ABC v DEF

In committal proceedings, affidavit witnesses do not automatically have to attend for cross-examination. A party seeking cross-examination should apply in advance for directions requiring attendance. An adjournment is unnecessary where the proposed questioning could not affect the outcome and would cause no material disadvantage.

Serious and sustained breaches of a High Court injunction may justify imprisonment, particularly where the defendant has previously been imprisoned and warned that further breaches would have serious consequences. Mental illness may mitigate culpability but does not excuse deliberate breaches where the defendant remains responsible for his conduct. A suspended custodial sentence may properly balance punishment, deterrence and the prospects of future compliance.

The claimant applied to commit the defendant for contempt for breaches of a permanent injunction made in 2008 under section 3 of the Protection from Harassment Act 1997. The defendant had previously been committed to prison for breaches of the interim injunction, but had later been permitted to purge his contempt.

The renewed breaches consisted principally of threatening and abusive emails sent while the defendant was outside the jurisdiction. The defendant admitted that the emails breached the injunction. He nevertheless sought an adjournment for cross-examination, challenged delay and alleged abuse of process, relied on his mental health, and disputed the appropriate sanction. The central issues were whether the applications should proceed and what penalty was proportionate.

1. The applications proceeded and the contempts were proved. The defendant’s application was dismissed. The court imposed seven months’ imprisonment, suspended for two years.
2. Committal applications must be supported by affidavits containing the evidence relied upon under CPR 81.10. CPR 81.28 permits the court to direct attendance for cross-examination, but creates no automatic obligation for affidavit witnesses to attend. A party wishing to cross-examine should seek directions before the hearing. An attempt to demand cross-examination for the first time at the hearing would undermine fairness, efficiency and the overriding objective in CPR 1.1. The approach was consistent with Hammerton v Hammerton [2007] EWCA Civ 248, which recognised the criminal-charge character of committal proceedings for Article 6 purposes.
3. An adjournment may be appropriate where the absence of cross-examination would materially disadvantage the defendant. Here, however, the proposed questioning concerned the claimant’s knowledge of the defendant’s mental health, possible proceedings in the United States, police involvement, listing while the defendant was abroad, the timing of the second application and the claimant’s dealings with the medical expert. None could affect the outcome. The defendant accepted that he remained responsible for his conduct.
4. The delay did not amount to abuse of process. The first application was issued promptly when the defendant indicated that he intended to return to the jurisdiction. The claimant was justified in not pursuing committal while the defendant was absent. The second application was validly issued after the defendant re-engaged with the court, and the fact that summary criminal proceedings would have been time-barred was irrelevant.
5. The emails constituted serious and sustained breaches. The defendant’s mental health provided significant mitigation but did not justify or excuse the conduct. Immediate imprisonment would risk aggravating his condition, while continued sobriety and medication offered a realistic prospect of compliance. A suspended custodial term therefore reflected the seriousness of the breaches while protecting the claimant and his family and promoting future compliance.