FW Aviation (Holdings) 1 Limited v Vietjet Aviation Joint Stock Company

The issue on this appeal is whether an injunction respondent who has not actually done anything prohibited by the injunction can be guilty of contempt of court for acting contrary to the spirit and purpose of the injunction.

In March 2023 the respondent, FW Aviation (Holdings) 1 Ltd (‘FWA’), obtained an interim injunction against the appellant, VietJet Aviation Joint Stock Company (‘VietJet’), prohibiting it from ‘taking possession of or operating [four identified] Aircraft either directly or indirectly or otherwise interfering with [FWA’s] right to possession, custody and/or control of the Aircraft’. VietJet subsequently sent a number of letters to public authorities in Vietnam which, at least on one view, were an attempt to interfere with the export of the aircraft from Vietnam.

In August 2024 FWA applied for permission to amend an extant contempt application by adding a new allegation that the sending of these letters constituted a contempt. FWA made clear that it did not contend that VietJet had infringed the injunction by sending the letters. Rather, its case was that the letters were an attempt to circumvent the injunction, contrary to its spirit and purpose, and thus an intentional interference with the administration of justice amounting to a criminal contempt of court.

Mr Justice Picken granted permission to make this amendment, but did not address VietJet’s key argument that it was impossible in law for the respondent to an injunction to commit a contempt in relation to the injunction without actually infringing it. On this appeal VietJet contends that he was wrong to do so.

I have concluded that the appeal must be allowed. The answer to the question identified in para 1 above, at least in the circumstances of the present case, is ‘No’.

FWA is part of FitzWalter Capital, a ‘special situations’ fund. VietJet is a Vietnamese airline. The background to the parties’ wider dispute is set out in the judge’s liability judgment of 31^st July 2024 ([2024] EWHC 1945 (Comm)). For the purpose of this appeal I can summarise the facts as follows.

The substantive proceedings concern four Airbus A321 aircraft which VietJet originally leased under a complex financing structure (the ‘Aircraft’). In 2021, after VietJet fell into arrears on rental payments as a result of the Covid-19 lockdown and suspension of air travel in Vietnam, the FitzWalter group bought out the interests of the original lenders and lessors and sought both to acquire the Aircraft and to pursue substantial monetary claims against VietJet under the terms of the leases.

FWA commenced these proceedings in August 2022 seeking possession of the Aircraft and associated equipment. In November 2022 the parties agreed a consent order which recorded VietJet’s agreement to FWA’s right to possession, custody and control of the Aircraft, which were in Vietnam, and its consent to the de-registration and export of the Aircraft. In December 2022 and January 2023 FWA de-registered the Aircraft from the Vietnamese Civil Aviation Register and re-registered them in Guernsey. FWA then sought to export the Aircraft from Vietnam with a view to putting them back on the international aircraft leasing market.

In February-March 2023, some shareholders of VietJet brought proceedings in Vietnam against the Civil Aviation Authority of Vietnam (‘CAAV’) and obtained an injunction suspending the de-registration of the Aircraft from the Vietnamese register and declaring that VietJet was entitled to have them re-registered so as to continue operating them. It is FWA’s case that these proceedings were procured by VietJet’s then CEO (Madam Thao) and managing director (Dr Phuong); and that the letter by which VietJet had purportedly consented to the de-registration and export of the Aircraft was not formally valid.

As a result of these developments, on 31^st March 2023 FWA applied for and obtained a without notice injunction from Mr Justice Waksman which prohibited VietJet from interfering with FWA’s right to possession, custody and/or control of the Aircraft. That order was continued, unopposed, by Mr Richard Salter KC (sitting as a Deputy High Court Judge) on 14^th April 2023. It prohibited VietJet from:

‘(i) taking steps to reregister the Aircraft with the CAAV; and (ii) taking possession of or operating the Aircraft either directly or indirectly or otherwise interfering with the Claimant’s right to possession, custody and/or control of the Aircraft’.

