Anish Nambiar v Solitair Ltd
| Jurisdiction | England & Wales |
| Judge | Lady Justice Simler,Popplewell LJ,Carr LJ |
| Judgment Date | 09 August 2022 |
| Neutral Citation | [2022] EWCA Civ 1135 |
| Docket Number | Case No: CA 2021 000522 |
| Court | Court of Appeal (Civil Division) |
| Year | 2022 |
[2022] EWCA Civ 1135
Lady Justice Simler
Lord Justice Popplewell
and
Lady Justice Carr
Case No: CA 2021 000522
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANCHESTER CIVIL JUSTICE CENTRE
HHJ STEPHEN DAVIES
[2021] EWHC 49 (Comm)
Royal Courts of Justice
Strand, London, WC2A 2LL
Gary Lewis (instructed by Clifford, Johnston & Company) for the Appellant
Respondent did not appear and was not represented
Hearing date: 20 July 2022
Approved Judgment
This judgment will be handed down remotely by circulation to the parties or their representatives on 9 August by email and released to the National Archives. A copy of the judgment in final form as handed down should be available shortly thereafter but can otherwise be obtained on request by email to the judicial Office ( press.enquiries@judiciary.uk).
Introduction
This appeal concerns orders made by His Honour Judge Stephen Davies (sitting as a High Court Judge) following a three-day trial of a claim for damages and a permanent injunction, heard together with an application for contempt. The appellant is Mr Anish Nambiar. By his judgment dated 13 January 2021, (reported at [2021] EWHC 49 (Comm)), the judge found that Mr Nambiar had breached the fiduciary duties he owed to Solitair Limited (“Solitair”), a company of which he was a director, and that he had also breached the terms of an interim injunction and thereby acted in contempt of court. The first order with which this court is concerned is dated 27 January 2021. Among other things, it recorded the judge's finding of contempt by breach of paragraph 1(2)(a) of the interim injunction order, together with his orders on the claim. I shall refer to it as “the contempt order”. The second order with which this court is concerned, dated 17 March 2021, recorded the sanction imposed for contempt. I shall refer to it as “the committal order”. The judge also produced a judgment dated 17 March 2021 addressing the question of sanction on the committal application (“the sentence judgment”).
The appeal, though on the face of it directed at the committal order and pursued as of right (pursuant to section 13(1) Administration of Justice Act 1960, “the AJA 1960”, and CPR 52.3(1)(a)(i)), is exclusively targeted at the contempt finding. It challenges the finding of breach of paragraph 1(2)(a) of the interim injunction order on grounds of error in relation to the standard of proof, the enforceability of the injunction, the absence of evidence and other serious procedural failings said to vitiate the contempt finding. In other words, it is in substance a challenge to the contempt order. There is no challenge to the nature or length of the sentence imposed by the committal order.
The difficulty that has emerged at a late stage is that the appellant sought permission to appeal the contempt order by an application dated 10 February 2021, and permission was refused on all grounds by Males LJ by order dated 8 March 2021. That order is a final order disposing of the appeal against the contempt order. A preliminary question therefore arises as to whether the current appeal is an abuse of the court's process. It is only if not that the substantive appeal can proceed. This judgment addresses that preliminary question. It does not address the substantive appeal.
Mr Nambiar has been represented before us by Mr Gary Lewis, who appeared on his behalf at the sanction hearing but not at the trial. Mr Lewis prepared and signed the grounds of appeal and skeleton argument dated 10 February 2021, and the grounds and skeleton argument served in support of the current appeal. He contended that this appeal is not an abuse in the circumstances of this particular case. In any event, even if there is an abuse, the appellant cannot be estopped or fettered from exercising the statutory right to appeal under section 13(1) AJA 1960. Alternatively, if he is wrong about those submissions, Mr Lewis submitted that the court retains discretion to hear the appeal notwithstanding. Finally, as a fallback, he invited the court to exercise its residual power to re-open the refusal of permission to appeal by Males LJ under CPR 52.30.
Solitair is now in voluntary liquidation (and has been since 31 March 2022) and has played no part in the proceedings before this court.
The background
In short, Solitair's case below was that from April 2019 onwards Mr Nambiar breached his duties as a director by seeking to divert business, customers and employees from Solitair, including by the misuse of its confidential customer database, the misappropriation for himself of the opportunity to take a lease of the Olympos Hotel in Turkey and of the hotel's database, the misappropriation of its funds, the soliciting of some employees to resign and others to advance his interests whilst still working for Solitair, the sabotage of its website whilst at the same time using a domain name (www.gosingles.co.uk) which was its property, and setting up the “Go Singles” website. Solitair sought an injunction and claimed damages for breach of the fiduciary duties owed to it by Mr Nambiar.
