MOHAMED AHMED v YASAR KHAN

Contempt proceedings require strict compliance with procedural safeguards because of their quasi-criminal character. Personal service of the original order and a prominent penal notice are fundamental safeguards. An order permitting email or fax service does not waive personal service for later committal proceedings unless it expressly says so.

A contempt application must also be legally recognisable against the person charged. Where an order is directed to a limited liability partnership, obligations imposed on its officers or agents do not ordinarily extend to a junior solicitor who is neither a partner, agent, nor a person managing or controlling the partnership.

The claimant father brought contempt proceedings against the defendant, a junior solicitor employed by the mother’s solicitors. The alleged contempt concerned non-compliance with a disclosure order made against the solicitors’ limited liability partnership and an alleged breach of a prohibition on informing the mother of the order.

The father sought permission to add a further contempt count based on allegedly false statements in an application to discharge the disclosure order. The defendant applied to strike out the contempt application for procedural defects, abuse of process and the absence of reasonable grounds. The court determined both interlocutory applications.

1. Permission to add Count 3. The application was procedurally defective because permission had not been included in the contempt application, despite the alleged false statement having been made six days earlier. Applying the test in Tinkler & Anor v Elliott, the father failed to show a strong prima facie case of knowing falsity likely to interfere with the course of justice, a public interest in committal proceedings, proportionality, or compliance with the overriding objective. The application was dismissed and certified totally without merit.
2. Procedural safeguards. Contempt safeguards must be strictly construed. The disclosure order was served neither personally nor with a penal notice. Permission to serve by email or fax did not amount to a waiver of personal service for the purposes of FPR rule 37.4(2)(d), because the order did not expressly state that personal service was waived for subsequent contempt proceedings. The absence of a penal notice was a fatal and non-remediable defect. The absence of personal service provided an additional independent ground for striking out the application.
3. Other procedural defects. The failure to support the application by affidavit or affirmation was a minor defect capable of waiver. By contrast, the father had to act as a quasi-prosecutor, present the facts fairly and dispassionately, and pursue the application for a legitimate purpose. His stated objective of preventing the defendant from representing the mother showed an ulterior purpose and amounted to abuse of process.
4. Scope of the order. Properly construed, the disclosure order was directed to Russell & Russell Solicitors LLP. Its obligations applied through the LLP’s partners, agents, and persons managing or controlling its business. The defendant, a recently employed junior solicitor who was neither a partner nor an agent and had no management or control of the LLP, was not personally subject to the order. The contempt application was therefore not legally recognisable against him and was struck out also on that ground.
5. The admitted failure by the firm to comply with the disclosure order remained disturbing, but the court made no order as to costs because the breach was clearly admitted.