Super-Max Offshore Holdings v Malhotra & Anor

An injunction carrying penal consequences must be construed restrictively, clearly and strictly. Its words receive their natural and ordinary meaning in their context, including the historical context and the order’s purpose. A communication breaches an injunction against disparaging defined managers where, read reasonably, it conveys that the relevant company’s management is ineffective and undeserving of respect, even if it may also criticise other persons. Evidence of adverse consequences is not required to establish the breach. Where the injunction permits communication with a protected trade contact only with consent or court permission, a party who considers disclosure necessary must seek permission in advance.

The claimant applied for a finding that Mr Rakesh Malhotra was in contempt of court for breaching an injunction made by Popplewell J on 27 March 2018. The injunction prohibited communications to trade contacts or regulators that were disparaging of defined relevant managers, subject to specified consents or an order of the court.

Mr Malhotra sent a letter to Punjab National Bank, a banker of Supermax Personal Care Private Limited, alleging, among other matters, complete anarchy in the company’s management. He did not attend the contempt hearing because of medical advice against travel and did not give evidence. The central issue was whether the letter was expressed in terms disparaging of relevant management.

1. Construction of the injunction. The court applied the principles summarised in Pan Petroleum AJE Ltd v Yinka Folawiyo Petroleum Co Ltd [2017] EWCA Civ 1525. The sole question was what the order meant. Because breach carried penal consequences, the injunction had to be clear, unequivocal, restrictively construed and strictly applied. Its words were to receive their natural and ordinary meaning in context, including the historical context and the order’s purpose.
2. Scope of protected management. The reference to relevant management expressly included any person appointed as Super-Max Chief Executive Officer, India. It was not disputed that this meant the chief executive officer of Supermax Personal Care Private Limited.
3. Application to the letter. References to Actis LLP’s inept management, destruction of value and alleged mismanagement could reasonably be read as attacks on Actis LLP rather than on the defined relevant management. The statement that there was complete anarchy in the management of Supermax Personal Care Private Limited was different. It criticised the company’s management as ineffective and undeserving of respect and necessarily included its chief executive officer. The surrounding reference to the circumstances did not alter that meaning.
4. The court was sure that Mr Malhotra acted intentionally and with knowledge of the injunction. The absence of evidence of adverse consequences did not answer whether the injunction had been breached.
5. Mr Malhotra was guilty of contempt of court, but only in respect of the statement concerning complete anarchy in the company’s management. The consequences of the contempt were adjourned to a later hearing at which mitigation could be advanced. The application was properly brought and was neither disproportionate nor improperly motivated.