Commerzbank AG v Damilare Ajao

Permission to commence committal proceedings requires a strong prima facie case on each alleged contempt, assessed without determining the merits. The court must also be satisfied that proceedings are in the public interest, proportionate and consistent with the overriding objective.

Employment Tribunal findings reached on the civil standard may be considered at the permission stage, although they would not determine guilt at a later committal hearing. A finding that evidence was false does not necessarily establish a strong prima facie case of knowingly making a false statement. Where allegations have already been litigated, are nuanced, or would require disproportionate re-litigation, permission should be refused. Serious allegations of fabricated evidence or knowingly false allegations may justify permission where the evidential issues are sufficiently focused.

The claimant bank applied under CPR 81 for permission to commence committal proceedings against a former employee. It alleged that he knowingly made false statements verified by statements of truth and interfered with the administration of justice during Employment Tribunal proceedings concerning discrimination, harassment and dismissal.

The Employment Tribunal had dismissed all claims and made adverse credibility findings, including findings that allegations of sexual assault and harassment were invented and that parts of a work diary had been manufactured. The defendant argued that the application lacked adequate particularity and that the Tribunal’s civil findings could not establish contempt. The central issues were whether the alleged contempts were sufficiently particularised, whether a strong prima facie case existed on each ground, and whether permitting proceedings would be in the public interest, proportionate and consistent with the overriding objective.

1. Particularity. The application adequately identified the nature of the alleged contempts and gave a brief summary of the facts relied on. Read against the background known to the defendant, it left him in no legitimate doubt about the substance of the allegations. CPR 81 did not require every evidential detail to appear in the application notice.
2. Applicable approach. Permission had to be considered separately for each ground. The court had to proceed with considerable caution and decide whether there was a strong prima facie case, without deciding whether contempt had in fact been committed. It also had to consider public interest, proportionality and the overriding objective.
3. Use of Employment Tribunal findings. Although the Tribunal’s decisions would not be admissible as determinations of contempt at a later hearing, the court could have regard to them when assessing whether the threshold for permission was met. A finding that evidence was false was insufficient by itself where the material did not provide a sufficient basis to infer that the defendant knowingly gave false evidence.
4. Permission granted in part. Strong prima facie cases were established in relation to the alleged sexual harassment and attempted sexual assault allegations concerning Q, the defendant’s related explanations for his conduct, the alleged harassment allegations concerning Ms Ogunfowora, and the alleged manufacture of work-diary entries. These matters engaged a substantial public interest, and the evidential issues were sufficiently focused for a committal hearing to be proportionate.
5. Permission refused in other respects. The alleged dishonesty concerning covert recordings and emails was not permitted to proceed because the likely evidential and forensic exercise would be disproportionate. Permission was also refused concerning the annual-leave evidence, withdrawn allegations, the schedule of loss, alleged oral complaints and meetings, and the alleged preference for German or European team members. The issues were either insufficiently connected to knowing dishonesty, too nuanced, previously litigated, or unsuitable for proportionate committal proceedings.
6. The application was therefore permitted only in relation to points 2–6, 10–11, 24–26, 29–30 and 31. The parties were directed to seek to agree directions.

First-instance application under CPR 81. The court granted permission to commence committal proceedings only in relation to specified allegations and refused permission in the remaining respects.