Sarayiah v Williams & Anor

Committal for contempt requires a clear order and a clear breach proved to the criminal standard. An ambiguous order cannot support committal where two possible constructions exist. Procedural failures concerning service or a penal notice may be excused where they have caused no injustice to the respondent. The court may accept a respondent’s evidence about the extent of disclosure where there is no credible evidence to the contrary. A technical breach which causes no practical prejudice may not justify a penalty.

The Applicant sought enforcement of an order made by Fraser J in Norwich Pharmacal proceedings and committal of the Respondents for 42 alleged breaches. The order concerned disclosure of information and documents relating to complaints about the Applicant’s conduct. The principal dispute concerned whether the Respondents were required to disclose the identities of female complainants.

The Applicant also sought retrospective relief for failures to effect personal service and attach a penal notice. A separate application concerning the limitation period for prospective defamation proceedings was adjourned. The court determined the committal application and the alleged breaches.

1. Procedural defects. The Applicant was permitted to proceed despite failures concerning personal service and the penal notice. The relevant question was whether those omissions caused injustice to the Respondents. In the circumstances, they were unlikely to have caused significant injustice: see Nicholls v Nicholls [1997] 1 WLR 314, Jolly v Hull [2002] 2 FLR 69 and Masri v Consolidated Contractors International Co SAL [2010] EWHC 2458 (Comm).
2. Ambiguous order. The sealed order contained square brackets around the reference to the complainants’ identities. It was therefore ambiguous. The Applicant could not prove a contemptuous breach to the criminal standard on one of two possible constructions. The principle stated in Redwing Ltd v Redwing Forest Products Ltd [1947] 64 RPC 67, and applied also to orders, was decisive. The transcript showed that Fraser J had directed deletion of the reference to identities. Article 8 privacy considerations also supported withholding them.
3. Proof of breach. The court had to be satisfied of each alleged breach to the criminal standard. The Applicant’s argument that the civil standard applied because he sought fines rather than imprisonment misunderstood Mubarak v Mubarik (No 2) [2007] 1 WLR 271; the established rule was supported by Re Bramblevale Ltd [1970] Ch 128, Dean v Dean [1987] 1 FLR 517 and Mann v Mann [2014] EWCA Civ 1674.
4. The Respondents’ explanations concerning recollection, privilege, relevance and the documents supplied were accepted in the absence of evidence justifying rejection. Failure to provide electronic copies was at most a technical breach and did not merit a sanction. The committal application was dismissed.

The judgment records that Fraser J made the disclosure order on 20 September 2017. Jay J refused an application to set that order aside on 12 October 2017 and granted an extension for compliance. The present court dismissed the subsequent committal application.