Alvina Collardeau v Michael Fuchs & Anor

Permission to bring private committal proceedings for false statements should be granted only with great caution. The applicant must show a strong prima facie case that the statement was false and that the maker knew it was false, applying the criminal standard at the substantive hearing. The court must assess the public interest, the applicant’s suitability to act in a quasi-prosecutorial capacity, proportionality and the overriding objective. Circumstantial evidence may suffice, but permission should be refused where more than one reasonable inference is available and at least one is inconsistent with contempt. A private grievance, tactical motive, weak evidence and disproportionate use of court resources weigh strongly against permission.

The applicant sought permission under the Family Procedure Rules 2010 to bring contempt proceedings against her former husband and a former employee. She alleged that both respondents had knowingly made false statements about a telephone conversation with her solicitor, in order to support an application preventing that solicitor from acting for her.

The applications concerned whether there was a strong prima facie case that the conversation had not occurred and that the respondents did not honestly believe that it had occurred. The court also considered the public interest, the applicant’s suitability to bring proceedings, proportionality and the effect on court resources.

1. Permission refused. The applicant’s case was evidentially weak. The absence of a recollection or attendance note from the solicitor, the telephone records and the solicitor’s secretary’s email did not establish that the alleged conversation had not occurred.
2. The court was required to consider whether the applicant could prove beyond reasonable doubt that the statements were false and that the respondents knew them to be false. The applicant’s evidence depended substantially on inference. The evidence permitted alternative explanations, including the use of another handset, an internet-based call, an email sent without knowledge of the alleged conversation, or innocent deletion of the email.
3. The respondents’ evidence required plausible consideration. This included a contemporaneous WhatsApp message, three witness statements and telephone records consistent with a call. Minor discrepancies did not prevent the evidence from weakening the applicant’s case.
4. Contempt proceedings are public law proceedings. A private applicant acts in a quasi-prosecutorial capacity and must act dispassionately, fairly and with balance. The applicant’s stated intention to obtain litigation advantages and the terms of her correspondence showed that the application was pursued to advance a private grievance and extract concessions.
5. Proportionality also favoured refusal. The underlying debarring application had no continuing value, substantial costs had already been incurred, a contested committal hearing would require several days of High Court time, and permission would not represent an appropriate use of finite judicial resources.

The court was satisfied that bringing committal proceedings was not in the public interest. Costs submissions were directed to be made on paper.