Also on 31^st March 2023, FWA issued a contempt application against VietJet, Madam Thao and Dr Phuong. The application alleged two grounds of contempt, one against all three defendants for failing to provide a valid letter of consent to the de-registration and export of the Aircraft, which was said to be in breach of the consent order, and one against VietJet only, relating to the bringing of the Vietnamese proceedings, which was said to be an intentional interference with the administration of justice by frustrating FWA’s right to possession, custody and control of the Aircraft under the consent order. Those allegations are due to be tried in 2026.

Following orders for specific disclosure before the trial of the substantive claims, VietJet disclosed correspondence in May 2023 with the CAAV and the Vietnamese Customs Authority. In this correspondence VietJet challenged the ability of the Vietnamese authorities to issue an Export Certificate of Airworthiness in circumstances where the Aircraft had been re-registered in Guernsey. In September and October 2023, VietJet sent further similar letters to the CAAV, the Deputy Prime Minister of Vietnam, the Deputy Transport Minister and the Ministry of Transport in relation to the Aircraft and the dispute with FWA. It is this correspondence, to which I shall refer as ‘the Letters’ without needing to distinguish between them, which has given rise to the present application and appeal.

In June 2024, the trial of liability took place before Mr Justice Picken. In his judgment dated 31^st July 2024 he found, in favour of FWA, that (i) the leasing of the Aircraft had been validly terminated in October 2021, and (ii) FWA had taken valid assignments of the lessors’ rights and therefore had standing to bring its claims. He criticised VietJet for sending the Letters, which he characterised as an attempt to interfere with the export of the Aircraft and put pressure on FWA to sell or re-lease them to VietJet. VietJet’s appeal to this court was dismissed on 24^th June 2025 ([2025] EWCA Civ 783). An application to the Supreme Court for permission to appeal was refused on 31^st October 2025.

By August 2024 FWA had successfully exported three of the four Aircraft from Vietnam. The fourth was exported on 13^th March 2025.

On 17^th April 2025 Mr Justice Picken handed down a further judgment addressing quantum issues. He held that VietJet was liable to pay termination sums to FWA totalling US $181 million. This court refused permission to appeal against this judgment on 9^th July 2025. A further trial to address remaining issues of quantum is due to take place in March 2026.

Following the liability judgment, on 13^th August 2024 FWA issued an application to amend its contempt application by adding three new grounds of contempt, two of which – referred to as grounds 3(a) and 3(c) – related to the Letters. In each case, FWA alleges that in sending the Letters VietJet:

‘intentionally interfer[ed] with the administration of justice by attempting to circumvent the prohibition on VietJet from interfering with the Claimant’s right to possession, custody and/or control of the Aircraft under paragraph 1 of the Prohibitory Injunction.’

We are not concerned with the third new ground of contempt, numbered 3(b), for which Mr Justice Picken refused permission to amend.

It was not initially clear whether it was FWA’s case that VietJet had infringed the injunction by sending the Letters. However, at the hearing of the amendment application, Mr Richard Lissack KC confirmed that FWA did not allege a breach of the injunction. Rather, its case was that, by sending the Letters, VietJet indirectly undermined the rights conferred on FWA by the orders of the court and that it acted in attempted circumvention of the injunction. In response, VietJet argued, among other things, that it could not be liable for contempt by attempting to circumvent the injunction if what it had actually done was not alleged to be a breach of the injunction.

The judge gave a short extempore judgment. He referred at the outset to the distinction between civil and criminal contempt, as explained in Arlidge, Eady & Smith on Contempt, 5^th Ed (2017):

‘3.1 Contempts of court have traditionally been classified as being either criminal or civil. In England, the general approach has been that a criminal contempt is an act which so threatens the administration of justice that it requires punishment from the public point of view; whereas, by contrast, a civil contempt involves disobedience of a court order or undertaking by a person involved in litigation. In these cases, the purpose of the imposition of the contempt sanction has been seen as primarily coercive or “remedial”.’

