The All England Lawn Tennis Club (Championships) Limited & Anor v Oliver Hardman

A person is guilty of contempt by breach of a court order only if all the following factors are proved to the criminal standard:

The test under the first factor is one of “notice” and not “actual knowledge” (although actual knowledge or lack of actual knowledge may go to sanction). Further the act constituting the breach must be deliberate rather than merely inadvertent, but an intention to commit a breach is not necessary, although intention or lack of intention to flout the court order is relevant to penalty. It is not necessary for the defendant to know that what was being done was a breach of the order.

The procedural requirements set out at CPR 81.4(2) have been complied with.

In this case there are two distinct allegations of contempt; namely that the Defendant breached each of paragraph 3(c) and paragraph 4 of the Order, by failing to comply with their terms.

By his witness statement the Defendant accepts that he has acted in breach of the Order in two respects. First he failed to file or serve a witness statement as required by the terms of paragraph 3 (c) (i) (ii) and (iii) of the Order. Secondly on 14 July 2023 he was present within the area covered by the vicinity ban in paragraph 4 of the Order.

As regards the nature of the obligation under paragraph 3(c), the issue is whether after the expiry of the 24 hour period specified in paragraph 3(c), the Defendant was under a continuing obligation to provide the information in question and/or he was in continuing breach; or whether failure to comply within the 24 hour period constituted a one-off breach amounting to a single act of contempt.

In this regard I have been referred in particular to the decision of Nugee LJ in Kea Investments Ltd v Eric Watson [2020] EWHC 2599 (Ch) at §§71 and 72. (I have also considered McKay v All England Lawn Tennis Club [2020] EWCA Civ 695 at §§21, 25, 79 and 80 and 119.)

Mandatory injunctions in general require a specified time in which to comply with the order and are to be constructed strictly, given the potentially penal consequences of non-compliance. Paragraph 3(c) cannot be construed in its terms as imposing a continuing obligation beyond the 24 hour time limit.

In my judgment, whilst the point is not entirely free from doubt, I accept the detailed analysis of Nugee LJ in the Kea Investment case. Strictly, therefore, where the Defendant was in breach of paragraph 3(c) by failing to comply with its terms by 123pm on 14 July, he was thereby in contempt of court. However, thereafter there was no continuing obligation to provide the information, and his continued failure to comply with the mandatory order after that deadline did not amount to a continuing contempt.

However, since that deadline, the Defendant has to date chosen not to purge that act of contempt by providing the information required. I address below whether the distinction between a continuing breach of a continuing obligation on the one hand, and a failure to purge the one-off act of contempt, on the other, makes any significant relevant difference to the outcome in this case.

By his counsel, at the hearing on 21 February 2024 the Defendant admitted that he is in contempt of court (and as recorded in the February Order).

In these circumstances, I am satisfied to the criminal standard that:

In those circumstances I find that the Defendant is guilty of contempt of court by breach of the Order.

I turn then to consider the issue of sentence.

There are a substantial number of authorities relating to the relevant principles to be applied when considering sentence for contempt of court. They were recently summarised by Leach J in Solicitors Regulation Authority v Khan [2022] EWHC 45 (Ch) at §§52 to 54. I also take account of my own judgment in the case of Hassan Khan v Al Rawas [2021] EWHC 3229 (QB) at §§19 to 30 where I identified the relevant case law. See also Breen v Esso Petroleum Company Limited [2022] EWCA Civ 1405 at §6.

From these cases (and the authorities there cited) I derive the following principles relevant to the present case.

Additionally, where the contemnor accepts the breach he or she is, in the normal course, entitled to a reduction in the sanction on account of such an admission: see CPR 81.4(2)(q). Whether or not the amount of reduction should be calibrated along the lines of the approach in the Guidelines on Reduction in Sentence for a Guilty Plea in not entirely clear on the authorities: see National Highways Ltd v. Springorum & ors [2022] EWHC 205 (QB) at §§35 and 36 and Breen v Esso, supra at §6.

Whilst ultimately neutral, Mr Rowntree draws attention to the following.

The Defendant was at all times fully aware that his actions were unlawful. Yet he carried on regardless. The Defendant’s conduct was part of a concerted attempt by a large number of individuals to flout, entirely deliberately, the proper measures put in place by the Claimants to protect the provision of tickets to the Championships. As regards prejudice to the Claimants, the provision of information about others is an essential part of their legitimate policy of eradicating unlawful ticket sales.

The Defendant’s refusal to purge his contempt by providing the information required shows that, first, he knows the information that the Court has required him to provide. Secondly his attempt last year to provide information was little more than a half-hearted attempt to fob off both the Court and the Claimants. Moreover his agreement at the February hearing to a further order to provide the information indicates that there is such further information he can provide.

As regards knowledge of the Order, the Defendant has provided no evidence to support his assertion that he did not see it on 12 and 13 July nor before 15 July.

