Oliver v Shaikh

Penalty for contempt is a matter for the court. Available sanctions include no order, an unlimited fine, confiscation and imprisonment for up to two years. Imprisonment, including a suspended sentence, is a last resort and cannot be imposed merely because a contemnor cannot pay a fine. The court assesses culpability and harm in all the circumstances, considering deliberateness, pressure, culpability and mitigation. The primary purpose is securing future compliance, although historic breaches must also be punished. The maximum sentence is not reserved for the worst contempt imaginable. Serious, deliberate and persistent defiance of a protective order may justify immediate imprisonment.

This was the penalty hearing following the court’s earlier finding that the defendant was in contempt for 20 breaches of an order dated 10 December 2019: [2020] EWHC 2253 (QB). The order required the removal of websites and other material. The defendant did not attend, had not sought reconsideration or set aside, and had disengaged from the proceedings. Six websites remained available, and 26 further entries had been posted on the JBB Website after the liability judgment. The central issues were whether to proceed in the defendant’s absence and what penalty was appropriate, having regard to culpability, harm, mitigation and the need to secure future compliance.

1. Proceeding in absence. The defendant had been given notice of the penalty hearing and an opportunity to seek reconsideration, variation or setting aside. He made no application, gave no explanation for his absence and requested no adjournment. The court therefore proceeded in his absence.
2. Applicable principles. The decision on sanction is for the court. The party seeking punishment should address the circumstances, consequences and relevant authorities, but should not urge a particular penalty: Attorney General v Hislop [1999] 1 WLR 514. The purposes of contempt sanctions are to punish the historic breach and secure future compliance, with compliance the primary objective if the purposes conflict. Sanctions range from no order and an unlimited fine to imprisonment for up to two years. Imprisonment is a last resort, and inability to pay a fine cannot justify it.
3. The court must assess culpability and harm in all the circumstances. Relevant considerations include harm to the protected person, pressure from another, whether the breach was deliberate or unintentional, and the contemnor’s degree of culpability. Mitigation may include admission of breach, appreciation of its seriousness, cooperation, remorse and apology. These principles were derived from Crystal Mews Limited v Metterick [2006] EWHC 3087.
4. Breach of a court order is inherently serious because it undermines the administration of justice. The maximum two-year sentence is not confined to the worst contempt imaginable; a comparatively broad range of the most serious contempts may justify a sentence at or near the maximum. A sentence may also contain an element intended to encourage belated compliance, which may later be reduced if the contempt is purged under Civil Procedure Rules 1998 CPR 81.10. The court relied on Financial Conduct Authority v McKendrick [2019] 4 WLR 65.
5. Application and order. The breaches were deliberate, persistent and blatant. They continued after warnings, commencement of proceedings and the finding of contempt. The defendant showed no remorse or insight, while the breaches caused serious harm to the rule of law, the authority of the court and the claimant, who was protected from harassment. Only immediate imprisonment was sufficient. A warrant for arrest was ordered, and, subject to any application under CPR 81.10, the defendant was to be committed to prison for 16 months.

High Court (Queen’s Bench Division): The court’s earlier liability judgment found the defendant in contempt for 20 breaches: [2020] EWHC 2253 (QB). The present judgment determined the penalty. No appeal was stated.