Royal Brompton & Harefield NHS Foundation Trust & Ors v Shaikh

In committal proceedings for alleged breaches of an injunction, the claimant must prove each alleged contempt against the defendant to the criminal standard. Responsibility may be established by compelling circumstantial evidence, including distinctive recurring themes, established conduct and the absence of any realistic alternative explanation. The court must assess each allegation individually and give the defendant the benefit of the doubt where the evidence remains insufficient. Continuing publication may constitute a breach where the defendant is shown to be responsible and appears able to remove the material, unless evidence suggests that compliance was impossible or was attempted unsuccessfully.

The claimants obtained judgment in default and an injunction on 9 May 2014 restraining the defendant from harassing or communicating with them, impersonating them or identified employees online, and publishing specified or similar defamatory material. The defendant, a former hospital employee, was alleged to have committed numerous subsequent breaches through blogs, social-media accounts, emails, referrals and videos.

The claimants applied for committal. The defendant gave no evidence and was under no obligation to do so. The central issues were whether the publications constituted breaches of the injunction, whether responsibility for them could be attributed to the defendant, and whether each allegation was proved to the criminal standard.

1. Standard and burden of proof. Each allegation of contempt had to be addressed individually. The claimants bore the burden of proving both the relevant breach and the defendant’s responsibility to the criminal standard. The defendant’s decision not to give evidence did not relieve the claimants of that burden.
2. Inference and attribution. Criminal contempt may be proved by inference. The court could draw a strong inference from the evidence as a whole where the material displayed the defendant’s distinctive themes, recurring obsessions and established modus operandi. The inference was strengthened where there was no evidence suggesting another plausible author or participant.
3. Insufficient evidence. Allegations were not established merely because responsibility appeared likely. The court gave the defendant the benefit of the doubt where the evidence was thin or failed to reach the criminal standard, including certain social-media material and one video.
4. Continuing publication. Where material published before or after the injunction remained available online, responsibility for the continuing breach could be inferred where the evidence linked it to the defendant and there was no evidence that he lacked the ability to remove it or had tried and failed to do so.
5. Disposition. Responsibility for contempt was established in relation to allegations 1–6, 8, 10–13? No: allegations 12, 15–24, 26–29, 31–32, 34–37 and 40–45, subject to the specific allegations expressly given the benefit of the doubt. The court found 37 breaches proved. Consideration of the appropriate sanctions was adjourned to a later hearing.