Oliver v Shaikh

In quasi-criminal committal proceedings, the court may proceed in the respondent’s absence only in exceptional circumstances and after carefully assessing fairness. Relevant considerations include deliberate waiver of attendance, the prospects and likely length of an adjournment, representation, disadvantage in not giving evidence, prejudice to the applicant, and the public interest in enforcing court orders promptly.

Where liability is straightforward, the respondent has received the allegations and has advanced only a denial, proceeding in the respondent’s absence may be justified. The court should ordinarily separate liability from penalty and allow the respondent an opportunity to attend and mitigate before sentence.

The claimant had obtained summary judgment and an injunction restraining the defendant from harassing him and requiring the removal of specified online material. Permission to appeal was refused. The claimant then applied to commit the defendant for contempt, alleging 27 breaches involving continued publication, failure to remove material, and further postings.

The defendant had notice of the proceedings and the hearing, but did not attend the directions hearing or the substantive hearing. He sought an adjournment, relying principally on being abroad, lack of representation, and alleged procedural unfairness. The central issues were whether the court should proceed in his absence and whether the alleged breaches were proved to the criminal standard.

1. Proceeding in absence. The court refused the adjournment and proceeded with the committal application in the defendant’s absence. The defendant had been served with the relevant documents, had adequate notice and time to prepare, knew that legal aid was available, and had been offered telephone participation. His repeated failure to attend was deliberate and voluntary. Any adjournment was unlikely to secure attendance within a reasonable time and would prejudice the claimant, since the alleged breaches were continuing. The approach was informed by Lamb v Lamb [1984] FLR 278, JSC BTA Bank v Stepanov [2010] EWHC 794 (Ch), JSC BTA Bank v Solodchenko [2011] EWHC 1613 (Ch), Barnet LBC v Hurst [2003] 1 WLR 722, M v M (Contempt: Committal) [1997] 1 FLR 762, Calderdale and Huddersfield NHS Foundation Trust v Atwal [2018] EWHC 961 (QB), R v Jones [2003] 1 AC 1 and Sanchez v Oboz [2015] EWHC 235 (Fam).
2. Safeguard on penalty. Following JSC BTA Bank v Solodchenko [2011] EWHC 1613 (Ch) and Pirtek (UK) Limited v Jackson [2018] EWHC 1004 (QB), the court determined liability separately and adjourned penalty. This preserved an opportunity for the defendant to attend, purge the contempt, or make representations in mitigation.
3. Liability. The claimant proved to the criminal standard that the defendant failed to remove specified material and posted or controlled numerous further publications. The court was sure that he controlled the principal website, relying on the striking similarity between the website text and a letter written by him, distinctive writing characteristics, and subsequent amendments to the website. Mere similarity was insufficient for several other postings where alternative authorship remained possible.
4. The court found breaches (1)–(7), (9), (12)–(17), and (20)–(25) proved. Breaches (10), (11), (18), (19), (26) and (27) were dismissed. Breach (8) had been withdrawn as duplicative. The defendant’s conduct was deliberate, calculated and flagrant. A further hearing was directed to determine penalty, with liberty to apply within 14 days.

The judgment records that summary judgment and the injunction were granted by Julian Knowles J in [2019] EWHC 3389 (QB). Permission to appeal was refused by Davis LJ on 12 June 2020. The present judgment determined the subsequent committal application.