S-C v H-C & Anor

A committal order must state with complete precision the conduct required or forbidden. Ambiguity prevents proof of contempt. Where an unusual order binds litigants who may not understand English procedure, strict observance of committal formalities, including an appropriate penal notice, is particularly important.

An order prohibiting disclosure of documents may encompass communication of their contents, but it must clearly identify that conduct. A litigant is also entitled to discuss information arising from proceedings with legal advisers under legal professional privilege. Such discussion does not constitute contempt.

The appellant appealed against a Birmingham County Court order finding her in contempt and fining her £100. The alleged contempt concerned an order prohibiting disclosure of documents filed in family proceedings. The county court held that she had breached it by communicating information from a psychologist’s report to her Turkish lawyer.

The appellant maintained that she had not disclosed the report itself. The appeal raised whether the original order was sufficiently precise, whether the absence of a penal notice was material, and whether discussion with a foreign legal adviser could constitute contempt.

1. Disposition. The appeal was allowed unanimously and the committal order, including the £100 fine, was set aside. The order was manifestly unsound for several reasons, both individually and cumulatively.
2. The original order contained no penal notice or warning that breach could constitute contempt punishable by imprisonment. Committal formalities must ordinarily be observed strictly, although a defect may be overlooked where it does not affect the justice of the case. Observance was particularly important because the order was unusual, bound both parties, and affected a litigant in person and persons who were not English.
3. An order intended to carry penal consequences must state precisely what conduct it requires or prohibits. Contempt cannot be established through breach of an ambiguous order or one that fails to specify the relevant act. The appellant had not disclosed the psychologist’s report. The order prohibited disclosure of documents, but did not prohibit discussing information contained in them.
4. An order protecting confidential documentary information may expressly prohibit oral or other communication of its contents. If that is the mischief addressed, however, the order must say so. The court could not enlarge the order retrospectively by treating discussion of the report as disclosure of the document.
5. A litigant is entitled, through legal professional privilege, to discuss issues and information arising from proceedings with legal advisers. The appellant therefore could not properly be committed for discussing the report with her Turkish lawyer. She was also entitled to show that lawyer the court order: section 12(2) of the Administration of Justice Act 1960 provided an exception, and the order itself was not a document filed in the proceedings.
6. Permission to appeal was unnecessary under rule 52.3(1)(a)(i) of the Civil Procedure Rules because the challenged decision was a committal order. The appellant could also have declined to give evidence and submitted that she had no case to answer, although this point was not necessary to the disposition.

1. Court of Appeal (Civil Division): In [2010] EWCA Civ 21, the court unanimously allowed the appeal and set aside the committal order and fine.
2. Birmingham County Court: His Honour Judge Plunkett found the appellant in breach of an earlier non-disclosure order and, on 18 June 2009, made a committal order imposing a £100 fine. No citation is stated.