Esso Petroleum Company Limited v Scott Breen & Ors

In civil contempt proceedings, the court has a broad discretion to select a proportionate sanction. The purposes are punishment, securing future compliance with court orders and rehabilitation.

The assessment begins with culpability and the harm caused, intended or likely to be caused. Relevant factors include deliberateness, appreciation of seriousness, cooperation, admission, apology, previous character and personal mitigation.

Imprisonment is reserved for breaches passing the custody threshold. Any term must be as short as possible while reflecting the gravity of the contempt and the purposes of the jurisdiction. Conscientious protest may mitigate sentence, but it does not justify deliberate, serious and persistent flouting of an injunction.

Esso Petroleum Company Limited sought the committal of Scott Breen for breaches of an injunction relating to construction of a replacement fuel pipeline. The injunction required him to leave the land and prohibited interference with the project.

Breen admitted the breaches and did not challenge Esso’s evidence. The breaches included remaining on the land, constructing and extending an unsafe wooden structure, obstructing construction, publicising non-compliance, failing to attend an earlier hearing and resisting arrest.

The court determined the seriousness of the breaches, the appropriate sanction, the effect of conscientious-objection mitigation and whether imprisonment should be suspended.

1. Liability and seriousness. Breen had deliberately and continuously breached the injunction for 16 to 17 days. His conduct was highly culpable and caused, or was likely to cause, substantial prejudice to Esso’s project. The breaches were aggravated by construction of the unsafe structure, publicity encouraging disobedience, refusal to comply with the arrest warrant and failure to engage with the court process.
2. Applicable principles. The court applied the procedure in Civil Procedure Rules 1998 Part 81. It held that the contempt jurisdiction permits imprisonment, a fine, sequestration or other lawful punishment, and that the court’s discretion must serve punishment, future compliance and rehabilitation. The first analytical step is assessment of culpability and harm, followed by consideration of all relevant mitigating and aggravating circumstances.
3. Custody threshold. Imprisonment is the most serious sanction and requires the custody threshold to be passed. The threshold was plainly crossed by the persistence, public nature and seriousness of the breaches, together with the high culpability and lack of cooperation. The term imposed had to be as short as possible but commensurate with the gravity of the contempt.
4. Protest and Convention rights. The court took account of the guidance concerning civil disobedience and conscientious protest. Protesters may receive mitigation where their conduct is non-violent, cooperative and proportionate, but responsible citizens remain required to obey court orders. The court also considered the defendant’s Articles 10 and 11 rights under the European Convention on Human Rights and found immediate custody proportionate and necessary.
5. Sentence. The court assessed the appropriate sentence before mitigation at 185 days, reduced it to 112 days because of the admission, apology and conscientious-objection context, and imposed an immediate sentence of 112 days’ imprisonment together with a £1,500 fine. No order for costs was made because no costs schedule had been provided.