Mr Rowntree refers the Court to two previous cases involving the failure by a ticket tout to provide information required by orders very similar to paragraph 3(c) of the Order, and in which immediate custodial sentences of between 21 and 26 weeks were imposed: see Chelsea FC Ltd v Corrigan [2019] EWHC 2659 (QB) upheld [2019] Costs LR 2095; and McKay v AELTC supra. He also refers to Chelsea FC Ltd v Nichols [2020] EWHC 454 (QB) and 827 (QB), another ticket tout case, where immediate imprisonment of 26 weeks was imposed.

There is very limited mitigation and no apology or remorse has been expressed. There is no suggestion that a prison sentence would cause either him or his partner any difficulties, despite their medical conditions. The Defendant’s assertion of contrition in his witness statement is nothing more than “crocodile tears” in the light of his continued and wilful refusal to comply with the Order in circumstances where he is plainly able to do so.

As regards Mr Livingston’s statement, the Claimants do not accept that the exhibited messages are complete or genuine and in any event it was clear from his own February witness statement that the Defendant knew that if he provided the information required by the Order, people around him might react in that way. The press reports have not substantially altered that position.

The custody threshold has been passed. The Defendant stands in the face of the Court, continuing to refuse to purge his contempt by providing the information initially required by paragraph 3(c) of the Order. This is both knowing and contumacious. In the circumstances the only appropriate course of action is an immediate custodial sentence.

First, the Defendant is a registered carer for his partner who suffers from multiple sclerosis and he himself suffers from an underlying liver condition that requires regular medical appointments.

Secondly, the Defendant’s breaches of the Order have not given rise to serious prejudice to the Claimants.

Thirdly, the breach of the vicinity ban was perpetrated without actual knowledge of the Order. He first became aware of the Order when personally served on 14 July 2023 at which point he had already breached that ban. This is supported by the fact that thereafter he complied with the vicinity ban. His culpability for this breach is limited. Moreover as regards paragraph 3(c), there was no continuing breach of the Order. He has purged his contempt to an extent by the information he provided in July 2023.

Fourthly as regards co-operation, the Defendant has complied with the prohibitory aspect of the Order. As regards the mandatory element, he has cooperated to an extent in the email dated 24 July 2023. At the 21 February hearing, he admitted the contempt and it was acknowledged that breach of the Order constitutes harm to the administration of justice. In his own witness statement, the Defendant has apologised and acknowledged the seriousness of the Order. The authenticity of this appears from his willingness at the previous hearing to purge his contempt. The Defendant takes responsibility for his actions and omissions.

Fifthly, the press reporting of the Defendant as a “supergrass” and a “turncoat” was reckless, sensationalist and inaccurate. As a matter of fact, those terms were not mentioned at the 21 February hearing. Accordingly in the light of events since the February hearing, these proceedings have already met the punitive, deterrent and coercive objectives of a sentence for contempt. As regards the coercive element, the proceedings have compelled the Defendant to express a genuine willingness to purge his contempt. As regards deterrence, the risk of a prison sentence has been widely disseminated by the press reports. Moreover the Defendant has been punished by being characterised in the national press as a supergrass and being vilified and marginalised “by the community in which he has previously traded tickets”. His characterisation as a supergrass in the national press had caused him disproportionate harm, given his former willingness to purge his contempt. Whilst in February he indicated a genuine willingness to purge his contempt, he has not now provided a witness statement due to third party pressure arising from the sensationalist characterisation of him in the national press. Mr Saunders submitted that it was this “reckless” press coverage which had caused the Defendant to be unwilling now to purge his contempt.

Mr Saunders submits that in all the circumstances the appropriate sentence is a fine. Alternatively if the custody threshold is passed then, the order for committal should be suspended in view of the Defendant’s mitigation. In this regard the Court should consider the case of R v Ali [2023] EWCA Crim 232 when considering custodial sentences in the context of the current very high prison population.

I address the two distinct acts of contempt in turn.

As regards the vicinity ban, the position as to whether the Defendant had actual knowledge earlier than 1007am on 14 July 2024 is not entirely clear. First, there is authority that the burden is on the Defendant to prove on the balance of probabilities that he did not have knowledge (see NHL v Kirin [2023] EWHC 3000 (KB) at §§11(ii) and 31-38). However I did not hear argument on this point. Secondly the Defendant’s evidence was not tested in cross-examination. Nevertheless I am prepared to give the Defendant the benefit of the doubt and to accept his witness statement evidence (see paragraph 18 above) and find, on balance, that he did not have actual knowledge of the ban before that time. Moreover, and in any event, this was a continuing obligation, which the Defendant did not breach again. On this basis, his admitted contempt arising from earlier notice of the ban is of low culpability and does not warrant a separate penalty.

I turn to the breach of paragraph 3(c) of the Order and the failure to provide, by 123pm on 14 July, the required information, namely full details of his purchasing and sale of NTWTs for the 2023 Championships. As explained in paragraph 47 above, this was a once and for all breach and thus a one-off contempt.

First, a breach of such a court order is serious and usually warrants an immediate custodial sentence. In this case, the Defendant’s culpability is high. He deliberately and intentionally refused to provide the information and to obey an order of the Court. His intent is confirmed by his subsequent conduct in refusing to purge his contempt and in his further failure to comply with the Court’s further order of 21 February 2024 (see paragraph 32 above). As such, the harm is principally to the administration of justice. In my judgment, in this case, the fact that this was not a continuing breach of the order makes little difference to the seriousness of the contempt.

