Masri v Consolidated Contractors International Company SAL & Ors

A corporate contemnor requires permission to appeal against a finding of contempt or a financial sanction. The exception in rule 52.3(1)(a)(i) of the Civil Procedure Rules 1998 applies only to an order committing an individual to prison, including a suspended committal order.

The exception protects personal liberty. It does not extend to every order made in the process of punishing contempt. Neither the broader appeal right under the Administration of Justice Act 1960 nor the procedural treatment of fines as contempt sanctions expands the meaning of “committal order”. Case-specific anomalies do not justify a strained construction of the rule.

The appellant companies were found in contempt in the Commercial Court for failing to comply with enforcement orders obtained by Mr Masri following an unsatisfied judgment of about $75 million. No sanction had yet been imposed. Christopher Clarke J subsequently granted conditional permission to appeal against the contempt findings.

The companies contended that permission was unnecessary because any order forming part of the process of punishing contempt was a “committal order” within rule 52.3(1)(a)(i) of the Civil Procedure Rules 1998. The Court of Appeal had to determine whether corporate contemnors, which could be fined but not imprisoned, could appeal the findings of contempt as of right.

1. The companies required permission to appeal. The natural meaning of “committal order” in rule 52.3(1)(a)(i) of the Civil Procedure Rules 1998 is an order committing a person to prison. A corporation cannot be committed and therefore cannot invoke that exception to the general permission requirement. The three exceptions in rule 52.3(1)(a) share the purpose of protecting personal liberty. A financial penalty may be severe, but it does not engage the considerations arising from deprivation of liberty.

2. Section 13 of the Administration of Justice Act 1960 provides an appeal from an order or decision made in the exercise of the contempt jurisdiction. That appeal regime was altered by section 54 of the Access to Justice Act 1999 and the rules made under it. Consequently, section 13 does not confer an unqualified right of appeal where rule 52.3 requires permission.

3. Order 52 rule 9 of the Rules of the Supreme Court did not give “committal” an extended meaning embracing fines. It merely preserved the court’s power to impose financial penalties and applied the relevant contempt procedure, with necessary modifications, to applications for those penalties.

4. The established authorities supported a liberty-based construction. An immediate or suspended order committing an individual to prison falls within the exception. Other decisions made in the exercise of the contempt jurisdiction do not. The contrary observation in S-C (Children) [2010] EWCA Civ 21, concerning a fine, was expressly obiter, was made without adversarial argument or citation of authority, and was wrong.

5. The possible procedural disadvantage to an individual alleged to be responsible for the companies’ contempt did not justify a strained interpretation. A hard-edged rule may produce anomalies, and the suggested difficulty arose from the unusual arrangements made in this litigation.

Lady Justice Hallett and Lord Justice Toulson agreed with Lord Justice Maurice Kay. The companies could proceed only by obtaining unconditional or less conditional permission from the Court of Appeal.

1. Court of Appeal (Civil Division): Held unanimously in [2011] EWCA Civ 898 that the corporate contemnors had no appeal as of right and required permission to appeal.

2. Commercial Court: Christopher Clarke J found the companies in contempt in [2011] EWHC 1024 (Comm). No sanction had yet been imposed. The judge later granted permission to appeal subject to conditions which the companies did not satisfy within the prescribed period.