Super Max Offshore Holdings & Anor v Malhotra

On an application to strike out contempt allegations, the court must consider whether the order and alleged breaches are clear, supported by prima facie evidence showing a real prospect of success, brought for a legitimate purpose, and proportionate to enforcing the order and protecting the administration of justice.

The order and particulars must be read in their context, according to their natural and ordinary meaning and the mischief addressed. Cross-reference to contractual or other documents does not itself invalidate an injunction. The demanding evidential test applied after a contempt hearing is not the threshold for striking out at the outset. A negative injunction may require reasonable steps to procure compliance or to withdraw an instruction given to a person under the defendant’s control.

The defendant, formerly executive chairman of the first claimant, faced four contempt applications alleging breaches of injunctions made during litigation concerning the management of the Super Max group. The allegations included unauthorised management acts, disparaging communications, false statements, witness interference, and conduct through agents.

The defendant applied to strike out parts of the applications. He also sought a stay of allegations concerning criminal complaints made in Dubai, pending appeals against decisions of the Dubai courts. The court considered the proper threshold for striking out contempt allegations, the construction and scope of the injunctions, and whether a stay was appropriate.

1. Applicable principles. The court held that an order and particulars of breach must be clear and comprehensible and must make the thrust of the claimant’s case plain. The particulars must be supported by prima facie evidence showing a real prospect of success. The application must serve a legitimate purpose and be proportionate to enforcing the order and preventing interference with justice.
2. The order and particulars must be read in context and given their natural and ordinary meaning in light of the knowledge of the relevant participants. The court must consider the mischief which the order sought to prevent. Cross-reference to contractual or other documents is permissible and may assist clarity, provided the order makes clear what the recipient must do.
3. The test applied at the end of a contempt hearing is materially different. At trial, the claimant may fail where more than one reasonable inference is available and one is inconsistent with contempt, or where an innocent explanation is a real possibility. That is not the appropriate threshold at the strike-out stage.
4. A negative injunction may require the defendant to take reasonable steps to ensure compliance where an instruction has been given to a person under the defendant’s control. The obligation may include procuring that person to withdraw or recall the instruction. It is not confined to employees.
5. Applying those principles, most challenged allegations in the first and third applications remained arguable and sufficiently particularised. One allegation concerning communications prepared for an advisory board meeting was struck out as technical and disproportionate in light of the order’s proviso.
6. The allegations concerning the Dubai complaints were sufficiently arguable but were stayed pending the outcome of the Dubai appeals, or until 1 February 2020, whichever was earlier. The court considered that proceeding while the Dubai decisions remained subject to appeal risked an unsatisfactory determination of issues relevant to the contempt allegations.

The relevant amendments were allowed. The first application remained in part, the second application was unchallenged, specified parts of the third and fourth applications remained or were stayed, and the specified allegation in the first application was struck out.