As regards prejudice to the Claimants, in principle, the information of the type sought supports the Claimants’ overall policy of preventing unauthorised ticket sales. However, as far as this case is concerned, there is little evidence before me of the practical use of such information in tracking down or preventing such sales. I note that in McKay the Court of Appeal (at §108) described a similar failure to provide such information as a contempt of a “very limited nature”. In any event, I regard prejudice to a claimant as a relatively secondary consideration when set against the importance of upholding court orders and the harm to the administration of justice.

The Defendant has co-operated to some extent. He admitted the breaches and the contempt, at the first opportunity following legal advice and to that extent is entitled to a reduction in his sentence. He has also apologised in his witness statement. However, that has to be seen in the context of his continuing refusal to provide the information, by way of purging his contempt and his refusal to comply with the February Order.

In these circumstances, in principle, the contempt passes the custody threshold. I do not consider that a fine is a sufficient sanction (see Corrigan at §18). I turn therefore to consider whether there are mitigating factors which would lead me to impose a suspended sentence of imprisonment (other than a sentence suspended for a short time to allow for purging of the contempt).

As regard the issue of pressure, I accept, first, that, in principle threats of violence amounting to duress, or pressure more generally, can provide some mitigation when the Court consider the appropriate sanction for contempt: see paragraph 54(10)(b) above and Coca-Cola v Gilbey [1996] FSR 23 at 29 and at 31-32.

Secondly, however, in this case, the evidence of such pressure since the February hearing is not strong. There is no direct evidence of such pressure; rather it is left implicit in the evidence of the Defendant’s solicitor and in the Defendant’s own earlier statement. I am not satisfied on the facts that the evidence produced is sufficient to establish a threat of direct violence towards the Defendant or his partner. As I have pointed out, the Defendant himself has chosen not to give evidence as to the nature of any threats or as to the reasons for his change of heart since the February hearing in not being prepared to provide the information, and despite the terms of the February Order which required him to do so. Moreover the terms of the Defendant’s own responses to the online abuse do not suggest that he would easily bow to any pressure.

Thirdly, whilst Mr Saunders complains (with some justification) about some of the language used in the press reports of the 21 February hearing, I accept Mr Rowntree’s submission that little has changed as a result of those press reports. The Defendant has always known, and indeed asserted, that he would risk the opprobrium of others if he provided the information covered by paragraph 3(c). There was always the prospect of press coverage of the proceedings. The Times and others were properly entitled to report on the 21 February hearing and, even if the particular terms of which the Defendant complains had not been used, the case would have been in the public domain by dint of that reporting. I do not accept Mr Saunders’ submission that the manner of the press coverage of the 21 February hearing has put the Defendant in any worse position. The fact of the press coverage cannot be a legitimate ground of complaint by the Defendant.

Fourthly, I reject the submission that the press coverage and the opprobrium he has received from “others in the community in which he has previously traded tickets” has met the objectives of a sanction for contempt. (Mr Saunders accepted that the ticket trading of those “others” was equally likely to be unlawful). It is antithetical to the need for compliance with orders of this Court to place reliance, by way of mitigation or excuse, on the conduct of those responsible for vilification and threats. The message cannot be that the Court will step back from imposing the sanction which it would otherwise have imposed by reason of abuse and threats from third parties; or that a person subject to a Court order can be excused from compliance by reason of such abuse and threats. The Defendant had a choice to comply with a Court order or submit to threats of consequences if he did comply.

I conclude therefore that neither the terms of the press reporting of 21 February hearing nor any abuse the Defendant may have received since then is good reason to suspend a custodial sentence.

As regards the Defendant’s personal mitigation, whilst I take account of his partner’s multiple sclerosis and his own medical condition, there is no evidence before me, and Mr Saunders has properly not suggested, that custody will have a detrimental effect on their medical conditions. No other personal mitigation is put forward.

I have also considered the approach to sentencing as set out in the Court of Appeal Criminal Division in R v Ali at §§18-22, where the current very high prison population can be an “additional factor” to support a decision to suspend a sentence of short duration. However, unlike the position in that case, in the present case there are no independent exceptional circumstances to support a suspension of the sentence.

I conclude therefore that there are no grounds for suspending the sentence for a substantial period.

For these reasons, I conclude that an immediate custodial sentence is the appropriate sanction in this case. I take a starting point of 6 months imprisonment. I reduce this to 4 months imprisonment to take account of the Defendant’s admission of the breaches and certain other limited mitigating factors. The sentence for contempt for breach of paragraph 3(c) of the order of Mr Justice Bourne is 4 months imprisonment. For the contempt for breach of paragraph 4 of that order, there is no separate penalty.

I will give however give the Defendant one final short opportunity to reconsider his position and to purge his contempt by producing a witness statement which complies with paragraph 3(c) of the Order. This means, unless such a witness statement is produced, the matter will come back to court and the sentence of imprisonment will take effect on that date.

I will now hear counsel on the appropriate terms of the order to be made, including the date for the matter to return to court, and any other matters.