His Majesty's Solicitor General v Paul Millinder

A court order remains valid and enforceable unless and until it is set aside. A person cannot defend contempt proceedings by arguing that the order should never have been made, or by relying on a genuine belief that it was void. The proper remedy is an appeal, and the order must generally be obeyed while any challenge is pending unless a stay is granted.

For proven contempt, the court assesses culpability and harm, considers whether a fine is sufficient, and imposes the shortest custodial term commensurate with the seriousness of the conduct where custody is necessary. For a first offence or series of offences, deterrence is paramount, but committal remains a sentence of last resort.

The Solicitor General applied for the respondent’s committal for contempt of court. The alleged contempts consisted of fifteen emails sent to judges and court staff, and an application to reopen a criminal appeal, in breach of an all-proceedings order made under section 42 of the Senior Courts Act 1981.

The order had been made after the respondent was declared a vexatious litigant. Permission to appeal against it had subsequently been refused by the Court of Appeal. The respondent denied wrongdoing in substance, contending that the order was void and that he was entitled to disregard it. The issues included proof of the breaches, whether the proceedings could continue in his absence, and the appropriate sanction.

1. Contempt proved. The court was sure beyond reasonable doubt that the respondent had sent each of the fifteen emails and had made the application to reopen his criminal appeal. They were deliberate and contumacious breaches of paragraphs 6 and 10 of the section 42 order.
2. Validity of the order. The section 42 order was valid and enforceable. It was not open to the respondent to relitigate whether it should have been made. The Court of Appeal had refused permission to appeal, and the order remained binding. Even a successful appeal would not retrospectively authorise disobedience while the order remained in force, absent a stay.
3. The respondent’s asserted genuine belief that the order was void afforded no defence: Khawaja v Popat & Another applied. The observations in MacFoy v United Africa Ltd concerning void acts were obiter, concerned acts by individuals rather than court orders, and did not assist the respondent.
4. Remote attendance and recusal. Although committal proceedings ordinarily proceed in person, the court permitted remote participation in the circumstances. A judge who made the underlying order was not thereby disqualified from hearing committal proceedings based on its breach. Unsubstantiated allegations could not engineer recusal.
5. Sanction. Applying the approach summarised in Attorney General v Crosland, the court assessed the respondent’s high culpability, the harm to the administration of justice, the repeated and threatening nature of the communications, and the absence of remorse or mitigation. A fine would be inadequate. Following the comparative approach in Rowland v Stanford and distinguishing the less serious circumstances in Foskett v Ezeugo, the court imposed fifteen months’ immediate imprisonment for the breaches of paragraph 10 and paragraph 6, to run concurrently. Six months represented coercive imprisonment and nine months punishment. The sentence was not suspended. The respondent was granted permission to apply under CPR 81.10 to purge his contempt.

• Divisional Court: On 6 July 2021, the court made an all-proceedings order against the respondent under section 42 of the Senior Courts Act 1981.
• Court of Appeal: On 11 November 2021, Lord Justice William Davis refused permission to appeal against the section 42 order, holding that the proposed grounds were unarguable.
• Divisional Court: The present court found the breaches proved and imposed a total sentence of fifteen months’ immediate custody.