K v J & Anor

Permission for contempt proceedings is exceptional and should be granted only where there is a strong prima facie case, a public interest in proceeding, and proportionality. A contempt application must identify the alleged contempt with precision and comply with the procedural safeguards governing committal proceedings. The court may strike out an application which discloses no reasonable ground, has no real prospect of success, or is an abuse of process. In family proceedings, committal is a remedy of last resort and the court should guard against litigation being used for harassment or coercive control. Evidence that a witness was asked to cover particular matters in a statement does not, without more, establish fabrication or an intention to mislead the court. An application based on privileged communications, serious procedural defects, and evidence incapable of proving contempt may therefore be struck out.

K applied for permission to bring committal proceedings against J, his former wife, and L, concerning a 2021 incident and L’s subsequent witness statement. K relied principally on WhatsApp messages in which J identified matters for L to include in her statement. He alleged that the messages showed collusion to fabricate evidence.

The Family Court had previously dismissed K’s application for want of jurisdiction and indicated that any application should be made in the High Court. J applied to strike out the High Court application, relying on privilege, procedural non-compliance, lack of merit, and abuse of process. The central issues were whether the application could properly proceed and whether the evidence disclosed a properly arguable contempt.

1. The application was struck out. It had no prospect of success and was an abuse of the court’s process.
2. The court applied the permission principles in Zurich Insurance Plc v Romaine [2019] EWCA Civ 851. Permission is discretionary and requires great caution, a strong prima facie case, consideration of the public interest and proportionality, and attention to the significance and intended use of any alleged false statements.
3. A contempt application must particularise the precise allegation so that the alleged contemnor knows the charge and the evidence said to prove it. The court also relied on paragraph 2 of FPR PD 37A, and treated committal as a remedy of last resort, particularly in family proceedings, consistent with Ansah v Ansah [1977] 1 WLR 760.
4. The WhatsApp messages were subject to litigation privilege and could not be relied on, applying Al Sadeq v Dechert [2024] EWCA Civ 28. In any event, the remaining evidence did not show that J asked L to fabricate evidence. Similarity between the messages and the statement was equally consistent with asking L to record what had occurred.
5. The evidence did not come close to establishing an intention to mislead the court, which was required for criminal contempt under Attorney General v Crosland [2021] 4 WLR 103. The procedural defects, although potentially remediable, provided an additional reason for striking out the application.
6. The wider history supported the conclusion that K was using litigation to harass and intimidate J. The court relied on the need to detect contempt proceedings pursued for illegitimate purposes, identified in Vseukrainskyi Aktsionernyi Bank PJSC v Maksimov [2014] EWHC 4370 (Comm).
7. The court refused to impose a targeted restriction requiring permission for further contempt applications. Although such an order may be justified where necessary and proportionate, the recent history did not yet justify it.

The judgment records that District Judge Shepherd in the Leeds Family Court dismissed an earlier application for want of jurisdiction and indicated that any application should be made in the High Court. No appeal is stated.