Barclay v Tuck

In committal proceedings, the applicant must prove beyond reasonable doubt both the breach of a clear order and the respondent’s ability to comply. For a positive order, the court first construes the order’s express terms, then determines whether the required act was done and was within the respondent’s power. “Best efforts” requires genuine efforts and any reasonable step which could and should have been taken, but does not impose an absolute obligation to achieve the result.

An ambiguous order cannot support committal. A requirement to withdraw a webpage may, as a matter of fact and degree, be satisfied by a radical change making its content wholly different, even though the URL remains active. The application for committal was dismissed.

The claimant sought to commit the defendant for contempt for alleged breaches of two High Court orders. The First Order enforced a French judgment requiring withdrawal of webpages at seven internet addresses. The Second Order required further steps, including best efforts to deactivate two inaccessible blogs, provision of access information, and a written response to proposed excisions from another blog.

The defendant accepted that some blogs had been deactivated but disputed that he could access the remaining blogs. He also contended that the Second Order superseded the First Order and that he had complied with the requirement concerning proposed excisions. The central issues were the construction and enforceability of the orders, the defendant’s ability to comply, and the evidential consequences of his failure to give oral evidence.

1. The court dismissed the consolidated committal application. None of the alleged breaches of either order was proved.

2. The absence of a penal notice on the Second Order could, in an appropriate case, be waived where no injustice was caused. The court did not need finally to determine that issue because no breach of the Second Order was established.

3. The defendant’s uncalled witness statement was admissible only, if at all, as hearsay. The court distinguished the evidential fact that emails had been sent or received from the truth of assertions contained in them. The defendant’s failure to give evidence did not justify an adverse inference where the circumstantial evidence did not compel the conclusion that he had access to the relevant passwords and email addresses.

4. “Best efforts” had the same meaning as “best endeavours” and “all reasonable endeavours”. It required proof that the defendant had not genuinely tried to achieve deactivation and had failed to take a reasonable step which he could and should have taken. It did not require him to achieve deactivation absolutely. The defendant’s repeated correspondence, cooperation with the expert, authorisation of others to act, and notarised declaration were sufficient to prevent the alleged failure being proved. A DMCA notice was not a reasonable step because the procedure was inappropriate to the circumstances.

5. The requirement to provide a written response to proposed excisions did not require acceptance of any excision. Since the provision did not identify the extent of any required substantive response, it was ambiguous and incapable of enforcement by committal.

6. The Second Order facilitated compliance with, but did not supersede, the First Order. For the two inaccessible blogs, breach was not proved because complete withdrawal was not shown to be within the defendant’s power. Setting them to private view mode also strongly supported the conclusion that they had been withdrawn for present purposes.

7. “Forthwith” was capable of fixing the time for compliance with a mandatory order. Modification of a webpage ordinarily did not amount to withdrawal, but a sufficiently substantial change could do so as a matter of fact and degree. The revised webpage contained no significant part of the original content and was therefore tantamount to withdrawal. Even if there had been a technical breach, it would not have justified committal.