neither the Claimant nor his wife wanted to have any contact with the Defendant, either directly or indirectly, and that the Claimant did not want to be disturbed by any means of communication from the Defendant. The Judge repeated: "[The Claimant] and his wife do not want to be disturbed or communicated with in any way by...
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