Discovery Land Company LLC & Ors v Jirehouse & Ors

In committal proceedings, fairness requires the alleged contemnor to be informed of the possible availability of legal aid and given a proper opportunity to obtain advice. If that has not occurred, the hearing should ordinarily be adjourned where the allegations may result in imprisonment. Under Civil Procedure Rules 1998 Part 81, a respondent cannot be compelled to give oral evidence or to submit to cross-examination on affidavit evidence. The respondent may remain silent. The claimant retains the burden of proving contempt to the criminal standard, although the court may draw an adverse inference from silence where that is appropriate and fair. Silence alone cannot establish guilt.

Discovery Land Company LLC sought the committal of Stephen Jones and three Jirehouse defendants for alleged breaches of undertakings recorded in an order made by Nugee J and disclosure obligations under a freezing injunction.

Jones had not been informed of the possible availability of criminal legal aid and wished to apply for it. The claimant also sought an order requiring him to submit to cross-examination on his affidavit evidence. The issues were whether the committal application should be adjourned and whether Jones could be compelled to give oral evidence or be cross-examined.

1. Adjournment. The application was adjourned. Practice Direction 81 paragraph 15.6 required the court to have regard to the need for a respondent to have reasonable time to respond, to be informed of possible criminal legal aid, and, if unrepresented, to have an opportunity to obtain legal advice. Proceeding without giving Jones that information would deny him a fair hearing in relation to allegations carrying a possible prison sentence. It would breach common-law fairness and the right to a fair hearing under the European Convention on Human Rights article 6.3(c). His status as an experienced solicitor did not remove the need for proper notice. The hearing was ordered to be expedited, and the judge indicated that he should hear the resumed application if possible.
2. Cross-examination. The court refused to compel Jones to give oral evidence or to submit to cross-examination on his affidavits. Under Civil Procedure Rules 1998 Part 81.28, the respondent may give oral evidence and may then be cross-examined, but cannot be compelled to do either or put to an election between relying on affidavit evidence and being cross-examined. The older authorities, including Crest Homes Plc v Marks [1987] AC 829 and Comet Products UK Limited v Hawkex Plastics [1971] 2 QB 67, were decided before Part 81 came into force.
3. Silence and adverse inference. The burden remained on the claimant to prove contempt to the criminal standard. If Jones chose not to give oral evidence, the court could draw an adverse inference where appropriate and fair, but silence alone could not prove guilt. The judge reached no final conclusion on any inference, leaving that issue for the resumed hearing after Jones had received legal advice.

The judgment records that the application followed an undertakings order made by Nugee J on 15 March 2019 and a freezing injunction made on 18 March 2019. No appeal is described.