AF Noonan (Architectural Practice Ltd) v Bournemouth & Boscombe Athletic Football Club Ltd

Publication of information relating to proceedings held in private is not, by itself, contempt of court. Under section 12 of the Administration of Justice Act 1960, contempt arises only where the proceedings fall within specified statutory categories or the court, having power to do so, has expressly prohibited publication. An order under the Civil Procedure Rules rule 39.2.3 that a hearing be private is procedural. It does not itself amount to an express prohibition under section 12.1(e). In a penal jurisdiction, contempt cannot be founded on implication or inference. Other remedies for unauthorised publication may remain possible, but their availability was left open.

The appellant architectural practice presented a winding-up petition against the respondent football club. The proceedings were ordered to be heard in private under Civil Procedure Rules rule 39.2.3(a) and (c). After the private hearing, the club’s chairman disclosed information relating to matters considered there.

The appellant applied for the club to be fined for contempt of court. David Richards J struck out the application. The appeal concerned whether an order for a private hearing itself amounted to an express prohibition on publication under section 12.1(e) of the Administration of Justice Act 1960, and whether contempt could otherwise arise from the private-hearing order.

Appeal dismissed. Lord Justice Buxton gave the leading judgment. Sir Igor Judge agreed with his reasoning and Sir Anthony Clarke MR agreed with both judgments.

1. Section 12 of the Administration of Justice Act 1960 is the starting point for determining whether publication of information from private proceedings constitutes contempt. Publication is not contempt merely because the proceedings were held in private. Contempt arises only if one of the specified categories in section 12.1(a-d) applies or the court has expressly prohibited publication under section 12.1(e).
2. The word expressly in section 12.1(e) requires an express prohibition. An order under Civil Procedure Rules rule 39.2.3 that a hearing be held in private is concerned with the circumstances and procedure for private hearings. It does not itself prohibit publication, either expressly or by implication.
3. The appellant’s arguments that the private-hearing order created a contempt obligation, or itself fell within section 12.1(e), were rejected. Treating the order as an implied prohibition would largely deprive section 12 of effect. Penal consequences cannot be imposed on the basis of mere inference.
4. The court noted the guidance in Scott v Scott [1913] AC 417, while observing that section 12 largely overtook the relevant part of that decision. The availability of other remedies, including an injunction against publication, was not decided. The appeal was therefore dismissed because the contempt jurisdiction was not engaged.

• Court of Appeal (Civil Division): In [2007] EWCA Civ 848, the appeal was unanimously dismissed.
• High Court of Justice, Chancery Division: David Richards J struck out the appellant’s application to fine the respondent for contempt arising from publication of information relating to a private hearing.