Commerzbank AG v Damilare Ajao

A contempt application based on false evidence requires proof, to the criminal standard, that the statement or evidence was false and that the maker knew it was false or was reckless as to its truth. A false statement of truth must also have materially interfered with the course or due administration of justice. Dishonest evidence given on oath or affirmation is itself capable of constituting contempt.

The court may draw inferences from proved primary facts, but an essential element must be inferred only where no reasonable person would fail to draw the inference. Witness credibility must be assessed by reference to the whole evidence, including independent documentary material, and not demeanour alone.

Commerzbank AG brought CPR Part 8 proceedings for contempt against its former employee, Damilare Ajao. The application arose from employment tribunal proceedings in which Mr Ajao had brought discrimination, harassment and related claims against the bank and several employees. Those claims were dismissed, and a costs contribution remained unpaid.

The contempt allegations concerned alleged fabricated sexual harassment allegations against Mrs Q, allegations concerning Lola Ogunfowora, false explanations for delay in reporting the allegations, and allegedly fabricated entries in a work diary. The central issues were whether the statements and evidence were false, whether Mr Ajao knew that they were false, and whether they interfered with the due administration of justice.

1. Applicable principles. The court adopted the general principles concerning contempt stated in Navigator Equities Ltd v Deripaska. Contempt proceedings are civil proceedings, although the criminal standard of proof applies and the defendant has a right to silence. Making a false statement of truth without an honest belief in its truth, where the necessary interference with justice and knowledge requirements are established, may constitute contempt. Giving evidence on oath or affirmation which the witness knows to be false, or as to which the witness is reckless, likewise constitutes contempt.
2. The court accepted the principles that the High Court has jurisdiction to punish contempt of an Employment Tribunal, that CPR 32.14 does not itself create the relevant liability, and that the essential elements of each allegation must be proved by the claimant. Inferences could be drawn from primary facts, but an essential element could not be inferred unless the inference was one which no reasonable person would fail to draw.
3. In assessing credibility, the court applied the approach explained in Re Mumtaz Properties. Demeanour was not treated as determinative. The court considered the surrounding documentary evidence and the extent to which it supported or contradicted the oral evidence.
4. The court found Mrs Q and Mr Booth to be honest and credible witnesses. It rejected Mr Ajao’s evidence. It was sure that the allegations against Mrs Q were fictitious and deliberately made to deceive the Employment Tribunal into awarding damages. It was also sure that the explanations given for not reporting those allegations earlier were invented to support the claim.
5. The court was sure that the allegation that Ms Ogunfowora had referred to Mr Ajao as “this boy” was untrue. It was not sure that the allegation of unwanted physical contact was proved, because contemporaneous evidence provided a sufficient factual basis for the original complaint, although there may have been exaggeration or embellishment.
6. The court was sure that the relevant diary entries were added later to bolster the Employment Tribunal claim and that there had been no meeting between Mr Ajao and Mr Booth on 19 November 2019.
7. Grounds 2–6, 10, 11, 24–26, 29 and 30 were proved to the criminal standard. Mr Ajao was found to be in serious contempt of court through false statements of truth and false evidence on oath or affirmation designed to, and which did, interfere with the due administration of justice. The appropriate sanction was reserved for further argument.