Richard Wood & Ors v Sophie Fleming

In committal proceedings, the court may proceed in a defendant’s absence where the defendant has effective notice, a reasonable opportunity to obtain representation or seek an adjournment, and deliberately chooses not to participate. Contempt must be proved beyond reasonable doubt. The order and alleged breaches must be clear, supported by prima facie evidence, brought for a legitimate and proportionate purpose, and construed in context and by reference to the mischief addressed. For civil contempt, the court must assess seriousness, first decide whether a fine is sufficient, and impose the shortest custodial term required if it is not. Suspension may be justified by the impact on children and may serve rehabilitation, compliance and punishment.

The claimants were executors and interim administrators of the estate of Brendan Fleming. They sought committal orders against Sophie Fleming for breaching anti-harassment injunctions restraining social-media publications concerning them and their colleagues.

The defendant had notice of the hearing but did not attend, seek an adjournment or instruct representatives. One application had initially been issued on the wrong form, but the defect was corrected and the court considered whether service and procedural fairness permitted the hearing to proceed.

The central issues were whether the alleged breaches were proved, whether the court should proceed in the defendant’s absence, and what penalty was appropriate.

1. Proceeding in the defendant’s absence. Service by email was authorised because the defendant retained an address for service in Northern Ireland, had not provided an address in Turkiye, and email was an effective and preferred means of communication. The court retrospectively validated service. Although less than a week’s notice would often be insufficient in committal proceedings, this defendant had known of the hearing for about three weeks, understood her procedural rights from earlier proceedings, and had chosen not to attend or seek an adjournment. It was fair to proceed in her absence as a deliberate waiver of participation under art 6 ECHR.
2. Proof of contempt. Applying the guidance in Supermax v Malhotra [2019] EWHC 2711 (Comm), the court required clear and comprehensible orders and particulars, prima facie supporting evidence, a legitimate and proportionate application, and proof beyond reasonable doubt. The injunction was construed in its context and by reference to the mischief it sought to prevent. The court was sure that the defendant had failed to remove specified posts and had published further posts alleging criminal or professional misconduct, contrary to the injunction.
3. Penalty. The court applied the approach in Attorney General v Crosland [2022] 1 WLR 367 (SC), as applied to civil contempt in Breen v Esso [2022] EWCA Civ 1405. A fine was insufficient because of the intensive and repeated personal abuse, its impact on the claimants and colleagues, and its interference with the administration of justice. Custody was therefore required, but the terms were measured in days and suspended, having regard to the children’s interests and the objectives of rehabilitation, compliance and punishment identified in Lovett v Wigan Borough Council [2022] EWCA Civ 1631.
4. Sentences of 28 days’ imprisonment suspended for two years were imposed concurrently for the breaches concerning Mr Wood and Ms Ward. Sentences of seven days’ imprisonment suspended for one year were imposed for the breaches concerning Ms Lawrence and Ms Rose. The transcript and earlier judgments were directed to be sent to the Turkish court.