Barclays Bank PLC v Scott Dylan & Ors

In committal proceedings, heightened procedural fairness requires the court to decide only the contempt alleged in the application notice. A late change from an alleged transfer to knowledge, permission or non-correction of later filings requires a formal application, a properly formulated amended allegation and a fair opportunity, normally including an adjournment. Findings cannot be retrospectively based on an unpleaded allegation. On factual appeals, the appellate court must respect the trial judge’s findings, especially where credibility and circumstantial evidence are involved, and must not retry the case by selecting isolated evidence. The appeal was therefore allowed in part: findings on three counts stood, but the fourth count was discharged for procedural unfairness.

Barclays Bank brought committal applications against directors and associated individuals alleging breaches of freezing orders. Rajah J found Mr Jack Mason in contempt on four counts in [2024] EWHC 1994 (Ch), imposing concurrent sentences of 22 months on counts 1–3 and 12 months on count 4.

Mr Mason appealed as of right. He challenged the factual findings on all counts. In relation to count 4, the original allegation concerned an actual transfer of his shares in March 2022. During the trial, the judge instead found knowledge of, and permission for, later Companies House filings and treated that conduct as a dealing with the shares. The central issues were whether the factual findings were unsafe, whether the allegation could be reformulated after the evidence, and whether the altered conduct amounted to a breach of the freezing order.

1. Disposition. The Court of Appeal, per Lewison LJ with King and Coulson LJJ agreeing, dismissed the factual challenge on counts 1–3. Ground 1 succeeded in relation to count 4. Ground 2 was dismissed except to the extent already encompassed by ground 1. The relevant liability provisions, paragraphs 2 IV and 3 II of the first-instance order, were discharged. The concurrent 22-month sentence on counts 1–3 remained undisturbed.
2. Circumstantial evidence and factual appeals. The applicant in contempt proceedings must prove the case beyond reasonable doubt. No special direction is required merely because the evidence is circumstantial. The court must assess the evidence as a whole, avoid speculation and decide whether it is sure of guilt. The appellate court must respect factual findings and credibility assessments, particularly after lengthy oral evidence in a complex documentary case. It must not duplicate the trial judge’s role by island-hopping through selected evidence. Failure to mention an item does not show that it was overlooked.
3. Procedural fairness on count 4. A committal court must confine itself to the allegation in the application notice. Authorities including Swain-Mason v Mills & Reeve LLP [2011] EWCA Civ 14, Inplayer Ltd v Thorogood [2014] EWCA Civ 1511 and Zu Sayn-Wittgenstein-Sayn v HM Juan Carlos de Borbón y Borbón [2022] EWCA Civ 1595 require a formal application, a formulated amendment and a fair opportunity to answer a materially changed allegation. Here, the original count alleged an actual March transfer. The judge found only knowledge of and permission for later filings, then reformulated the allegation after the evidence and without an adjournment. That was unfair, even though the judge considered Mr Mason’s evidence dishonest.
4. Obiter. Coulson LJ, with relevant observations endorsed by King LJ, highlighted the consequences of s.13 of the Administration of Justice Act 1960 and r.52.3(1)(a)(i) of the CPR, which permit an appeal against committal as of right. He suggested that a permission filter, potentially including a condition of personal attendance, merited consideration.

1. Court of Appeal (Civil Division): In [2025] EWCA Civ 265, the appeal succeeded on the procedural challenge to count 4. The factual challenge to counts 1–3 failed, and the relevant liability provisions concerning count 4 were discharged.
2. High Court, Business and Property Courts, Business List (ChD): Rajah J found Mr Mason in contempt on four counts in [2024] EWHC 1994 (Ch). The sanction judgment is reported at [2024] EWHC 2776 (Ch).