Although the terminology of ‘civil’ and ‘criminal’ contempt has often been criticised, and the practical difference between a finding of civil and criminal contempt is less significant than it once was (see Butterworth’s Law of Contempt, 4^th Ed (2010), para 6.74), it is convenient to continue using these terms and I shall do so in this judgment, while noting that the Law Commission has proposed a new framework for the law of contempt (Consultation Paper No. 262 dated 9^th July 2024, para 2.47).

After describing the proposed new grounds and recording the submission by Mr Alexander Milner KC for VietJet ‘that none of the new grounds has any real prospect of success, in circumstances where, on a proper reading of the Prohibitory Injunction, the matters complained about do not amount to a breach of the injunction made’, the judge came to his decision. The part of his reasoning which came closest to addressing this particular objection was as follows:

‘18. I take the point that Mr Milner makes, namely that at least on the face of the Contempt 3 allegations, there is an allegation of “violation” (to use the word adopted) of the Prohibitory Injunction, yet Mr Lissack has explained orally today that what he has alleged is not a breach of that injunction and, therefore, not a civil contempt, but rather a criminal contempt of the sort to which Arlidge refers. In reality, however, I regard that clarification as being no more than that. The thrust of the complaints made, it seems to me, is quite clear: it is, in very much shorthand, that VietJet and the other two proposed Defendants sought to undermine or interfere with the administration of justice, including the essence of what was ordered through the Prohibitory Injunction, if not the literal substance of that order.

19.

In those circumstances, today’s hearing has no doubt proven helpful both to the Court and to VietJet and the other proposed Defendants, in understanding the case that they have to meet. It is not a reason, however, to regard that case as being insufficiently pleaded, still less as having insufficient merit as to justify its progress to a hearing.’

It was common ground between the parties on this appeal that in this passage the judge did not grapple with the submission which Mr Milner had made, i.e. that unless VietJet had actually breached the injunction, the sending of the Letters could not put it in contempt. Rather, he appears to have understood the objection as limited to a complaint that the allegation made was not clear, which was resolved by Mr Lissack’s explanation of the way in which the case was put. It is clear, however, that the judge correctly understood this explanation, not as being that VietJet had breached the injunction, but that it had acted contrary to its spirit or ‘essence’.

Mr Ali Malek KC for VietJet emphasised that there is no allegation that VietJet breached the injunction, so that the case against it is confined to an allegation of criminal contempt. He emphasised also the serious consequences of a finding of contempt and the need for a high standard of procedural fairness. He contrasted the position of injunction respondents and third parties. Third parties cannot be in breach of an injunction which is not directed against them, and can only be liable in relation to an injunction if (1) they aid or abet the respondent’s breach or (2) they knowingly do an act prohibited by the injunction, thereby subverting the court’s purpose and interfering with the administration of justice. Injunction respondents, on the other hand, either breach the injunction and are in contempt or not. There is no scope for liability in contempt on the basis that an injunction respondent has acted contrary to the court’s purpose without actually breaching the injunction. That is because the court’s purpose is to be found exclusively in the terms of the injunction.

Mr Richard Lissack KC for FWA made his submissions under five headings. In brief summary, these were as follows.

First, he submitted that the purpose of and essential rationale for the law of contempt, so far as injunctions are concerned, is to ensure that there is no usurpation of the function of the court and thereby to prevent any interference with the due administration of justice. The conduct which may amount to a criminal contempt is open ended, extending more broadly than civil contempt, and covering any conduct, including by an injunction respondent, which intentionally impedes the administration of justice by frustrating the purpose of the injunction. In support of the submission that criminal contempt extends more broadly than civil contempt Mr Lissack relied on Lord Toulson’s observation in Director of the Serious Fraud Office v O’Brien [2014] UKSC 23, [2014] AC 1246 that:

‘39. A criminal contempt is conduct which goes beyond mere non-compliance with a court order or undertaking and involves a serious interference with the administration of justice. …’

I note, however, that Lord Toulson immediately went on to say:

‘… Examples include physically interfering with the course of the trial, threatening witnesses or publishing material likely to prejudice a fair trial.’

Second, Mr Lissack submitted that the purpose of the injunction in this case was to protect FWA’s entitlement to possession, custody and control of the Aircraft and to prevent VietJet from interfering with that entitlement.

