Double Negative Ltd v Mortelette & Ors

A court may proceed with a contempt hearing without representation where the respondent has received repeated opportunities to obtain legal advice, has made no diligent effort to do so, and an adjournment would cause undue prejudice. A knowingly deliberate failure to comply with an order requiring information to be provided by affidavit may constitute contempt, particularly where earlier information was incomplete or false. An injunction prohibiting communication about proceedings or matters arising from an application may prohibit communications between defendants which facilitate coordination of their accounts. The contemnor’s lack of appreciation that the communication breached the order may be relevant to penalty but does not prevent a finding of breach.

The claimant, a visual-effects business, applied under Civil Procedure Rules 1998 Part 81 to commit the fourth defendant, Mazlum Altun, for contempt. The alleged contempts concerned failure to swear and serve an affidavit required by an injunction and communication with the third defendant after service of an order prohibiting communication about the proceedings and matters arising from the application.

The contempt application had previously been considered against the third defendant, and the fourth defendant had been given further opportunities to obtain legal representation. He appeared in person at the final hearing and sought another adjournment. The central issues were whether the alleged breaches were proved and whether the court should proceed to penalty.

1. Proceeding without representation. The court refused a further adjournment. The fourth defendant had been given repeated opportunities to obtain representation, had not made a seriously diligent effort to do so, and there was no realistic prospect that representation would identify an arguable defence to the alleged breaches. A further delay would prejudice the claimant and would not serve the interests of justice (paras [14]–[16]).
2. Failure to provide an affidavit. The injunction required the information specified in paragraph 8 to be provided in sworn form by affidavit within the prescribed period. That obligation was straightforward. The fourth defendant knowingly failed to comply and offered no conceivable excuse. His earlier email contained some information but also falsehoods, making a full, honest and accurate affidavit especially important. The failure constituted contempt (paras [17]–[28], [32]).
3. Prohibited communication. The court was not sure that the fourth defendant understood that his contact with the third defendant directly informed him of the proceedings or warned him that proceedings might be brought. However, the communication disclosed facts and matters arising from the application, including the fourth defendant’s publication of the material online. It therefore fell within the prohibition in paragraph 11. The purpose of that aspect of the order included preventing coordination between defendants about their responses to the claim. The breach was proved even though the fourth defendant may not have appreciated its legal significance (paras [29]–[32]).
4. Penalty. The court found and declared both contempts but adjourned penalty. The fourth defendant faced a possible loss of liberty, and the court considered it unjust to impose penalty without allowing a final opportunity to obtain representation and seek to comply with the affidavit obligation. Penalty was reserved to the judge and listed for a further hearing in the week commencing 30 April 2018 (paras [33]–[35]).

This was a first-instance contempt hearing. The proceedings had previously been dealt with against the third defendant, and the fourth defendant’s case had been adjourned twice to allow him to seek legal representation. The court proceeded to determine the allegations but reserved penalty for a further hearing.