Solicitors Regulation Authority Ltd v Soophia Khan & Ors

Capacity to conduct civil contempt proceedings is governed by the Mental Capacity Act 2005 through CPR Part 21. Criminal fitness-to-plead rules, including the Pritchard criteria, do not apply directly, although they may assist by analogy.

Where medical evidence raises a real doubt about capacity, an adjournment for further evidence may be appropriate. It is not required where the judge concludes that further evidence has no real prospect of changing the outcome. Expert evidence may be assessed against the whole evidential record.

A defendant cannot suffer an adverse inference merely from silence. A warning by counsel may suffice in the circumstances, particularly where the judge did not rely on silence and no serious procedural unfairness resulted.

The Solicitors Regulation Authority sought compliance with orders requiring Soophia Khan and companies associated with her to deliver up documents. Ms Khan was found liable for civil contempt and received a second committal sentence of 12 months by Leech J: liability was determined at [2023] EWHC 302 (Ch) and sanction at [2023] EWHC 525 (Ch).

Ms Khan appealed, arguing principally that she lacked capacity to defend the committal proceedings, that the criminal fitness-to-plead test applied, and that she had not received adequate warnings concerning silence. The companies sought an extension of time and permission to appeal. Ms Khan also sought to reopen the refusal of an extension of time for appealing the first committal, previously determined at [2022] EWHC 45 (Ch). The central issues concerned capacity, adjournment for medical evidence, procedural fairness, and the Court of Appeal’s reconsideration powers.

1. Disposition. Ms Khan’s main appeal was dismissed. The companies were granted an extension of time and permission to appeal on their three existing grounds, but their appeal was dismissed. Permission to amend their grounds to add a fourth ground was refused. Ms Khan’s application concerning the first committal appeal was also dismissed.
2. Capacity. Civil contempt proceedings in the civil courts are civil litigation governed by CPR Part 81 and Part 21. Capacity to conduct them is therefore determined under the Mental Capacity Act 2005. The criminal fitness-to-plead test and the Pritchard criteria do not directly apply. They may nevertheless assist as illustrations of the decisions which a defendant may need to make, such as understanding the allegations, instructing representatives, following the proceedings and giving evidence.
3. Medical evidence and adjournment. If evidence is insufficient to establish incapacity on the balance of probabilities but leaves a real doubt, an adjournment for further evidence may be appropriate. The decision remains discretionary. Leech J was entitled to conclude that Dr Gupta’s second report was inadequately reasoned, inconsistent with the first report, and contradicted by Ms Khan’s affidavits and sustained participation in the litigation. He was also entitled to conclude that further evidence or cross-examination had no real prospect of changing the result.
4. Silence and fairness. Silence alone cannot justify an adverse inference. Where documentary matters call for an explanation, however, the court may take account of the absence of one. The better practice is for the judge personally to explain both the right to silence and the possible adverse consequences. Here counsel had given a clear warning in the presence of Ms Khan and her legal representatives, and Leech J expressly stated that he had not needed to rely on silence. Any defect was therefore not a serious procedural irregularity under CPR r 52.21(3).
5. Other procedural issues. The companies required permission to appeal because the committal exception in CPR r 52.3(1)(a)(i) applies to a person who may be imprisoned, not to a company. Applying Denton, the substantial delay and lack of a satisfactory explanation justified refusing the late fourth ground. CPR r 52.24(6) permits one reconsideration of a single-judge decision made without a hearing; it does not permit reconsideration of the reconsideration. The paper procedure under that rule did not engage CPR r 23.8(c) or create a further right under CPR r 3.3(5).

• Court of Appeal (Civil Division). In [2024] EWCA Civ 531, the main appeal and the companies’ appeal were dismissed, the proposed amendment was refused, and the application concerning the first committal appeal was dismissed.
• High Court, Chancery Division. Leech J determined liability for the second committal at [2023] EWHC 302 (Ch) and sanction at [2023] EWHC 525 (Ch). The first committal was determined at [2022] EWHC 45 (Ch).
• Earlier Court of Appeal proceedings. Ms Khan’s appeal against the sentence imposed on the first committal was dismissed at [2022] EWCA Civ 287.