Fulham Football Club Ltd v Mr Craig Kline
| Jurisdiction | England & Wales |
| Judge | Mr Justice Butcher |
| Judgment Date | 25 November 2020 |
| Neutral Citation | [2020] EWHC 3170 (Comm) |
| Date | 25 November 2020 |
| Docket Number | Case No: CL-2018-000750 |
| Court | Queen's Bench Division (Commercial Court) |
[2020] EWHC 3170 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Butcher
Case No: CL-2018-000750
Nick De Marco QC and Adam Baradon (instructed by Simmons & Simmons LLP) for the Claimant
The Defendant appeared in person
Hearing dates: 2, 3, 12 November 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
There are two applications by the Claimant (“Fulham”) for the committal of the Defendant (“Mr Kline”). One of those applications was previously stayed, and is restored pursuant to an order of the Court. Mr Kline has issued an application to set aside that restoration.
I heard these applications in private for the reasons given in my judgment delivered on 30 October. There were hearings on 2 and 3 November, and a further hearing on 13 November. The parties served significant amounts of material, called evidence (and Mr Kline himself gave evidence), and made written and oral submissions, all of which I have considered. I give this judgment in public, in accordance with CPR rule 81.8(6). I have however endeavoured not to state in this judgment matters which, to make public, would undermine the object of the hearing.
The genesis of these applications as it appears from the evidence before the court can be summarised as follows:
(1) Mr Kline was formerly employed by Fulham, a relationship which came to an end in 2017. Under an Agreement of 22 November 2017, various terms were agreed between the parties, which included a number of confidentiality and non-disparagement undertakings given by Mr Kline.
(2) Fulham contended that Mr Kline breached those undertakings. It accordingly applied for an injunction. On 23 November 2018 various of the undertakings were repeated and given force by interim injunctions granted by Moulder J. At that hearing, which was ex parte on notice, Moulder J warned Mr Kline that he should comply with the order which she was then making, and urged him to take legal advice if he was unclear as to its scope. Moulder J's order, which contained a penal notice, was thereafter served on Mr Kline.
(3) Fulham contended that Mr Kline breached Moulder J's order, and applied to commit him for contempt. The application was personally served on Mr Kline. It was stayed pursuant to an order of Teare J, made by consent, dated 4 March 2019, after Mr Kline had sworn and served an affidavit admitting the 42 breaches of Moulder J's order alleged by Fulham, apologising to the Court for those breaches, and undertaking to commit no further breaches of that order.
(4) Fulham contends that Mr Kline again breached the Moulder J order, and on 16 April 2020 issued a second committal application. On the same date it also applied to restore the first committal application pursuant to an express liberty to restore in paragraph 2 of the order of 4 March 2019.
(5) By order of 24 April 2020, Moulder J gave permission to restore the first committal application, but also gave Mr Kline 7 days from service of the order to apply to set it aside or vary it.
(6) By his application dated 5 May 2020, Mr Kline applied to set aside the restoration order.
(7) Thus, there come before me the two committal applications and the set aside application.
I will deal first with Mr Kline's set aside application. This was supported by a statement from Mr Kline dated 4 May 2020. In that statement Mr Kline said that the admission of breaches which had been made in his affidavit and which had led to the consent order of 4 March 2019, was at best a qualified quasi-admission, and one which did not distinguish between de minimis, technical or justified breaches, and actionable breaches. I do not consider that it is open to Mr Kline to disavow the affidavit which he swore, which, with the apology he made and his promise not to breach Moulder J's order again, had led to the stay of the first committal application by the order of 4 March 2019. Given that Fulham contends that there have been further breaches of Moulder J's order, which, if established would be a breach of the undertaking set out in the consent order of 4 March 2019, I do not see any valid grounds on which Mr Kline can set aside the restoration of the first committal application. That restoration allows this court now to consider whether there should be any sanction for the breaches which Mr Kline admitted in his admissions affidavit, if it finds that there have been further breaches of the Moulder J order.
I turn to consider the two committal applications which are before the Court.
It is appropriate to summarise, first, the jurisdiction which the Court is being asked to exercise. The following are relevant features of that jurisdiction:
(1) It is for the claimant to prove the contempt alleged to the criminal standard of proof. As set out in the White Book 3C-17:
“A person is guilty of contempt by breach of a court order only if all the following factors are proved to the criminal standard of proof: (a) having received notice of the order (being an unambiguous order) the contemnor did an act prohibited by the order or failed to do an act required by the order within the time set by the order; (b) he...
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