Jet 2 Holidays Ltd v Hughes & Anor

The court’s inherent jurisdiction to punish contempt extends to a knowingly false witness statement served before proceedings begin in purported compliance with a pre-action protocol. Such a statement is capable of interfering with the due administration of justice because pre-action protocols form an integral part of the litigation framework.

Although rule 32.14 of the Civil Procedure Rules 1998 applies only after proceedings have commenced, it does not limit the common law jurisdiction. An application concerning pre-proceedings contempt must ordinarily be made to the Administrative Court, but a procedural defect may be waived where it causes no injustice.

The respondents presented claims for compensation for illness allegedly suffered during a package holiday. Their solicitors served witness statements verified by statements of truth in purported compliance with a pre-action protocol. Social-media material appeared inconsistent with the claims, which were not pursued by substantive proceedings.

The appellant obtained permission to bring committal proceedings. After the respondents filed further witness statements maintaining and explaining their allegations, the appellant sought to add further grounds of contempt. The High Court dismissed the amendment application and struck out the committal proceedings, holding that it lacked jurisdiction over the original pre-proceedings statements: [2018] EWHC 3716 (QB).

The central issues were whether a knowingly false witness statement served under a pre-action protocol could constitute contempt before proceedings had begun, and whether the additional grounds concerning the later statements should be permitted.

1. Appeal allowed. Rule 32.14 of the Civil Procedure Rules 1998 did not apply to the original witness statements because they had been made before proceedings commenced. That rule did not, however, displace or exhaust the court’s inherent common law jurisdiction to punish contempt.

2. The common law question was whether the conduct interfered with the due administration of justice in a particular case or with justice as a continuing process. Conduct could satisfy that test even though proceedings were neither pending nor imminent. The court followed Attorney-General v News Group Newspapers plc [1989] 1 QB 110 and approved the broad principle stated in Attorney-General v Newspaper Publishing Plc [1988] Ch 333.

3. A dishonest witness statement served in purported compliance with a pre-action protocol was capable of interfering with the due administration of justice. Pre-action protocols were an integral and important part of the litigation framework. They promoted settlement, facilitated informed offers and laid the ground for efficient proceedings. A verified statement presented as the evidence which a prospective claimant would give in proceedings carried additional weight and solemnity. If knowingly false, it could improperly procure an admission or payment and impose financial and reputational burdens on the prospective defendant.

4. The fact that the parties had used the wrong protocol, or that the applicable protocols did not require a verified witness statement, did not alter that conclusion. Nor did the respondents’ decision not to commence their compensation claims remove the possible interference with justice. The court confined its decision to witness statements served in purported compliance with a pre-action protocol and did not decide the position for other kinds of pre-litigation document.

5. The application should strictly have been made to the Administrative Court under rule 81.13(2), because the alleged contempt preceded the commencement of proceedings. The High Court had nevertheless waived that procedural defect, in effect, because no injustice was caused.

6. The refusal to allow the additional grounds rested principally on the erroneous conclusion that the original proceedings were invalid. The Court of Appeal therefore exercised the discretion afresh and permitted the amendment. The further witness statements fell within rule 32.14, contained additional allegedly false explanations, disclosed an apparently strong case of contempt and raised a clear public interest in prosecution. Determining all allegations together was convenient, efficient and caused no unfair prejudice. The committal proceedings could continue as amended.

1. Court of Appeal (Civil Division): Allowed the appeal, reversed the jurisdictional ruling and refusal of permission to amend, and permitted the committal proceedings to continue with the additional grounds: [2019] EWCA Civ 1858.

2. High Court, Queen’s Bench Division: HHJ Owen QC struck out the committal proceedings and refused permission to add grounds concerning the further witness statements: [2018] EWHC 3716 (QB).