Reference: [2013] EWHC 283 (QB); [2013] EWHC 332 (QB)
Court: High Court (QBD)
Judge: Tugendhat J
Date of judgment: 25 Feb 2013
Summary: Contempt - committal - undertakings - penalty
Appearances: Adrienne Page KC - Leading Counsel (Claimant) Jacob Dean (Claimant)
Instructing Solicitors: Carter-Ruck for McCanns
Facts
In mid 2009 the Claimants’ solicitors complained to the Defendant that he had been engaged in a course of conduct which constituted harassment and which included the publication of numerous libels.
In resolution of that complaint the Defendant agreed, amongst other things, to give undertakings to the Court not to repeat the allegations which had been complained of. Those undertakings were recorded in an Order dated 25 November 2009.
Following repeated complaints by the Claimants’ solicitors to the Defendant that he had been acting in breach of those undertakings by publishing material containing the allegations in question, the Claimants issued an application seeking the committal of the Defendant on 1 December 2011.
Following various delays and adjournments the application came before the Court on 5 and 6 February 2013 for determination as to whether the Defendant was in breach of his undertakings, and if so, what, if any penalty should be imposed.
The Defendant did not dispute responsibiity for the publication of the material in question. He argued that he should not be found in contempt for a number of reasons, primarily because (i) the undertakings were given under duress, namely the threat of a ruinous libel action (ii) it would be unfair if he should be punished for saying what millions of others were free to say and (iii) it would be contrary to his Article 10 rights if he were found in contempt for publishing defamatory allegations to which there may be a defence had they formed the subject of a libel action.
Issue
Had the Defendant broken his undertakings?
If so, what, if any penalty should be imposed?
Held
The Court found that the Defendant was in breach in each of the 13 instances which the Claimants set out to prove at the hearing of their application. After hearing mitigation from the Defendant, the Judge imposed a sentence of 3 months imprisonment, suspended for one year, on condition that the Defendant comply with his undertakings. The Defendant was ordered to pay the Claimants’ costs.
Comment
The Judge dismissed the Defendant’s arguments as irrelevant to the issue on the committal application, referring to long-standing authority that orders (and undertakings to the Court) must be obeyed as long as they remain in force. He said :
“The right to freedom of expression, whether at common law or under Art 10, is not an absolute right that prevails over all others. In the present case it is subject to the Claimants’ rights under the judgment which they obtained in November 2009 (which incorporates the Undertakings), and to the need to uphold the authority of this court, which made that order.”
The Judge made an interesting aside on the question of open justice. He said that he had chosen not to repeat the entirety of the publications complained of in his judgment, but stressed that his decision not to do so was not a reporting restriction, nor any other derogation from open justice. He gave the following reason, referring to a previous reserved judgment in which he had used initials to refer to individuals:
“… what happens in court, if not reported at the time, may be emphemeral, and may soon be forgotten and become difficult to recover, whereas a reserved judgment may appear in law reports, or on the internet, indefinitely. So it may be unnecessary, and unfair to some persons, to name them in a judgment.”