Third, he submitted that there was a real prospect that FWA would be able to discharge the burden upon it by proving at the trial that VietJet’s conduct in sending the Letters amounted to an interference with the purpose of the injunction (and therefore constituted the actus reus of a criminal contempt) and that they were sent by VietJet with that intention (so that the mens rea would be established).

Fourth, he submitted that if FWA succeeded in proving these matters, all the elements of a criminal contempt would have been established even in the absence of any breach of the injunction itself.

Finally, Mr Lissack submitted that in the light of these principles, it was apparent that the judge had committed no error of law in granting permission to amend.

I begin with some preliminary observations.

First, on an application to amend, we must take the applicant’s factual case at its highest, the question being whether that case has a real prospect of success at the trial. In this case that means that we should assume for the purpose of this appeal that the sending of the Letters was a deliberate attempt to prevent the export of the Aircraft from Vietnam, done with knowledge of the terms of the injunction. On the basis of the material currently before us, that is not a difficult assumption to make.

Second, for my part, I would have thought that an attempt to persuade the authorities in Vietnam to bar the export of the Aircraft might well, at least arguably, constitute an interference with FWA’s control of the Aircraft in breach of the terms of the injunction. However, Mr Lissack explained during the hearing of the appeal that FWA had considered the position carefully and that it did not contend that the sending of the Letters was a breach of the injunction. As he put it:

‘The question is not whether VietJet was in contempt of the prohibitory injunction but whether VietJet interfered with the administration of justice by interfering with its purpose.’

That is therefore the basis on which we must proceed.

Third, the question identified at the outset of this judgment is one of law which this court is in a position to decide. There is, so far as I can see, no need to defer a decision until the trial and no advantage in doing so, given the full submissions which we have received.

Subject to those observations, I think it helpful to begin by considering some basic principles relevant to committal for a civil contempt consisting of infringement of an injunction by an injunction respondent. Many cases have emphasised that an injunction must state clearly and unequivocally what conduct by the respondent is prohibited, so that a respondent knows precisely what it may and may not do; that such prohibitions will be strictly construed; that a heightened standard of procedural fairness is required when an applicant seeks to commit a respondent for breaching the injunction; and that breach of the injunction must be proved to the criminal standard of proof (e.g. Pan Petroleum AJE Ltd v Yinka Folawiyo Petroleum Co Ltd [2017] EWCA Civ 1525, para 41; Navigator Equities Ltd v Deripaska [2021] EWCA Civ 1799, [2022] 1 WLR 3656, para 82; ADM International Sarl v Grain House International SA [2024] EWCA Civ 33, [2024] 1 WLR 3262, para 80; and Navigator Equities Ltd v Deripaska (No. 2) [2024] EWCA Civ 268, para 47).

The rationale for these basic principles is obvious, not least because of the serious consequences, including committal to prison, which may follow from a finding of contempt.

It would be inconsistent with these principles to hold that an injunction respondent could be in contempt for doing an act which, although not prohibited by the injunction, was contrary to an undefined spirit or purpose of the injunction. As Mr Malek put it, that would be to replace certainty with impressionism. Mr Lissack did not suggest that an injunction respondent could be guilty of a civil contempt in such circumstances. Rather, he invoked the concept of a criminal contempt.

Of course, it is perfectly possible for an injunction respondent to commit a criminal contempt by doing something which is not prohibited by the injunction – for example, by physically interfering with the course of the trial, threatening witnesses or publishing material likely to prejudice a fair trial. But it is clear from the cases considered below that where the conduct complained of is limited to what is said to be subversion of the purpose of an injunction without actually breaching its terms, there is no scope for holding an injunction respondent guilty of a criminal contempt.

