AF Noonan (Architectural Practice Ltd) v Bournemouth & Boscombe Athletic Football Club Ltd

This is an appeal from a decision of David Richards J, who was dealing with an application by the applicant to fine the respondents for contempt of court. The learned judge struck out that application. It is important to emphasise that fact, that the proceedings before the judge and the proceedings before us were directed at and concerned with the question as to whether a penalty or punishment should be applied in respect of an alleged contempt of court. They do not extend more widely to other issues that might arise in the context of proceedings conducted in private.

The parties to this matter were as follows. The applicant, who sought the order that the respondent should be fined for contempt, was an architectural practice, A.F Noonan Architectural Practice Ltd (“the Firm”), the moving spirit in which is Mr A F Noonan (“Mr Noonan”). The respondents are the Bournemouth and Boscombe Athletic Community Football Club Ltd (to whom I will refer to as “the club”, meaning thereby not in fact the club but the limited company).

There appear to be long-standing disputes between these parties which culminated, so far as the present application is concerned, with the Firm presenting a winding-up petition against the club in June 2005. That was based upon a statutory demand in which a substantial sum, some £270,000, was claimed in respect of work done by the practice on behalf of the club. The club applied for an injunction restraining further process on the winding up petition, whether by application or otherwise and that matter came before Hart J on 13 July 2005. At that hearing the club successfully applied for the proceedings thereafter to be listed and heard in private under the provisions of CPR Rule 39.2.3. Two grounds were advanced. First of all, 39.2.3(a), that publicity would defeat the object of the hearings and under 39.2.3(c) that the matter involved confidential information including information relating to financial matters.

As David Richards J pointed out, it is very common for such winding-up petitions to be heard in private because damage would be done to the company if allegations were made that thereafter were not substantiated. It should perhaps be noted in the light of what happened later that the Firm unsuccessfully opposed that order for the private hearing. The matter came back before Patten J on 28 and 29 July 2005 for the substantive hearing and a successful application was then made for that hearing to continue to be in private. The upshot of that hearing was that the learned judge held that part of the claim by the Firm was clearly due but the larger part of it was the subject of dispute. He granted an injunction to restrain advertisement until 5 August 2005 but thereafter the Firm would be free to advertise the petition if the undisputable part of the debt had not been paid. The reason for that short restraint was that the club has stated that it would pay off the amount that was agreed to be owed to the Firm, and that in fact happened.

The petition was thereafter not pursued, no doubt for that reason. However, in the interim the chairman of the club, Mr Phillips, immediately after the hearing on 29 July had talked to and indeed given an interview to a reporter for a local paper, reports thereafter being set out in other papers. It is agreed that what the chairman of the club, Mr Phillips, said to the reporter included statements about matters that have occurred before Patten J in the private hearing, and it is also agreed that in so speaking he was acting on behalf of the club. Mr Noonan was aggrieved by that turn of events, not only because he disputed, as I understand it, the truth of some things that were said, a matter with which we are not concerned, but also he himself was not permitted by the injunction until 5 August from, as it were, putting his side of the case in public. As the judge said, on that point he could have applied to the court for the injunction against publication to be lifted, but that is what he did not do.

What the Firm thereafter did, however, was to bring the present proceeding with which we are concerned, seeking to have the club fined for contempt of court in that it had published matter that had been before the judge in private. It is of course somewhat ironic that it was the club that had originally wanted the matter to be in private against the opposition of the Firm.

The question of whether it was a contempt to publish that matter is to be resolved by looking at the interaction of the Civil Procedure Rules that provide for hearings in court on one hand and section 12 of the Administration of Justice Act 1960, which deals with issues of contempt in the case of publication of matters heard in private. I have already referred to and do not need further to set out at this stage the terms of rule 39.2.3 under which the judge acted in deciding that these matters might be in private. Section 12 of the 1960 Act is, however, important and it is necessary to set it out in substantial fullness. Before doing so I will comment that this legislation was part of a scheme that appears to have been intended by Parliament, to resolve a number of disputed issues in the law of contempt of court, and is now the source to which one turns in the first instance to determine questions relating to contempt.

In the course of argument Mr Egleton for the appellant also took us at some length through the well-known case in the House of Lords, Scott v Scott[1913] AC 417. It is clear from the observations of their Lordships in that case where they were seeking to reconcile on the one hand demands of publicity in litigation and on the other hand claims of particular interests that should not be necessarily brought into the full glare of publicity. The draftsman of section 12 had well in mind the guidance that was given in Scott v Scott and the statute largely overtakes that part of that case. Having said all that, section 12 is in the following terms:

Then the draughtsman sets out subsections a-d, which refer to a number of cases, most of them specifically identified in Scott v Scott where publication of matter will automatically be a contempt, including children proceedings, proceedings under the inherent jurisdiction with regard to minors, proceedings under the Mental Health Act, questions of national security and questions relating to secret processes. The draftsman then added this in section 12.1(e):

The effect, and the plain effect, of that section is as follows. Publication and information relating to proceedings before any court sitting in private is specifically said not to be a subject of contempt unless either the case falls under one of the specified categories in subsections a-d; or the court expressly prohibits the publication of information. In the present case, therefore, issues of contempt could not arise unless the court not only ordered under CPR 39.2.3 that the hearing should be in private but also exercised its power under section 12.1(e) expressly to prohibit the publication of information gleaned from or ventilated in that private hearing. There is no argument but that the judge did not make such an order.

