The All England Lawn Tennis Club (Championships) Ltd & Ors v McKay (Rev 1)

In civil contempt proceedings carrying a risk of imprisonment, the respondent must have a fair opportunity to obtain legal representation. Civil contempt is treated as criminal for the purposes of Article 6(3) of the ECHR, and non-means-tested legal aid is in principle available. Where the respondent fails to engage with the court, an adjournment may be appropriate to resolve uncertainty about the authority competent to determine legal-aid entitlement. A medical assertion that a party cannot attend must give sufficient detail about the practitioner’s familiarity with the condition, the condition’s features, its effect on participation, and the prognosis. A bare medical letter will not ordinarily justify postponing the hearing. The court may adjourn the committal application, notify the Legal Aid Agency, require proper medical evidence, and warn that non-compliance may lead to a bench warrant.

The claimants applied to commit the defendant to prison for alleged breach of an interim injunction prohibiting dealings in non-transferable Wimbledon tickets and requiring disclosure by witness statement. The defendant had not provided a compliant statement, indicated that he wanted legal representation, and failed to attend the committal hearing. A short medical letter referred to mental-health difficulties but did not explain whether attendance was impossible, how participation was affected, or the prognosis.

The court considered whether it had power to make a legal-aid determination, whether it should do so, and how the committal application should proceed fairly in the defendant’s absence.

1. Fair trial and representation. The court held that the right to a fair trial at common law and under the ECHR is directly engaged by an application to commit a person to prison. The defendant had clearly expressed a wish to be represented and had experienced difficulty obtaining representation. The court therefore had to address the legal-aid issue before proceeding.
2. Availability and source of legal aid. Civil contempt proceedings are treated as criminal for Article 6(3) purposes. A person facing committal for breach of a civil order is a specified individual for the purposes of Legal Aid, Sentencing and Punishment of Offenders Act 2012, s 16. The judgment identified uncertainty over whether the High Court or the Legal Aid Agency had power to make the relevant determination. Earlier decisions had treated Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013, reg 7 as not excluding a High Court determination, but the issue required clarification with the Legal Aid Agency on notice.
3. Medical evidence. The letter supplied for the defendant was insufficient. Medical evidence relied on to justify non-attendance should identify the practitioner’s familiarity with the patient’s condition, recent consultations, the condition and its particular features, the features said to prevent participation, and a reasoned prognosis. The court must also consider whether measures short of adjournment can accommodate the difficulty.
4. Directions and disposition. The committal application was adjourned to 8 November 2019. The Legal Aid Agency was invited to attend and make submissions on the court’s power to determine legal-aid entitlement. The defendant was directed either to attend or to file adequate medical evidence by 6 November. The court warned that failure to comply was likely to result in a bench warrant.