Anish Nambiar v Solitair Limited

An order finding contempt, without imposing imprisonment, is not a committal order for which an appeal lies without permission. A committal order is an order imposing immediate or suspended imprisonment.

A statutory right to appeal a later committal order does not permit a party to relitigate identical grounds on which permission to appeal the underlying contempt finding has already been finally refused. A duplicate appeal is an abuse where it would undermine finality, expose the opposing party to repeated proceedings, duplicate judicial resources and risk inconsistent judgments.

A final permission decision may be reopened only in truly exceptional circumstances where the integrity of the earlier proceedings was critically undermined and grave injustice would otherwise result.

Following a trial, HHJ Stephen Davies found that the appellant had breached fiduciary duties owed as a director to Solitair Limited and had committed contempt by breaching an interim injunction. The contempt finding was recorded in an order dated 27 January 2021. Permission to appeal that order was refused on every ground by Males LJ on 8 March 2021.

On 17 March 2021 the judge imposed 28 days’ imprisonment, suspended for six months. The appellant then appealed the committal order as of right, relying exclusively on the same grounds previously rejected by Males LJ. He did not challenge the sentence.

The preliminary issue was whether this second attempt to challenge the contempt finding was an abuse of process and, if so, whether the earlier permission decision should nevertheless be reopened under rule 52.30 of the Civil Procedure Rules 1998.

1. Appeal struck out. The contempt order merely recorded a finding of breach and imposed no sentence. It was therefore not a committal order within rule 52.3(1)(a)(i) of the Civil Procedure Rules 1998. A committal order is an order which commits a person to prison, whether immediately or under a suspended sentence. The trial judge’s provisional statement that the custody threshold appeared to have been passed did not amount to such an order. The appellant therefore properly required permission to appeal the contempt order: per Simler LJ at [29]–[35].

2. The refusal of permission by Males LJ was a final order. The appellant’s subsequent appeal relied on identical grounds and sought the same substantive result. If successful, it would produce inconsistent decisions of courts of co-ordinate jurisdiction. It would also undermine finality, duplicate judicial resources and expose the respondent to the same challenge twice. The second appeal was accordingly an abuse of process: at [37]–[49].

3. The statutory right of appeal under section 13 of the Administration of Justice Act 1960 did not prevent the court from striking out an abusive appeal. The court retained jurisdiction over the appeal against the committal order but was entitled, and obliged, to decline to exercise that jurisdiction where the only challenge impermissibly relitigated a final decision. The appellant had chosen to seek permission before sentence and could instead have sought an extension of time or a stay of the permission application: at [47]–[51].

4. No relevant circumstances had changed following the refusal of permission. The further evidence relied upon at sentencing had been available at trial, was inconsistent with the contempt finding and could not reopen it. It remained available for mitigation, but the appellant did not challenge his sentence. Nor had there been an intervening change in the law: at [52]–[55].

5. The appellant had enjoyed a full opportunity to contest contempt. He was represented, gave evidence, challenged the opposing evidence, made submissions and sought permission to appeal. Consideration of the permission application on paper did not make that opportunity inadequate: at [56]–[57].

6. The restrictive jurisdiction under rule 52.30 was not engaged. Neither the trial nor the permission proceedings had been critically undermined, and refusing to reopen the decision would cause no grave injustice capable of outweighing the public interest in finality. The application to reopen was refused and the proceedings were at an end: at [58]–[61]. Popplewell and Carr LJJ agreed.

1. Court of Appeal (Civil Division): By [2022] EWCA Civ 1135, unanimously struck out the appeal as an abuse of process and refused to reopen the earlier refusal of permission.

2. Court of Appeal, permission stage: Males LJ refused permission on 8 March 2021 to appeal the contempt order dated 27 January 2021. That refusal was final.

3. High Court: HHJ Stephen Davies found contempt in [2021] EWHC 49 (Comm). The finding was recorded on 27 January 2021. On 17 March 2021 he imposed 28 days’ imprisonment, suspended for six months.