Oliver Smith v Emil Kirkegaard (also known as William Engman)

In contempt proceedings, personal service is the default, but alternative service may be authorised where there is good reason and the method is likely to bring the proceedings to the defendant’s actual notice. A defendant who invoked the court’s substantive jurisdiction is subject to its contempt jurisdiction in matters incidental to that claim, without a further submission. Non-payment of a costs order is a judgment debt: it may remain a contempt, but the Debtors Act 1869 prevents committal or imprisonment unless an exception applies. Relief from sanctions requires the three-stage Denton assessment. Procedural defaults may justify relief where a viable contempt allegation remains and service can potentially be achieved.

Mr Smith appealed against an order of Mr Justice Nicklin dated 13 November 2023 refusing relief from sanctions and leaving dismissed a contempt application. The application alleged that Mr Kirkegaard had given a false address in earlier libel proceedings and had failed to pay costs orders. The High Court considered the application hopeless because personal service and notice could not be secured, jurisdiction had not been submitted to, and non-payment of costs could not be enforced by contempt.

The appeal concerned alternative service, the extraterritorial contempt jurisdiction, enforcement of unpaid costs orders, and the application of the relief from sanctions test.

Appeal allowed. The court granted relief from the sanction imposed for failure to comply with the High Court’s order and remitted the application for alternative service and further directions.

1. Service. Personal service of a contempt application and supporting evidence is the default under CPR 81.5.1, but CPR 6.15.1 permits alternative service where there is good reason. Alternative service may be ordered in contempt proceedings, as illustrated by Field v Vecchio [2022] EWHC 1118 (Ch). Active evasion, known email addresses and use of social media meant that service by those methods might bring the proceedings to the respondent’s actual notice. The application was therefore not hopeless.
2. Jurisdiction. CPR 81.4 has extraterritorial effect. Applying Dar Al Arkan v Al Refai [2014] EWCA Civ 715 and Vik v Deutsche Bank AG [2018] EWCA Civ 2011, a foreign national who invokes the court’s substantive jurisdiction is subject to its contempt jurisdiction in matters incidental to the claim. Mr Kirkegaard’s commencement of the libel proceedings was sufficient; no further submission was required.
3. Non-payment of costs. The Australian authorities, including PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission [2020] FCA 685 and Mahaffy v Mahaffy [2013] NSWSC 245, did not assist because England and Wales has a different procedural and statutory regime. Under sections 4 and 5 of the Debtors Act 1869, the unpaid costs orders fell outside the exceptions permitting imprisonment, and section 5 no longer applied to this case. The default might remain a contempt, but it could not be enforced by committal.
4. False statement and relief from sanctions. A false statement in a document verified by a statement of truth may found contempt proceedings under CPR 32.14. Jet 2 Holidays Ltd v Hughes [2019] EWCA Civ 1858 confirmed that such proceedings may arise even where substantive proceedings were never issued. The court applied the three stages in Denton v TH White [2014] EWCA Civ 906: seriousness and significance, the reason for default, and all the circumstances. The breach was serious, but its significance was reduced by the further affidavit and prompt attempt to obtain alternative service. Mr Smith’s failure arose from misunderstanding the swearing requirement, while his service efforts were reasonable. The continuing public interest in compliance with court orders and preventing misleading statements justified relief.

Compliance with committal rules remained important because such proceedings may affect liberty. The matter was remitted to a High Court judge to determine alternative service and further directions.

• Court of Appeal (Civil Division): In [2024] EWCA Civ 698, the appeal was allowed, relief from sanctions was granted, and the alternative-service application and further directions were remitted.
• High Court of Justice, King’s Bench Division: On 13 November 2023, Mr Justice Nicklin refused relief from sanctions after the contempt application had been dismissed for failure to comply with earlier orders.