Hydropool Hot Tubs Ltd v Roberjot & Anor

A court may retrospectively dispense with personal service of a mandatory order before enforcing it for contempt, but the discretion is wide and should be exercised sparingly. Awareness of the order and its penal consequences may justify dispensing with service where the respondent was represented, had notice of the application, understood the order and purported to comply with it.

Knowingly swearing a false affidavit remains capable of constituting criminal contempt. CPR rule 32.14 governs false statements verified by a statement of truth and does not remove or alter the existing law concerning sworn affidavits. The criminal standard of proof applies.

Hydropool applied to commit John Roberjot and Paramount Hot Tubs Ltd for contempt. The allegations concerned non-compliance with orders requiring disclosure of the recipients of marketing text messages and copies of customer databases, together with allegedly false affidavits.

The orders had not been personally served, although the defendants had been represented at the hearings, had notice of the applications and had received orders bearing penal notices. The central issues were whether personal service should be dispensed with, whether the disclosure obligations had been breached, and whether knowingly swearing a false affidavit could be pursued as contempt in the application.

1. Personal service. The court dispensed retrospectively with personal service of the orders. The defendants were represented by solicitors and counsel, had not opposed the orders, were clearly aware of their terms, and had received orders bearing prominent penal notices. In the circumstances, it was proved beyond reasonable doubt that they understood both the orders and the consequences of disobedience. The discretion under RSC Order 45 rule 7(7) was therefore properly exercised, though such a discretion should be used relatively sparingly.
2. Established breaches. The defendants breached paragraph 3(b) of Kitchin J’s order because they supplied telephone numbers rather than a list identifying the recipients of the 711 text messages. They breached paragraph 7 of Floyd J’s order by knowingly providing a partly false list of recipients. They also breached paragraph 8 by failing, within the specified time or before the hearing, to provide an exact copy of Paramount’s database. Later compliance did not undo those established breaches.
3. Unproved allegations. The court was not satisfied beyond reasonable doubt that the defendants knowingly supplied a false first list, that the second affidavit was knowingly false when sworn, or that the Weller service spreadsheet was not an exact copy. The inconsistencies in the evidence were insufficient to establish those allegations to the criminal standard.
4. False affidavit. Knowingly swearing a false affidavit is criminal contempt because an affidavit is sworn evidence and includes a jurat. CPR rule 32.14 applies to false statements in documents verified by a statement of truth, but did not apply to, or create a procedural bar against, the admitted false affidavit. The High Court retained an inherent jurisdiction to punish criminal contempt summarily in civil proceedings, to be exercised with great caution. It was appropriate to do so because the contempt was closely linked to the other alleged contempts and was admitted.
5. Hydropool established four contempts: the breach of paragraph 3(b) of Kitchin J’s order, the breach of paragraph 7 of Floyd J’s order, the breach of paragraph 8 of that order concerning Paramount’s database, and the knowingly false fourth affidavit.

First instance decision on an application to punish the defendants for contempt of court. The judgment does not state any subsequent appellate history.