Fulham Football Club Ltd v Kline

Contempt by breach of an injunction is established where the contemnor had notice of an unambiguous order, deliberately performed the prohibited act, and knew the facts making that act a breach. The prosecution need not prove an intention to disobey or flout the order. The court assesses the meaning of communications objectively, by asking what a reasonable person would understand them to refer to. An order made by a court of unlimited jurisdiction must be obeyed unless and until it is set aside, even if its validity or regularity is challenged. No public-interest exception can be implied where the injunction contains none.

Fulham sought the committal of its former employee, Mr Kline, for breaches of confidentiality and non-disparagement obligations embodied in injunctions granted by Moulder J. The first committal application concerned 42 tweets and posts which Mr Kline had admitted publishing. It had been stayed under a consent order after his apology and undertaking not to commit further breaches.

Fulham issued a second committal application concerning 16 later posts and applied to restore the first application. Mr Kline sought to set aside the restoration order and disputed the effect and validity of the underlying agreement. The issues were whether the restoration should stand, whether the admitted and later publications breached the injunction, and whether the contempt test was satisfied.

1. Restoration. Mr Kline could not disavow the affidavit in which he admitted the 42 earlier breaches. The restoration order was valid, and there were no proper grounds for setting it aside.
2. Mental element. Fulham had to prove contempt to the criminal standard. Consistently with Palmer & Reid v Tsai [2017] EWHC 1860 (Ch), contempt by breach of an order is generally a strict-liability offence. It was enough that Mr Kline intended to perform the conduct constituting the breach. A direct intention to disobey, or an intention to flout the order, was unnecessary, although state of mind remained relevant to sanction.
3. Construction and application. Whether the tweets and posts referred to protected persons or matters was assessed objectively. A breach occurred where a reasonable person would understand the publication to refer to a protected person or to matters covered by the injunction, including Fulham’s business or reputation. Seven of the 16 later publications met that test; nine did not, because reasonable doubt remained.
4. Unchallenged order. Mr Kline could not rely on an alleged invalidity of the underlying agreement. The agreement had been given effect by an order which had not been set aside. Applying the principle in Isaacs v Robertson [1985] AC 97 (PC), the order had to be obeyed unless and until set aside. The same reasoning defeated the proposed public-interest justification, since the injunction contained no such exception.
5. Mr Kline was therefore in contempt in respect of the seven later publications and the admitted earlier breaches. The issue of sanctions was adjourned for a further hearing.