The next point, and this too is basic law, is that (leaving aside cases where the third party aids and abets a breach of the injunction by the injunction respondent, which is not the allegation in this case) a third party to whom the injunction is not addressed cannot breach the injunction, and therefore cannot be liable for civil contempt, because it does not prohibit him from doing anything. A third party can only be liable in criminal contempt for interfering with the administration of justice. As Lord Diplock explained in Attorney-General v Leveller Magazine Ltd [1979] AC 440, 449F:

‘although criminal contempts of courts may take a variety of forms they all share a common characteristic: they involve an interference with the due administration of justice either in a particular case or more generally as a continuing process. It is justice itself that is flouted by contempts of court, not the individual court or judge who is attempting to administer it.’

In cases where the complaint is that a third party has frustrated the purpose of an injunction (‘injunction cases’), the third party can only commit a criminal contempt by doing an act which is prohibited by the injunction. Common examples are where, with knowledge of the injunction, a newspaper publishes something which the injunction respondent has been prohibited from publishing or a bank, also with knowledge of the injunction, deals with funds which are frozen by a freezing order.

Thus in Attorney-General v Times Newspapers Ltd [1992] 1 AC 191 (the ‘Spycatcher’ case) the issue was whether publication of extracts from Mr Peter Wright’s book constituted the actus reus of a criminal contempt. Times Newspapers submitted that it did not: it was not itself restrained by the injunction, although it knew that other newspapers were, so its publication of the extracts was not capable of being a contempt of court. Lord Oliver analysed the submission as follows (217F-218B, emphasis added):

‘This submission involves some analysis of the particular type of contempt with which this appeal is concerned. A distinction (which has been variously described as “unhelpful” or “largely meaningless”) is sometimes drawn between what is described as “civil contempt”, that is to say, contempt by a party to proceedings in a matter of procedure, and “criminal contempt”. One particular form of contempt by a party to proceedings is that constituted by an intentional act which is in breach of the order of a competent court. Where this occurs as a result of the act of a party who is bound by the order or of others acting at his direction or on his instigation, it constitutes a civil contempt by him which is punishable by the court at the instance of the party for whose benefit the order was made and which can be waived by him. The intention with which the act was done will, of course, be of the highest relevance in the determination of the penalty (if any) to be imposed by the court, but the liability here is a strict one in the sense that all that requires to be proved is service of the order and the subsequent doing by the party bound of that which is prohibited. When however, the prohibited act is done not by the party bound himself but by a third party, a stranger to the litigation, that person may also be liable for contempt. There is, however, this essential distinction that his liability is for criminal contempt and arises not because the contemnor is himself affected by the prohibition contained in the order but because his act constitutes a wilful interference with the administration of justice by the court in the proceedings in which the order was made. Here the liability is not strict in the sense referred to, for there has to be shown not only knowledge of the order but an intention to interfere with or impede the administration of justice – an intention which can of course be inferred from the circumstances.’

It was critical, therefore, that the act committed by the third party newspaper, i.e. the publication of extracts from the book, was an act which, if committed by the newspapers which were the injunction respondents, would have been a breach of the injunction and therefore a civil contempt. The same point was made in other speeches in Spycatcher.

Lord Brandon referred to a third party (C) who does an act which, if done by the injunction respondent (B), would have constituted a breach of the injunction by B. He explained that in some cases C’s act would not constitute a contempt of court, giving the example of a trespasser who goes on the claimant’s (A’s) land solely of his own volition and in no way aiding or abetting B. But in other cases it would (see 205G to 207A: emphasis added):

‘These examples … show that the test for deciding whether C has committed a contempt of court is whether C has by his conduct knowingly impeded or interfered with the administration of justice by the court in the action between A and B. … The ground of decision in each of [certain authorities cited] was that the knowing impedance of and interference by C with the administration of justice by the court in the action between A and B, to which C was not a party, was a contempt of court. …

It seems to me, as a matter of principle that, if C’s conduct, in knowingly doing acts which would, if done by B, be a breach of the injunction against him, results in impedance to or interference with the administration of justice by the court in the action between A and B, then, so far as the question of C’s conduct being a contempt of court is concerned, it cannot make any difference whether such conduct takes the form of aiding and abetting B on the one hand or acting solely of his own volition on the other.