Mr Egleton sought to avoid that difficulty, first by saying that the order itself under rule 39.2 required in terms that all information relevant to the proceedings was to be secret. That order, if breached, constituted a contempt in itself and it was not necessary to consider in application section 12. Like David Richards J, I would reject that argument. It is not what rule 39.2 says. If the argument were correct it would render most, if not all, of section 12 of the 1960 Act largely redundant. Also, we have to remember that we are dealing with a question of contempt of court, that is to say a penal matter for which, as this application indeed seeks, a person committing it may be punished. Penal consequences in principle should not follow from mere inference, as is sought to be argued in this case.

Secondly, Mr Egleton relied on a combination of section 12 and of CPR 39.2. He said that an order under CPR 39.2 fell within the provisions of section 12.1(e) of the 1960 Act: that is to say, it was a case where the court, having power to do so, did expressly prohibit the publication of information, and did so by the mere act of making the order to sit in private under CPR 39.2. I would reject that argument also, for the same reason as the first argument failed. If it were correct it would be very difficult, indeed almost impossible, to understand why section 12.1(a-d) are in the Act at all. Secondly, the draughtsman went to the trouble, and understandably went to the trouble because he was dealing with a penal matter, of saying in section 12.1(e) that the court must “expressly” prohibit the publication of all information. For the same reason as I have already indicated in respect of the first argument, expressly here must mean expressly and not impliedly or inferentially by making an order for sitting in private. There is no question here of either Patten J or any other judge having made an express order prohibiting the publication of all information.

The application to impose penal sanctions on the respondents therefore failed for the simple reason that the case did not come and the orders of the court did not come within the jurisdiction of the court in respect of contempt orders.

It was suggested in the course of argument that that rendered the provisions of section 39.2.3 largely nugatory. That argument could not prevail against the clear working of the statute, but I think it is right that I should record that the argument is not correct. There may be many benefits of holding a hearing in private -- that is to say with the exclusion of the press and public -- that do not necessarily require thereafter prohibition of the publication of everything that has taken place at the hearing. There is no doubt that that was in the minds of the judges in the House of Lords in Scott v Scott when they identified some cases but not others where publication should equally be prohibited.

I would not want to commit myself, in these proceedings, as to whether there might be any other sanction considered by way of injunction against the publication of information that is put forward in a private hearing. We are concerned in this appeal solely with an application for punishment for contempt of court in respect of a private hearing and, for the reasons which I have indicated that application necessarily fails.

It is perhaps strange that deliberate publication of information relating to proceedings held in private, or, to use the language in section 12.3 of the Administration of Justice 1960, “in camera or in chambers”, does not automatically constitute a contempt of court. Nevertheless, in the context of the publication of proceedings: the quasi criminal jurisdiction of contempt of court is not engaged unless one or other of the situations specified in section 12.1(a-e) is established. The statute is entirely clear. Publication after the court has expressly prohibited it falls within the ambit of section 12, but absent an express order, unless otherwise within section 12.1(a-d), it does not.

The statute proceeds on the basis that the court has jurisdiction to make such an express order and if it does not create it certainly provides ample authority for the existence of the jurisdiction to make it. The question is whether an order for a private hearing in accordance with CPR 39.2 should be treated as an express prohibition on publication within section 12.1(e) of the 1960 Act. The problem with the contention is that it elides the procedural arrangements which lead to a hearing in private, or in camera, or in chambers, with the express prohibition in section 12.

Three observations are appropriate. First, CPR 39.2 does not dis-apply, and it would be astonishing if it purported to dis-apply, the primary legislation in section 12. Second, nothing in CPR.39.2 either expressly or by implication suggests that an order for a hearing in private carries with it the express prohibition referred to in section 12 of the 1960 Act. Third, CPR 39.2 is concerned with the circumstances in which and procedure by which an order for a hearing in private may be ordered. Accordingly, the elision is inappropriate.

The only proceedings with which section 12 of the 1960 Act is concerned are contempt of court. It therefore does not follow from the fact that publication cannot be treated as a contempt of court that other possible remedies for unauthorised publication have been extinguished. For those reasons and those given by my Lord, Lord Justice Buxton, I agree that this appeal should be dismissed.

I agree with both judgments. The appeal will be dismissed.