Martina Yvonne Shand v Peter Edward Kemkers & Ors

Permission to pursue private contempt proceedings should be granted only where the public interest requires them and there is a strong prima facie case capable of proof to the criminal standard. The court must examine each allegation separately, including whether the alleged statement was knowingly false, and must consider delay, proportionality, the applicant’s fitness to pursue the proceedings and any collateral purpose.

Lawyers advancing a client’s case are not generally required to investigate and determine the truth of every factual assertion. They must not mislead the court or state facts known to be false, but may advance a contested or unlikely case on proper instructions. Contempt proceedings cannot be used to relitigate discontinued, settled or struck-out claims, or to circumvent finality in litigation. The applications were therefore refused or struck out, the later claim was struck out as totally without merit, and an extended civil restraint order was made.

The claimant had pursued a long-running dispute concerning defects and alleged consequential loss relating to her flat. Earlier proceedings in 2012 were struck out. Claims issued in 2019 against several parties, including Mishcon de Reya LLP and St James, were partly discontinued and otherwise settled by acceptance of a Part 36 offer. A related 2020 claim was struck out.

In 2025 the claimant sought permission to commence contempt proceedings against six individuals, including solicitors, barristers and representatives of St James and Mishcon. She alleged knowingly false statements, fraud on the court and interference with the administration of justice. She also sought to lift the stay in the 2019 proceedings, pursued a further claim against Mishcon and DWF Law LLP, and faced an application for an extended civil restraint order.

The central issues were whether permission was required, whether the contempt allegations had a strong prima facie basis, whether they were abusive or brought for a collateral purpose, whether the 2025 claim disclosed reasonable grounds, and whether a civil restraint order was justified.

1. Permission and governing principles. Contempt proceedings are public law proceedings pursued in the public interest. Permission should not be granted unless the public interest requires the proceedings, the applicant is a proper person to bring them, and there is a strong prima facie case that each allegation will be proved to the criminal standard. The court must also consider proportionality, delay, the likely use of court time and costs, and the overriding objective. Recklessness is insufficient: the alleged contemnor must know that the statement was untrue.
2. Existing proceedings and false statements. Proceedings remain “existing” once issued, even if judgment has been given, they have been struck out or they have been settled, because they may retain continuing procedural vitality. Nevertheless, an allegation of knowingly making a false statement verified by a statement of truth requires permission under Civil Procedure Rules 1998, rule 81.3(5)(b). A party who instructs a legal representative to sign a statement of truth knowing it contains false factual assertions may be treated as making the statement.
3. Lawyers’ roles. Lawyers have duties to the court, including duties not to mislead and not to advance facts known to be false. They do not have a general duty to investigate and decide whether their client’s factual case is true. They may advance a contested or unlikely factual or legal case on instructions, subject to professional obligations. Privilege also required particular caution before drawing adverse inferences against counsel whose instructions had not been waived.
4. Application to the contempt allegations. The allegations against all six defendants lacked a strong prima facie evidential basis. Several relied on non-admissions, evaluative submissions, contested legal arguments or allegations that lawyers should have investigated the merits of their clients’ cases. The allegations against Mr Kemkers were additionally defeated by excessive delay, collateral purpose and abuse of process. The allegations against Mr Levy, Mr Brown, Mr Bennett, Mr Smith KC and Mr Chelmick sought to revisit matters raised or capable of being raised in the 2019 proceedings.
5. Abuse and finality. The principle in Henderson v Henderson applied after discontinuance and settlement. It was abusive to discontinue or settle allegations against a company and later pursue essentially the same allegations against an individual through contempt proceedings. The court refused permission where required and otherwise struck out all contempt allegations as disclosing no reasonable grounds and/or constituting an abuse of process.
6. Other applications. The application to lift the stay in the 2019 proceedings was dismissed. The 2025 claim against Mishcon and DWF was struck out under CPR 3.4(2)(a) and (b), notwithstanding that it had not been served, and declared totally without merit. An extended civil restraint order was made for three years because the claimant had persistently issued claims and applications that were totally without merit.