Solitair obtained an interim injunction at a hearing on 27 November 2019 (made by Philip Marshall QC, sitting as a Deputy High Court Judge) at which Mr Nambiar was present. The precise terms of the interim injunction were finalised very shortly after the hearing and approved judicially by email sent to the parties' respective counsel on 29 November 2019. Paragraph 1(2)(a) prohibited Mr Nambiar and his company, Go Singles Ltd (“GSL”), among other things, from “ in any way” using “(a) the customer lists or customer details (including contact data, personal information, customer orders and associated details) used in [Solitair's] business prior to 4 April 2019 whether derived from [Solitair's] documents (including electronic documents) or obtained by [Mr Nambiar] during his directorship of [Solitair] …” Subsequently Solitair also pursued allegations of contempt on the basis that Mr Nambiar breached this (and other) terms of the interim injunction order.
The contempt order recorded the finding made by the judge that Mr Nambiar breached paragraph 1(2)(a) of the interim injunction restraining him from using customer lists and details used by Solitair in its business before 4 April 2019. The breach entailed Mr Nambiar causing a company, known as “Mailchimp”, which had previously provided automated e-mail mail shot services to Solitair, to send a marketing mail shot on behalf of GSL on 19 December 2019, to an unidentified number of customers, using customer details used in Solitair's business prior to 4 April 2019. The central evidence of this was the evidence of one such customer, Amanda Wiseman, who gave evidence which was accepted by the judge as honest, reliable and consistent with the documentary and other reliable evidence in the case, and inconsistent with the evidence and explanations given by Mr Nambiar. Mr Nambiar's consistent case at trial of the claim and the committal application had been that he never took any customer details from the Solitair database and thus did not cause Mailchimp to send any mail shots to such customers at any time. This was rejected by the judge. He expressed himself satisfied to the criminal standard that the injunction had been breached by Mr Nambiar in this regard. This was an isolated breach.
The judge adjourned the question of sanction for contempt. At the conclusion of his first judgment, the judge said this:
“132. Without anticipating the outcome of the further hearing which will have to be held to deal with sentence, I have already considered the relevant principles so far as sentencing for contempt of court are concerned which have recently been set out in helpful detail in the judgment of Snowden J in the Minstrel Recruitment case referred to above, at [238] to [246]. However, it may be of some benefit to Mr Nambiar if I indicate that on the basis of the evidence I have heard and the findings I have made thus far and, thus, without taking into account any matters which may mitigate the apparent seriousness of the breach, my provisional conclusion is that the breach is so serious as to pass the custodial threshold and that a short custodial sentence of 2 months, which may properly be suspended for 12 months, would be justified.”
On 13 January 2021 the judge listed the case for a further hearing on 27 January 2021 to deal with all matters consequential on the judgment. He ordered that the time for any appeal from the judgment “shall be extended to a date to be fixed at the hearing on 27 January 2021.”
At the hearing on 27 January 2021, attended by trial defence counsel for Mr Nambiar, and by Mr Lewis, who appeared in relation to sanction only, the sanction hearing was listed for 17 March 2021. It is unnecessary to recite all consequential orders made, but I note that a permanent injunction and money judgment order was made on the claim; and paragraph 9 of the 27 January order recorded the breach of paragraph 1(2) of the interim injunction order. By paragraph 20 the judge extended time for any appeal to 4pm on 10 February 2021. There is nothing to suggest that a longer or different extension of time for appealing was sought.
At the sanction hearing on 17 March, Mr Nambiar was represented by Mr Lewis. Mr Nambiar produced a further witness statement (his fifth), made on 10 March 2021, in which he gave evidence that ran directly counter to the evidence he had adduced at trial and to the contempt finding made by the judge on the evidence available at trial. He now said for the first time that he had taken reasonable steps to ensure compliance with the terms of the interim injunction and that the mailshot sent on 19 December 2019 could only have been sent...
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Deutsche Bank AG v Sebastian Holdings Inc.
...671 at [19] Lord Justice Coulson adverted to this issue, but did not decide it. 37 A similar issue arose in Nambiar v Solitair Ltd [2022] EWCA Civ 1135. The judge made an order recording his finding of contempt against Mr Nambiar, and later made an order committing him to prison. Mr Nambia......