Super Max Offshore Holdings & Anor v Malhotra

Contempt must be proved beyond reasonable doubt. A defendant may be liable for acts carried out through agents whom he controls, directs or encourages. An order restraining conduct may therefore prohibit indirect implementation through others, without implying a separate mandatory term where the order expressly addresses acts done through agents.

The court may retrospectively dispense with personal service of an order where the respondent had clear notice of its terms and no injustice was caused. Deliberately false statements verified by a statement of truth may constitute contempt where they are knowingly false and likely to interfere with the administration of justice. Intimidation, victimisation and attempts to prevent witnesses attending or giving evidence may constitute contempt even if unsuccessful and even if the underlying conduct is lawful in another jurisdiction.

The claimants applied to commit Rakesh Malhotra for contempt arising from four consolidated applications. The allegations concerned breaches of interlocutory and final Commercial Court orders, knowingly false statements in witness statements, communications with employees, interference with witnesses and attempts to obstruct witnesses from attending the underlying trial.

The applications arose from earlier proceedings concerning the management and ownership of the Super-Max group. Popplewell J had found the defendant in breach of his employment contract and made permanent injunctive orders on 13 December 2017, followed by final relief on 27 March 2018. The central issues were whether the alleged conduct breached the orders, whether service defects could be cured, whether false statements and witness interference amounted to contempt, and whether proceedings in Dubai created any bar.

1. Contempt proved in substantial part. The defendant was found in contempt in respect of Application 1(a)–(f) and (j)–(k), Application 2, Application 3 except grounds 11–12, and Application 4. Grounds 1–5, 6–9, 10 and 15–22 were proved beyond reasonable doubt.
2. The defendant remained responsible for instructions to agents after he knew of the relevant orders. The orders were sufficiently clear. “Removal” included the steps necessary to complete termination, including cancellation of employee share-option arrangements. Communications and appointments made by the defendant, or through his agents, also amounted to purporting to act as Group CEO where they fell within powers reserved to that office.
3. There was no need to imply a mandatory injunction. The order expressly provided that a person restrained from doing something must not do it through others acting on his behalf, instructions or encouragement. That principle extended beyond employees to persons whom the defendant could control.
4. Under CPR 81.8 and Practice Direction 81, the court could retrospectively dispense with personal service where the defendant had notice of the order’s terms and no injustice resulted. The same approach applied to technical defects in service of the relevant orders.
5. The defendant knowingly made false statements that he had instructed agents to stop the terminations and that he had appointed Sameer Khan before the order. CPR 32.14 was engaged. The court rejected the proposed analogy with section 13 of the Perjury Act 1911 and held that the evidence was overwhelming in any event.
6. Threatening and abusive communications to employees were intended to intimidate them into resigning and to punish or victimise witnesses. Contempt did not require proof that the intimidation succeeded, that the recipient was actually intimidated, or that others became aware of it.
7. The Dubai proceedings did not create res judicata, issue estoppel or abuse of process. The foreign courts had not decided that the complaints were false, malicious, required to be made immediately, or justified interference with the English trial. A foreign legal right or duty did not excuse conduct whose actuating motive was to obstruct English proceedings.

The judgment does not state any appellate history for the present decision. It records that permission to appeal an earlier procedural judgment was refused by the Court of Appeal.