REUTERS | Gonzalo Fuentes

Committal for contempt

The recent case of Barclay v Tuck discussed the settled principles that a court has to consider when an application for committal is made. Spencer J heard the case on 14 May 2018.

Background of case

Over a prolonged period, Mr Tuck posted several articles on various URL addresses making various comments about Sir David Barclay and his twin brother Sir Frederick Barclay.

A number of these posts were deemed to be defamatory by the Barclays and proceedings were commenced in the Paris High Court.

Mr Tuck was charged under Article 222-33-2-2 of the French Penal Code with the crime of mental harassment through public online communication in relation to seven URL addresses. At the same time, the Barclays brought a civil action which sought the prohibition of continued dissemination, in their current state, of the pages accessible at the URL addresses. The Barclays also claimed damages and an order requiring the withdrawal of the web page in question. The Barclays were successful in those proceedings, and judgment was given by the Paris High Court on 15 January 2016.

On 30 June 2016, following the judgment of the Paris High Court, the Barclays’ solicitors wrote to Mr Tuck requiring him to pay the sums awarded by the French court and to remove the offending blogs. The solicitors stated that if this did not happen an application would be made with the English court for enforcement of the French judgment. Mr Tuck was further informed that if he still continued to fail to take down the blogs, an application for contempt of court would be made.

Mr Tuck still did not take the relevant posts down from the internet; therefore, an application was made under the Recast Brussels Regulation pursuant to CPR 74.4A.

Turner J made an order on 14 December 2016 which stated that Mr Tuck must withdraw various web pages and quoted the relevant URL addresses. The defendant was ordered to pay the costs of the application. The order was also headed with a penal notice.

Mr Tuck applied to set aside the order, but this application was dismissed on 29 December 2016. On 26 January 2017, the Barclays’ solicitors issued an application for committal. The application was heard on 15 February 2017 before William Davis J. The hearing was adjourned due to the fact that Mr Tuck was unrepresented and had arrived at court with a large volume of documents. He had not served a witness statement in accordance with the Civil Procedure Rules.

It is of note that between 20 December and 26 January, Mr Tuck had modified five out of seven of the offending blogs. He could not amend the remaining two due to the fact that he had lost his passwords to email accounts.

The committal application was heard by Turner J on 28 March 2017. The claimants had instructed an expert witness to provide evidence in relation to the technical issues as to whether Mr Tuck was unable to access the offending blogs. At that hearing, Turner J suggested that the expert and Mr Tuck sit down together with a view to accessing the blogs Mr Tuck could not access. However, this did not work and the hearing was again adjourned but with further orders. The new order stated that the defendant should use his “best efforts to procure the deactivation” of web blogs. Despite considerable efforts by Mr Tuck and intervention by Barclays’ solicitors, the offending blogs were not able to be taken down. The relisted committal hearing took place in front of Spencer J.

The decision of Spencer J

Spencer J considered the case law behind contempt of court. It is noteworthy that Mr
Tuck did not give evidence at that hearing. Spencer J considered whether Mr Tuck
had used his best efforts to procure deactivation of the web blogs. He stated:

“Best efforts means the same as best endeavours and best endeavours means the same as all reasonable endeavours… I accept that there is no absolute obligation to achieve the objective.

It is therefore for the Claimant to prove to the criminal standard that the Defendant has failed to use his best efforts to procure the deactivation of the blogs… that means proving that the Defendant has not been genuine in his efforts to achieve that objective and that there was a reasonable step he could and should have taken but failed to take.”

The claimant provided circumstantial evidence to try and persuade the court that Mr
Tuck was guilty of contempt of court. Spencer J considered the evidence and
concluded that the claimant had failed to prove that allegation in relation to all four
allegations of contempt.

Commentary

Spencer J considered previous case law and principles in relation to committal for
contempt applications, notably:

  • The court must ask itself whether it was in the defendant’s power to comply with
    the order. The burden of proof is upon the claimant to establish that it was
    within the defendant’s power to do what the order required.
  • The absence of a penal notice will not always be fatal to a committal application
    as it can be remediable under PD 81.16.2.
  • Where a party does not give oral evidence at a hearing, the party’s witness
    statement will be treated as hearsay.

Note to the practitioners

  • As the test for a committal application is the criminal test, the burden of proof is
    upon the party seeking the committal order. It is vital that the evidence garnered
    by the person making the application outlines the totality of their case and proves
    to the court that the criminal standard of proof is met.
  • Although circumstantial evidence is helpful, direct evidence will assist in proving
    beyond reasonable doubt to the court that the defendant is in contempt of
    court.
Hodge Jones & Allen Claire Kitchen

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