Commerzbank AG v Damilare Ajao

In criminal contempt proceedings, a judgment from earlier proceedings is not automatically admissible merely because it concerns the same parties or relevant events. The court must first establish its relevance to the issues in the contempt proceedings and must apply fairness as the governing principle.

Findings or opinions based on different evidence and a different standard of proof may be inadmissible opinion evidence. The contempt court must make its own findings on the admissible evidence before it. Fairness includes ensuring that justice is seen to be done, so the court may exclude a highly prejudicial earlier judgment even where the judge believes it could be put out of mind.

The claimant brought criminal contempt proceedings against the defendant, arising from allegations that he had knowingly made false statements and fabricated evidence in earlier Employment Tribunal proceedings. The tribunal had dismissed the defendant’s discrimination and harassment claims and later ordered him to pay costs.

At an earlier permission hearing, the parties proceeded on the basis that the Employment Tribunal judgments could be considered when establishing a prima facie case, but would not be admissible at the substantive contempt hearing. The claimant nevertheless sought to rely on the tribunal’s findings. The preliminary issue was whether those judgments were admissible in the criminal contempt proceedings.

1. Application refused. The Employment Tribunal judgments were not admitted in evidence. The contempt proceedings were criminal in nature and separate from the earlier Employment Tribunal claims.
2. The governing principle was fairness. The rule in Hollington v F Hewthorn & Co Ltd [1943] 1 KB 587 concerned the relevance and fairness of relying on another court’s opinion. It did not create an automatic rule that every earlier judgment between the same parties was admissible.
3. Super Max Offshore Holdings v Rakesh Malhotra [2018] EWHC 2979 (Comm) was confined to documents, evidence and primary facts already in the public domain. It did not establish that opinions expressed in an earlier judgment were admissible evidence on the very issues requiring determination in later criminal contempt proceedings.
4. The reasoning in JSC BTA Bank v Mukhtar Ablyazov [2016] EWHC 3081 (Comm) concerning the court’s ability to consider factual statements in an earlier judgment did not make the Employment Tribunal’s evaluative opinions admissible. The present court had to assess the evidence itself.
5. Bailey v Bailey (Committal) (Rev1) [2022] EWFC 5 was distinguishable because the committal applications there formed part of the same proceedings and concerned enforcement of the order arising from the earlier judgment. Criminal contempt proceedings in the present case were separate.
6. The Employment Tribunal findings were opinions based on evidence not before the court, including evidence assessed under a different evidential regime and standard of proof. Their admission risked prejudicing the defendant and undermining confidence that the court had reached its own decision. The contempt allegations therefore had to be decided solely on admissible evidence presented in these proceedings.

Not stated in the judgment.