Cole v Carpenter & Ors

Permission for a private litigant to bring contempt proceedings based on a knowingly false statement depends ultimately on the public interest. A strong prima facie case of knowing falsity is necessary but not sufficient. The court must also consider the statement’s significance, the maker’s state of mind, proportionality, resources, prosecutorial motive and the overriding objective.

Where the disputed statement concerns a material issue likely to be examined at the substantive trial, a pre-trial contempt application will normally be premature. Extracting that issue may disrupt and distort the ordinary trial process. Permission before trial should therefore be confined to the most exceptional circumstances.

The defendants applied under rule 81.3(5) of the Civil Procedure Rules 1998 for permission to bring contempt proceedings against the claimant. They alleged that she had fabricated an email exchange purporting to record a US$10 million offer for a Picasso and had pleaded that offer in a reply verified by a statement of truth.

The email’s authenticity was a material issue in the underlying contract proceedings and was likely to be examined at trial. The court had to decide whether, despite a strong prima facie case of knowing falsity, it was in the public interest to permit contempt proceedings before the substantive trial.

1. The application for permission was dismissed. The ultimate question under rule 81.3(5) of the Civil Procedure Rules 1998 was whether bringing contempt proceedings was in the public interest. A strong prima facie case that a verified statement was false and knowingly made was a prerequisite, but it did not determine the application. The court also had to consider significance, state of mind, proportionality, resources, prosecutorial motive and the overriding objective: KJM Superbikes Ltd v Hinton, Zurich Insurance plc v Romaine and TBD (Owen Holland) Ltd v Simons applied.

2. The defendants had established a strong prima facie case that the purported email exchange was false and that the claimant knew it was false. The historic email records did not contain the exchange, the claimant could not produce a native version, and her expert had found only a screenshot forwarded to an unidentified third party in 2019. There was consequently also a strong prima facie case that she had deliberately made a false statement in a document verified by a statement of truth.

3. The defendants’ settlement correspondence did not establish the unambiguous impropriety required to displace without-prejudice privilege. A proper distinction existed between addressing a reasonably contemplated contempt application within a settlement of the whole dispute and using a threat of committal to obtain an unjustified commercial advantage. The correspondence fell into the former category and was inadmissible.

4. Nevertheless, contempt proceedings before trial would be premature, disproportionate and contrary to the overriding objective. The alleged falsehood concerned a pleaded, material issue likely to be investigated at trial. Determining it separately under the criminal standard would extract one factual issue from the ordinary sequence, risk tactical disruption and consume disproportionate court resources. Permission in such circumstances should normally be withheld except in the most exceptional case.

5. After trial, the court would have the benefit of findings made against the totality of the evidence. It could then assess the statement’s materiality and seriousness and decide whether the defendants were suitable to discharge the dispassionate, quasi-prosecutorial role required of a private contempt applicant.

not stated in the judgment.