Inplayer Ltd & Anor v Thorogood

Committal proceedings require the safeguards applicable to a criminal charge. A court must decide only the contempts identified in the application notice. If further allegations arise, the applicant must amend the notice and the alleged contemnor must receive any necessary adjournment.

The court must also explain the right not to give evidence and must not manage linked civil proceedings so as effectively to compel testimony on the committal allegations. An alleged contemnor must be told of the entitlement to legal aid and given an opportunity to obtain representation. Findings of contempt cannot stand where these safeguards have been denied, even if the evidence appears strong or a later sentencing hearing offered an opportunity to answer the allegations.

The claimants brought Chancery proceedings alleging that Jack Thorogood had breached contractual and fiduciary duties by establishing and operating a competing business. An interim consent order required him to swear an affidavit identifying breaches of a shareholders’ agreement.

At a combined trial and committal hearing, before Rose J in the High Court proceedings HC13F00948, the judge rejected the contempt allegations pleaded by the claimants but found two unpleaded contempts in statements made in Mr Thorogood’s affidavit. She later sentenced him to concurrent terms of imprisonment totalling six weeks.

Mr Thorogood appealed, principally alleging lack of notice, loss of his right to silence through the combined hearing, and lack of information about legal aid.

1. Appeal allowed. The findings of contempt could not stand and were to be quashed. The procedural defects denied Mr Thorogood safeguards required in committal proceedings.

2. The judge should have confined the committal hearing to the contempts alleged in the application notice. Mr Thorogood had not been informed before judgment of the two affidavit-based contempts found against him. This breached article 6.3(a) of the European Convention on Human Rights and the common-law requirement that an accused person know the charge. If a judge considers further contempts require consideration, the proper course is to invite an amendment and grant any necessary adjournment.

3. An alleged contemnor has a right to remain silent: Comet Products UK Ltd v Hawkex Plastics Ltd [1971] 2 QB 67. The court must explain that right and the risk of adverse inferences. A combined trial and committal hearing that effectively forces the person into the witness box is a serious procedural error, as illustrated by Hammerton v Hammerton [2007] EWCA Civ 248. The warning against self-incrimination given here was insufficient because Mr Thorogood was not told that he need not give evidence.

4. Committal proceedings have the character of criminal proceedings. Mr Thorogood should have been told of his legal-aid entitlement and given an opportunity to obtain lawyers of his choice. The failure breached common-law fairness and article 6.3(c) of the Convention.

5. The appellant nevertheless could not recover the costs of his 35-page, prolix and non-compliant skeleton argument. The court endorsed the requirements in the relevant practice directions for concise and usable appellate skeletons.

• Court of Appeal (Civil Division) — Allowed the appeal and quashed the findings of contempt: [2014] EWCA Civ 1511.
• High Court of Justice, Chancery Division — Rose J found two contempts not pleaded in the committal application and imposed concurrent sentences of 42 and 28 days’ imprisonment: HC13F00948.