Al-Ko Kober Ltd & Anor v Sambhi

To establish contempt for breach of an injunction, the applicant must prove beyond reasonable doubt that the respondent knew the order’s terms, breached it, and knew the facts making the conduct a breach. Circumstantial evidence may establish contempt where its cumulative effect excludes realistic innocent explanations.

Prohibitory injunctions are construed strictly. Where there is reasonable doubt whether a publication has substantially the prohibited effect, the respondent receives the benefit of that doubt. Procedural defects may be waived where the respondent has effective notice and a proper opportunity to answer the allegations. A respondent’s exercise of the right to silence cannot generate adverse inferences.

The claimants applied to commit the defendant for contempt after an interim injunction prohibited publication of statements concerning the claimants’ caravan stabiliser products and business. The injunction had been granted by Whipple J in [2017] EWHC 2474 (QB).

The defendant was alleged to have republished prohibited videos through multiple pseudonymous YouTube accounts and to have distributed a handout at a trade exhibition. The central issues were whether he was responsible for the publications, whether the publications breached the injunction, and whether procedural requirements concerning service and proof had been satisfied.

1. Contempt and procedure. The court applied the requirements identified in Masri v Consolidated Contractors International Company SAL [2011] EWHC 1024 (Comm): knowledge of the order, conduct amounting to breach, and knowledge of the facts making the conduct a breach. The court could determine contempt before trial, since the jurisdiction principally secures compliance with court orders. Personal service of the injunction and application notice was dispensed with because the defendant had actual and effective notice and a proper opportunity to meet the allegations.
2. Proof. The claimants bore the burden of proving contempt beyond reasonable doubt. The court adopted the criminal-law approach to circumstantial evidence, considering the reliability of each strand and whether the cumulative evidence excluded realistic possibilities consistent with innocence. The defendant’s silence attracted no adverse inference.
3. Meaning and breach. The court applied the approach in McCann v Bennett [2013] EWHC 283 (QB) and Jeynes v News Magazines Ltd [2008] EWCA Civ 130. Publications were read as a whole and objectively. The injunction was construed strictly, and ambiguity was resolved in the defendant’s favour.
4. The evidence concerning timing, common technical access, duplicated videos, distinctive content and the defendant’s repeated use of the term “baboon” established beyond reasonable doubt that he had uploaded all videos relied upon. The videos conveyed prohibited statements or statements substantially to the same effect. The defendant was therefore guilty of contempt in relation to the videos.
5. The exhibition handout did not clearly convey the prohibited elements of product failure or lying to the public. The court was not sure that it was substantially to the same effect as the injunction. That ground was dismissed. The court adjourned the question of penalty and consequential orders.