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

A person subject to a disclosure order in proceedings relating to property cannot simply decline to comply because the disclosure may incriminate him in fraud. Section 13 of the Fraud Act 2006 removes that privilege while preventing the compelled statement or admission from being used against him in a prosecution for fraud or a related offence. Where an order provides a mechanism for claiming privilege, the respondent must use it in the prescribed witness statement.

Committal proceedings require scrupulous procedural fairness. However, defects justify setting aside a committal order only where they have caused unfairness or injustice. A deliberate and continuing refusal to obey a disclosure order, despite notice and opportunities to comply, may properly result in a suspended custodial sentence.

Mr McKay, an unofficial dealer in Wimbledon tickets, was ordered to disclose transactions involving non-transferable tickets and to deliver up any such tickets. The order allowed him to claim privilege against self-incrimination in a witness statement.

He did not provide the required statement. Judge Freedman found him in contempt and imposed a 26-week prison sentence, suspended to permit compliance. Nicol J later lifted the suspension after finding that Mr McKay had still not purged the contempt: [2019] EWHC 3874 (QB).

Mr McKay appealed both orders. He relied on self-incrimination, service, evidential, and procedural-fairness objections, and also sought a declaration of incompatibility concerning section 13 of the Fraud Act 2006.

1. Appeals dismissed. Henderson LJ gave the principal judgment, with which Hickinbottom and Simler LJJ agreed. The deficiencies in the first committal hearing were regrettable, particularly the failure to explain fully Mr McKay’s right to silence and the judge’s questioning of an unrepresented alleged contemnor. On the particular facts, however, they caused no unfairness or injustice requiring the committal order to be set aside.
2. Mr McKay had plainly failed to provide the witness statement required by the disclosure order. The medical material did not show a real risk that proceeding with the hearing was unfair. It lacked the particularity, prognosis and other features needed to establish that he could not participate fairly; the issue was in any event principally legal, not factual.
3. A mandatory order can impose an immediate and continuing obligation for the purposes of committal. Although the continuation order had not been personally served, the court exercised its discretion to dispense with service because Mr McKay had actual knowledge of what he had to do and suffered no injustice. Other defects in the formulation of the committal application were likewise technical and were waived.
4. Section 13 of the Fraud Act 2006 applied because the proceedings concerned tickets that remained Wimbledon’s property. It removed any privilege against self-incrimination in complying with the disclosure order, while section 13(2) protected compelled statements or admissions from use in a fraud prosecution. Article 6 of the ECHR did not excuse total non-compliance. In any event, the order required any privilege claim to be set out fully in a witness statement, which Mr McKay had refused to do.
5. The hearsay challenge failed because the agents’ evidence concerned the underlying civil claim and was irrelevant to the alleged contempt, which was the failure to obey the disclosure order. Mr McKay could not mount a collateral challenge to orders that remained in force.
6. On the second appeal, the only material question was whether the condition of suspension had been met. It had not. The court proposed a short final opportunity to purge the contempt, with any properly made privilege claim to be determined promptly by a High Court judge before sentence activation.

• Court of Appeal (Civil Division): Appeals dismissed in [2020] EWCA Civ 695 .
• High Court, Queen’s Bench Division (Nicol J): Lifted the suspension of the committal sentence after finding that the condition of suspension had not been met: [2019] EWHC 3874 (QB).
• High Court, Queen’s Bench Division (Judge Freedman): Found Mr McKay in contempt for failing to comply with the disclosure requirements and imposed a 26-week sentence, suspended for a final opportunity to purge the contempt.
• High Court, Queen’s Bench Division (Nicklin J): Made, and then continued, an order requiring disclosure concerning transactions in non-transferable tickets.