Alexander Aslani v Paulina Sobierajska

In civil contempt proceedings for breach of a court order, the claimant must prove to the criminal standard that the order was served and that the defendant deliberately performed an act which was factually non-compliant. No separate mens rea or proof of the defendant’s knowledge is required to establish contempt, although knowledge may affect the court’s decision on sanction. Where a party refers to legal advice to support a case about knowledge, understanding or contumacy, waiver of privilege may be relevant at sentencing, but disclosure need not be ordered at the threshold stage. An appeal against a case-management decision faces a high threshold and succeeds only for an error of principle, relevant omission, consideration of irrelevant matters, or a decision outside the generous ambit of discretion.

The appellant brought contempt proceedings alleging that the respondent had breached an injunction made in earlier libel proceedings. The respondent referred in a witness statement to legal advice concerning her understanding of the order and its consequences. Murray J held that the references concerned the content of the advice, but that any waiver of legal advice privilege and disclosure should be considered only if service and breach were established and the proceedings reached the sentencing stage. He dismissed the specific disclosure application without prejudice to renewal. The appellant appealed, arguing that the respondent’s knowledge and understanding were threshold issues and that disclosure should occur before liability was determined.

Disposition. Baker LJ gave the reasons for dismissing the appeal. Nicola Davies LJ and Lewis LJ agreed.

1. Contempt threshold. The Court applied the principles summarised in Cuciurean v Secretary of State for Transport [2021] EWCA Civ 357, drawing on FW Farnsworth Ltd v Lacy [2013] EWHC 3487 (Ch) and the Cuadrilla authorities. To establish civil contempt for breach of an order, the claimant must prove to the criminal standard that the order was served and that the defendant performed at least one deliberate act which was factually non-compliant.
2. Knowledge and mens rea. There is no further mens rea requirement. The defendant’s state of knowledge may be important in deciding what action to take, but knowledge of the order is not a threshold element of the contempt. The threshold issues were therefore service and the subsequent prohibited act.
3. Privilege and case management. Baker LJ agreed with Murray J’s analysis that the reference to legal advice could be relevant to knowledge, contumacy or penalty, but did not justify waiver or disclosure before service and breach had been established. The fact that evidence might be heard at one hearing did not require disclosure at that stage.
4. Appellate restraint. The Court of Appeal could interfere with the case-management decision only for an error of principle, consideration of irrelevant matters, failure to consider relevant matters, or a decision so plainly wrong as to fall outside the generous ambit of discretion. That high threshold was not met. The possible inability to predict the eventual sanction was outweighed by the need to confine disclosure of privileged material, particularly where the respondent’s liberty could be at stake.

The Court also urged the parties to reconsider the continuation of long-running proceedings in light of the absence of any alleged further breach and the use of limited court resources.

• Court of Appeal (Civil Division): Appeal dismissed. Baker LJ’s reasons were agreed by Nicola Davies LJ and Lewis LJ.
• High Court of Justice, King’s Bench Division: Murray J dismissed the specific disclosure application, declining at that stage to declare waiver of legal advice privilege or order disclosure, while permitting renewal if the proceedings reached sentencing.