It remains to consider in what circumstances conduct by C, in knowingly doing acts which would, if done by B, be a breach of an injunction against him, is such as to impede or interfere with the administration of justice by the court in the action between A and B.’

Lord Ackner also spoke of the third party being ‘liable for contempt by performing an act prohibited by the court’ (215A). Lord Keith of Kinkel agreed with the other speeches (200C).

Similarly in Attorney-General v Punch Ltd [2002] UKHL 50, [2003] 1 AC 1046, Lord Nicholls said that (emphasis added):

‘4. It is a contempt of court by a third party, with the intention of impeding or prejudicing the administration of justice by the court in an action between two other parties, himself to do the acts which the injunction restrains the defendant in that action from committing if the acts done have some significant and adverse effect on the administration of justice in that action: see Lord Brandon of Oakbrook in Attorney General v Times Newspapers Ltd [1992] 1 AC 191, 203D, 206G-H, and, for the latter part, Lord Bingham of Cornhill CJ in Attorney General v Newspaper Publishing plc [1997] 1 WLR 926, 936. Lord Phillips MR neatly identified the rationale of this form of contempt, at [2001] QB 1028, 1055, paragraph 87:

“The contempt is committed not because the third party is in breach of the order - the order does not bind the third party. The contempt is committed because the purpose of the judge in making the order is intentionally frustrated with the consequence that the conduct of the trial is disrupted”.’

The point was repeated in the judgment of the Supreme Court in Wolverhampton City Council v London Gypsies and Travellers [2023] UKSC 47, [2024] AC 983 (emphasis added):

‘36. We have focused thus far on the question whether an injunction can be granted against a non-party. As we shall explain, it is also relevant to consider the effect which injunctions against parties can have upon non-parties.

37.

If non-parties are not enjoined by the order, it follows that they are not bound to obey it. They can nevertheless be held in contempt of court if they knowingly act in the manner prohibited by the injunction, even if they have not aided or abetted any breach by the defendant. As it was put by Lord Oliver of Aylmerton in Attorney General v Times Newspapers Ltd [1992] 1 AC 191, 223, there is contempt where a non-party “frustrates, thwarts, or subverts the purpose of the court’s order and thereby interferes with the due administration of justice in the particular action” (emphasis in original). …

41.

There is accordingly a distinction in legal principle between being bound by an injunction as a party to the action and therefore being in contempt of court for disobeying it and being in contempt of court as a non-party who, by knowingly acting contrary to the order, subverts the court’s purpose and thereby interferes with the administration of justice. Nevertheless, cases such as Attorney General v Times Newspapers Ltd and Attorney General v Punch Ltd [2002] UKHL 50; [2003] 1 AC 1046, and the daily impact of freezing injunctions on non-party financial institutions (following Z Ltd v A-Z and AA-LL [1982] QB 558), indicate that the differences in the legal analysis can be of limited practical significance. Indeed, since non-parties can be found in contempt of court for acting contrary to an injunction, it has been recognised that it can be appropriate to refer to non-parties in an injunction in order to indicate the breadth of its binding effect: see, for example, Marengo v Daily Sketch and Sunday Graphic Ltd [1948] 1 All ER 406 at p 407; Attorney-General v Newspaper Publishing plc [1988] Ch 333, 387-388.’

There is no basis here for concluding that a third party can be liable for a criminal contempt consisting of an act which is contrary to the spirit (or essence or purpose) of an injunction but which does not involve doing anything which the injunction prohibits. Rather, in injunction cases, there will only be the actus reus of a criminal contempt by a third party if there is both (1) the commission of an act which, if done by the injunction respondent, would be a breach of the injunction and (2) an interference with the administration of justice in the action between the claimant and the injunction respondent.

Mr Lissack emphasised the references in these authorities to conduct which subverts the purpose of an injunction. But it is important to understand that the purpose of the court in granting an injunction is neither more nor less than to prohibit the conduct which the injunction restrains. There is no wider purpose of preventing conduct which the injunction does not restrain. This was clearly explained by Lord Nicholls in in Attorney General v Punch Ltd: