Richard Achille v Philip Calcutt & Anor

Richard Achille is a qualified personal trainer, licensed tennis referee, basketball coach, and masseur. In 2014, he was an adult member of the Moseley Tennis Club in Birmingham. Following reports about Mr Achille’s conduct at a junior tournament on 23 April 2014, his membership was first suspended and then terminated. By these proceedings, Mr Achille seeks to commit to prison the then club chairman, Philip Calcutt, and the then club secretary, Jane Carrington, for alleged contempt of court arising out of their handling of this issue. Specifically, it is alleged that they “doctored” emails received by the club raising concerns as to Mr Achille’s conduct on 23 April and that they falsely asserted that the Lawn Tennis Association (“the LTA”) had advised that Mr Achille be reported to the police.

By an application dated 25 September 2023, Mr Calcutt and Ms Carrington seek to strike out or stay the contempt proceedings. By his own application dated 8 October 2023, Mr Achille seeks permission to amend his contempt claim. Both applications came before me on 22 November 2023. I then ventured two important preliminary views:

While I heard the parties on amendment and the need for permission on 22 November 2023, they were not then ready to argue the question of whether permission should be granted. I therefore adjourned the matter and heard further argument on 29 November 2023.

Mr Achille initiated these committal proceedings by issuing a Part 8 claim on 20 February 2023. The claim was supported by Particulars of Contempt of Court dated 18 February 2023. On 22 March 2023, Her Honour Judge Emma Kelly expressed concern as to the lack of clarity in Mr Achille’s case and ordered that he should file and serve a revised schedule of allegations of contempt clarifying and particularising his case.

There are a number of different iterations of Mr Achille’s case now before the court. In the course of his submissions, Mr Achille clarified that the final documents upon which he seeks to commit the defendants are the amended claim form at page 562 of the hearing bundle, the Amended Particulars of Claim dated 30 March 2023 at page 565, and the Amended Scott Schedule wrongly dated but in fact served with a supplementary statement dated 24 April 2023 at page 356.

Helen Bell, who appears for the defendants, resists the application to amend. She argues that Particulars of Claim are not known to the Part 8 procedure. Further, she contends that the amended allegations have no real prospect of success, that Mr Achille has failed properly to explain why they were not made from the outset, and that they will cause manifest and obvious prejudice to the defendants in facing these allegations nearly a decade after the events took place. She argues that Judge Kelly’s order required proper particularisation of the existing case and was not an invitation to add to the scope of the contempt claim. In any event, she submits that the amended particulars remain difficult to understand and fail properly to plead the basic ingredients of the committal application.

I did not call upon Mr Achille on the issue of amendment and I allow his application:

By his final amended schedule, Mr Achille originally sought to pursue nine allegations of contempt. He now concedes that he cannot establish a strong prima facie case in respect of allegations 1, 4, 5, 7 and 8. Accordingly, Mr Achille only seeks to commit the defendants on four allegations. The remaining allegations are pleaded as follows:

Rule 81.3(5) of the Civil Procedure Rules 1998 provides:

Mr Achille agrees that permission is required. Indeed, his amended claim form and supporting documents expressly seek permission. Against that, Kevin Lawson’s witness statement served in support of the defendants’ application to strike out or stay these proceedings took no point on permission and argued that these committal applications were made in existing proceedings, namely claims A90BM255, A90BM307 and A90BM308. Such position was not maintained in argument before me, and Ms Bell did not seek to dissuade me from my preliminary view that permission is in fact required upon a proper application of r.81.3(5).

In my judgment, the parties are right to recognise that permission is required in respect of each of the allegations now pursued. Given the terms of Mr Lawson’s evidence, the fact that the issue was raised by me, and the fact that Mr Achille is a litigant in person, it is appropriate briefly to explain the reasons for this conclusion.

Allegations 2, 3 and 6 are not pleaded on the basis that the defendants made false statements in documents verified by statements of truth. Properly analysed, they are allegations of interference with the due administration of justice. Permission is therefore required pursuant to r.81.3(5)(a) unless the alleged interference was “in relation to existing High Court or county court proceedings.”

In a number of cases the courts have had to grapple with the proper interpretation of “existing proceedings” in the exception to r.81.3(5)(a). The caselaw is principally concerned with the question of whether an application is in relation to “existing proceedings” once such proceedings have come to an end:

I agree with Bacon J that the rule distinguishes between the position where the allegation of contempt is in relation to proceedings that have come into existence and cases where the proceedings remain intended or indeed have never come into existence. Accordingly, the subsequent issue of proceedings does not mean that an earlier contempt was committed in relation to existing proceedings. There is some logic in such approach since otherwise the need for permission might change long after the alleged act or omission and turn upon the vagaries of whether proceedings are subsequently issued.

Mr Achille has issued a substantial number of claims in respect of the incident at the tournament and the subsequent conduct of the Moseley Tennis Club, its officials, a deputy head teacher, a school, and the LTA:

Mr Achille contends that the doctoring of the emails interfered with the administration of justice in his defamation proceedings against Mr Haddleton and Mr Kettle (claims A90BM307 and 308). Further, the alleged dishonesty in asserting that the LTA had advised the club to report Mr Achille to the police is said to have interfered with the administration of justice in Mr Achille’s claim against the LTA (E90BM146). No such proceedings had, however, been issued at the time of the conduct complained about in allegations 2, 3 and 6. Accordingly:

On its face, allegation 9 complains that the defendants instructed their solicitors that the LTA had requested police involvement. The allegation adds that such matter was then pleaded in the Defence in claim D90BM137. That is a reference to paragraph 42 of the Defence filed by Mr Calcutt, Ms Carrington and others which pleads that:

I suspect that the formulation of allegation 9 can be explained by the fact that the statement of truth in the Defence was signed by the defendants’ solicitor. Where, however, a legal representative signs a statement of truth on behalf of a client, he will be taken as verifying that:

Indeed, I note that the allegation is dated between 26 June 2017 (being the date when claim DM90BM137 was issued against these defendants and five other people) and 27 November 2017 (being a few days after the date on the Defence in that action).

In Verlox International Ltd v. Antoshin [2023] EWHC 86 (Comm), Foxton J considered an allegation of contempt that the defendant had authorised and caused his solicitor to make a false statement. The judge referred to Practice Direction 22 and concluded that the requirement of permission could not depend upon the way in which the allegation was framed. I agree and repeat my observation in UK Insurance, at [27], that the need for permission cannot turn on the skill of the draftsman but must be approached on the basis of the true substance of the allegation.

In my judgment, the essence of allegation 9 is that the defendants are said to have made a false statement in their Defence, being a document that was verified by their solicitor. That allegation is caught by r.81.3(5)(b) and accordingly the court’s permission is required.

Permission should only be granted to make a contempt application where:

In considering the strength of the case, it is necessary to identify what will ultimately need to be proved:

Judges have made clear in a number of cases that considerable caution is required in considering whether committal proceedings are in the public interest:

Mr Achille is right to submit that subjective motive is not relevant in private committal applications for breach of orders or undertakings: Navigator Equities Ltd v. Deripaska [2021] EWCA Civ 1799, [2022] 1 W.L.R. 3656. Indeed, as Carr LJ (as she then was) observed at [123], there will nearly always be a degree of animus between parties to a civil committal application. This is, however, an application for permission to bring public law proceedings (defined by Carr LJ as committal proceedings other than for breach of an order or undertaking) and, in accordance with KJM, the court can and should guard against the risk of vindictive litigants using such public proceedings to harass those against whom they have a grievance.

In Stobart, Gloster LJ gave the following guidance in respect of false statement cases at [44(vii)]:

Gloster LJ added in Stobart, at [44(vi)]:

In Berry, Akenhead J observed at [37]:

Delay in bringing contempt proceedings can be a significant factor: Barnes v, Seabrook [2010] EWHC 1849 (Admin), at [47]. Further, the court must consider the case against each defendant and upon each ground separately: Patel v. Patel [2017] EWHC 1588 (Ch); Attorney General v. Yaxley-Lennon [2019] EWHC 1791 (QB), [2020] 3 All E.R. 477, at [98].

As to allegations 2-3, Mr Achille points to the fact that Mr Calcutt has admitted altering the emails. He asserts that Mr Calcutt’s email of 15 May 2014 showed that he and other committee members expected possible legal action. He points out that the complaints concerned safeguarding issues and that police involvement was requested. He therefore characterises the matter as quasi-criminal and argues that this underlines the importance of not altering the evidence. He contends that Mr Calcutt’s actions “took away” the lack of professionalism in the emails and dramatically affected his claim for reputational damage.

As to allegations 6 and 9, Mr Achille relies on the fact that the LTA gives a different account in that, at paragraph 33 of its Defence in claim E90BM146, it pleaded:

Further, Mr Achille relies on an email from Phil Doorgachurn, the Safeguarding Manager at the LTA, sent on 20 May 2014 in which the Association advised:

Mr Achille argues that both accounts cannot be right, and the court needs to come to a definitive view.

Mr Achille insists that he has acted proportionately and with restraint. He points to the fact that he withdrew two allegations in his skeleton argument filed in advance of the adjourned hearing. Further, in the course of oral argument, Mr Achille accepted that he could not establish a strong prima facie case in respect of three further allegations. Consequently, he only now seeks the court’s permission to proceed with four of the nine allegations pleaded in his amended particulars. Mr Achille submits that he has demonstrated a willingness and ability to review his case objectively and to withdraw allegations that were not sustainable. Further, he argues that these proceedings are proportionate in that they are only brought against two committee members.

He submits that these proceedings are in the public interest given the great importance of truthfulness in safeguarding issues. He points to the risk of untruths in the sensitive area of safeguarding escalating from rumours to violence and even death. He insists that he can be dispassionate, that he has knowledge of safeguarding issues and that he is willing to act. He argues that it would breach his Article 6 rights not to allow his case to go forward.

Ms Bell argues that the allegations fall a very long way short of the strong prima facie case that is required:

Ms Bell relies on the fact that Mr Achille has been the subject of two civil restraint orders; a limited civil restraint order made in January 2019 and an extended civil restraint order made in March 2022. She submits that Mr Achille is using the repeated issue of proceedings as a means of harassing the defendants because of their involvement in his suspension and expulsion from the club. She submits that he is plainly not a proper person to bring the contempt claim. Further, she argues that the claim is an abuse of process and should in any event be struck out under all three limbs of r.3.4(2).

Ms Bell submits that there has been clear and significant delay since March 2019 when Mr Achille first became aware of the unredacted emails. She points to the likely total costs of these proceedings and submits that they are disproportionate.

Mr Achille responds that the contempt application is not abusive and insists that there has been no trial on the merits of these matters. Indeed, he counters that it is an abuse to continue to hold previous civil restraint orders against him.

The alleged amendments to the emails from Sean Kettle and Simon Haddleton are plainly central to these allegations and I must now carefully consider the full unredacted emails and the amendments made. When I do so, and mindful of the sensitivity in this case, I do so without correcting or highlighting any apparent typographical errors.

Sean Kettle, the tournament referee, emailed Mr Calcutt on 23 April 2014 raising his concerns about Mr Achille’s conduct. His email was copied to the club’s head coach, Tim Linton. Mr Kettle wrote:

On 25 April, the tournament organiser, Simon Haddleton, emailed Mr Linton about the same incident. Save that I have anonymised the details of players who were then children, the email read:

The club’s committee suspended Mr Achille pending a meeting to discuss these matters on 30 April 2014. His membership was subsequently terminated.

On 4 June 2014, the club responded to Mr Achille’s subject access request by, among other matters, forwarding him a Word document entitled “tennis emails 28 April.” That document started with the following text:

Mr Kettle’s email of 23 April was then copied and pasted into the document at that point, albeit with four amendments:

The email from Mr Haddleton was then copied and pasted but again with a number of amendments:

The narrative then continued:

An email inviting Mr Achille to the meeting on 30 April was then copied and pasted into the document. There was finally a stray email header dated 28 April.

The metadata indicate that Mr Calcutt created the Word document and suggest that the Word document was created and last saved on 28 May 2014. Against that, I observe that the filename indicates that the document might have been originally created on 28 April. That is at least possible given that it appears to deal with matters up to 28 April and before the committee’s meeting with Mr Achille on 30 April. Further, I note that the metadata describe the document as revision 2 and do not record any editing time on 28 May. Against that, Mr Achille only became an “ex-member” subsequently when his membership was terminated. I infer that if the document was originally created on or around 28 April then it was only finalised later.

The first three amendments to Mr Haddleton’s email were all of a kind. They excised Mr Kettle’s observation that Mr Achille was “strange”, the mother’s concern that he might be “dangerous”, and Mr Haddleton’s own assessment that he was “extremely odd.” Each is a somewhat pejorative comment that risked generating more heat than light and the obvious inference from the evidence before me is that, when summarising the complaints and issues for the committee, these amendments were made in order to focus on the real issue raised by Messrs Kettle and Haddleton. The fourth deletion was not material.

The amendments to Mr Kettle’s email were less significant. Subject to contrary evidence, I infer that the amendments were broadly intended to remove references to other conversations so that the extracts quoted from the email simply set out Mr Kettle’s own concerns and observations.

In order to obtain permission to pursue these allegations, Mr Achille must satisfy me that there is a strong prima facie case that Mr Calcutt and Ms Carrington acted in contempt of court in that they interfered with the administration of justice by making such amendments on or about 28 May 2014 and then by providing the Word document to Mr Achille on 4 June 2014. In my judgment, Mr Achille gets nowhere close to making out such a case:

Whatever might have been intended, I accept that the club and the LTA have pleaded contradictory positions on the question of the LTA’s advice. The simple position is that Mr Calcutt and Ms Carrington have asserted that the LTA advised the club to report matters to the police whereas the LTA appears to dispute that account. It is not unusual in litigation to have a difference of recollection or understanding between different parties to a telephone conversation. That of itself does not start to justify contempt proceedings. Mr Achille has placed no evidence before the court that establishes a strong prima facie case that Ms Carrington is not just wrong in her recollection or understanding of the telephone conversation with Mr Lea in late April 2014 but that she intended to bring about a state of affairs which, objectively construed, amounted to an interference with the administration of justice by falsely reporting the position to Mr Calcutt. Equally there is no evidence that she knowingly made a false statement about that conversation in her Defence in claim D90BM137.

Further, there is no evidence whatever to establish a strong prima facie case against Mr Calcutt who was not himself party to the telephone conversation and would necessarily have been dependent on what he was told about it by Ms Carrington.

Accordingly, the applications for permission fall at the first hurdle and it is not strictly necessary to consider public interest, proportionality, or the overriding objective. I am, however, in no doubt whatever that the public interest will not be served by allowing these committal proceedings to be brought:

Further, I have no doubt that these proceedings are disproportionate and are not brought in accordance with the overriding objective. As already recorded, Mr Achille has brought no fewer than nine other claims in respect of these and connected events. His pursuit of his grievances through the courts has long since ceased to be proportionate. Indeed, I repeat my conclusion that the matters in respect of which he now alleges that the defendants are in contempt of court (being the edited copying and pasting into a Word document of the salient parts of two emails and a dispute as to whether the LTA did or did not advise the club to contact the police) are not matters of the highest importance.

For the reasons explained in this judgment:

In view of my conclusion that these proceedings and the applications for permission were totally without merit, I am required by law to consider whether I should make a civil restraint order pursuant to Practice Direction 3C. Upon handing down this judgment, I shall give appropriate case management directions for the determination of that issue.