Riccardo Frati v Karen Bowen-Carter

An undertaking incorporated into a court order must be construed strictly, but its meaning is determined objectively in the context in which the order was made. Complete precision is unnecessary where the alleged conduct plainly falls within the order’s purpose. A prohibition on contacting a claimant’s “other patients” may extend to both current and former patients where the surrounding proceedings and draft order show that broader purpose. Contempt requires proof beyond reasonable doubt that the defendant knew of the order, intentionally did the prohibited act, and knew the facts making it a breach. It is unnecessary to prove a further intention to breach the order. Public online communication may constitute contact with an identified patient where it is directed to that patient, even if others can also read it.

The claimant, a cosmetic surgeon, obtained an interim consent order requiring the defendant, his former patient, not to contact him, his staff or his other patients. The undertaking was given pending trial of claims in libel, malicious falsehood and harassment.

The claimant applied under Civil Procedure Rules 1998 Part 81 to commit the defendant for contempt. She had made online communications to four current or former patients. She argued that “other patients” was ambiguous, did not clearly include former patients, and that some communications did not amount to contact. The central issues were the proper construction and enforceability of the undertaking, and whether the elements of contempt were proved.

1. Application allowed. The claimant proved beyond reasonable doubt that the defendant breached the second undertaking on four occasions by contacting Patients 1–4. The defendant was therefore in contempt of court.
2. An undertaking given to the court is a solemn commitment. Breach may constitute contempt. The applicable test required proof that the defendant had notice of the order, intentionally did an act prohibited by it, and knew the facts which made the act a breach. It was unnecessary to prove that she intended to breach the order itself.
3. The order had to be construed restrictively, clearly and unequivocally, but objectively and in context. Its purpose and terms were to be read together. The court could consider the harassment claim, the draft injunction and the circumstances in which the consent order was made. Complete certainty was not required where any alleged vagueness was immaterial to the conduct proved.
4. In context, “other patients” meant people other than the defendant who had undergone, or were undergoing, surgery or treatment or care. It therefore included present and former patients. The defendant had agreed the undertaking with legal advice and could not rely on Article 10 to avoid its enforcement.
5. The online messages to Patients 2 and 4 constituted contact despite being posted publicly or within wider message threads. The defendant had deliberately directed the communications to those patients, and the fact that others could read them did not prevent them from being contact. The defendant knew the relevant facts and intentionally posted the messages.
6. The court treated the breaches as reckless rather than deliberate flouting. A fine of £1,200 was imposed for the Patient 1 contempt, taking account of all four contempts, with no separate penalty for the others. The defendant was ordered to pay £20,000 on account of the claimant’s costs of the contempt application.