Neil & Anor v Henderson (Rev 1)

Contempt involving false or forged evidence does not require proof that the court was actually misled or acted upon it. It is sufficient that deployment was likely materially to interfere with the due administration of justice. Direct deployment of forged evidence is distinct from indirect publication contempt, where additional policy considerations may require a significant and adverse effect.

The requisite mental element may be specific intent to interfere with justice, inferred from the circumstances where the probability of the consequence was little short of overwhelming. Contempt allegations must be proved beyond reasonable doubt, although individual items of evidence need not each satisfy that standard. A witness-statement assertion that documents are merely copies does not establish contempt unless the maker is proved to have understood it as asserting that the underlying documents were genuine.

The claimants applied to commit the defendant for contempt arising from forged documents and a purported witness statement deployed in discontinued injunction proceedings concerning control of Manage Security Services Ltd. The alleged evidence comprised three documents purportedly signed by Eva Borkova, a witness statement attributed to her, and the defendant’s own witness statement exhibiting the documents.

The court had to determine whether the documents were forged, whether the defendant knew that, whether their service and deployment constituted contempt, whether she possessed the necessary intention, and whether her statement contained a knowingly false statement verified by a statement of truth.

1. Legal principles. Contempt requires an act involving actual or attempted interference with the due administration of justice and the necessary mental element. For direct deployment of forged evidence, actual reliance or impact is unnecessary. It is enough that deployment was likely to mislead the court or another party in a material, rather than trivial, respect. Service of forged evidence in proceedings may itself suffice, although the point was academic where the evidence was also filed and deployed at a hearing.
2. The court distinguished indirect publication contempt, addressed in Attorney-General v Newspaper Publishing Plc [1997] 1 WLR 926, and declined to apply the approach in Balogh v St Albans Crown Court [1975] QB 73 as a general rule for all forms of contempt.
3. For the first head of claim, the applicable mental test was specific intention to impede or prejudice the administration of justice, which could be inferred from circumstances where the probability of the consequence was little short of overwhelming. For a false statement verified by a statement of truth, knowledge of falsity and likely interference with justice was required.
4. The allegations had to be proved beyond reasonable doubt. The court could draw an inference from the totality of the evidence even though individual evidential facts were not themselves proved beyond reasonable doubt. Particulars of contempt had to be strictly observed.
5. The court was sure that the September documents and the disputed Borkova statement were forged, and that the defendant knew this. Grounds 3, 4, 5 and 6 were therefore established: service and subsequent deployment of the forged documents and statement constituted contempt. Grounds 1 and 2 were not established because the necessary act and intention were not proved to the criminal standard.
6. Ground 7 failed. The description of the exhibit as “copy documents” was literally true, and the court was not sure that the defendant understood it as asserting that the underlying documents were genuine. The claim was therefore partly successful.

This was a first-instance decision of the High Court (Chancery Division). The judgment states that permission to bring the committal proceedings was granted by Robert Miles QC sitting as a deputy judge on 30 June 2017.