Commerzbank AG v Damilare Ajao

This matter comes before me on the substantive application by the Claimant Commerzbank against the Defendant, Mr Damilare Ajao for committal for contempt of court. However, at the start of the proceedings, I have been asked to rule on a matter of admissibility.

The background to this matter is as follows. The Defendant, who is a black British National of African origin commenced employment with the Claimant on the 1st of May 2019 in the position of KYC (Know Your Client) Analyst with a corporate title of Assistant Vice President.

His six-month probationary period expired on the 1st of November 2019. However, on the 21st of November 2019, his employment was terminated due, it is said, to a loss of trust and confidence relating to his conduct and behaviour. Soon after the termination of his employment, the Defendant issued two claims in the Employment Tribunal.

The first, issued on the 31st of December 2019 was against the Claimant as first respondent and four further named respondents. In those proceedings, he alleged racial and sex discrimination, sexual harassment/assault, victimisation, wrongful dismissal, bullying and harassment and breach of contract.

The second set of proceedings issued on the 21st of January 2020 was against the same respondents as in the first proceedings, but adding two additional respondents: a lady known as Q and a 7th named respondent.

In those proceedings, the Defendant sought compensation, alleging discrimination on the grounds of religion or belief, sex and race victimisation and sexual and racial harassment, together with various other claims. The two sets of proceedings were consolidated on the 18th of May 2020.

In the course of those proceedings, various interim orders were made, including the dismissal of claims for unlawful deduction from wages, wrongful dismissal and breach of contract, the striking out of the claims for direct religious discrimination and for failure to provide an itemised pay slip. In addition, the action against the 7th named respondent was dismissed and an anonymity order was granted in relation to the 6th respondent Q and her husband.

The substantive hearing before the Employment Tribunal came before Employment Judge Snelson on the 19th of October 2021 and lasted 9 days. All of the Defendant’s claims were dismissed in a judgment entered on the register on the 14th of February 2022. The Claimant made an application for a costs order against the Defendant and on the 5th of July 2022, the Defendant was ordered to make a contribution to the Claimant’s costs in the sum of £20,000.

The claim form in these Part 8 proceedings was issued on the 8th of March 2023. In them, the following allegations are made:

The detailed allegations of contempt were set out in an Affidavit of Mr Philip Ross Cameron, the Claimant’s solicitor, dated the 2nd of March 2023, made in support of the application for permission to bring these proceedings. In that affidavit, Mr Cameron set out some 31 detailed allegations of contempt, which were reduced to a table.

Various interlocutory orders were made in the course of these proceedings, including their transfer from the administrative court to the King's Bench Division, and eventually the application for permission came before Mrs Justice Eady on the 6th of November 2024. She made an order permitting the Claimant to proceed with these proceedings for contempt in relation to the following grounds emerging from paragraph 32 of Mr Cameron's affidavit:

Mrs Justice Eady gave directions for the hearing of the substantive applications. In the course of the proceedings before Mrs Justice Eady submissions were made, of which I have a transcript, which on the part of the Defendant, by Miss Fiona Horlick, King's Counsel (who also represents the Defendant today) were as follows. She sad (referring to her written submissions):

“I then at paragraph 43 go on to say this: a number of the allegations/grounds, in fact probably almost all of them, are based on the Employment Tribunal judgment. We all know that in effect a judgment is, and I do not wish to sound like I am demeaning judgments at all, I am not, but from an evidential point of view they are in effect a statement of opinion based upon the assessment of evidence which is heard by the person who hears it, and for that reason, of course, they are not admissible and they would not be admissible in the actual substantive contempt hearing if that happened at all. They obviously use a different standard of proof. That is not from the respondent’s point of view a magic bullet, but it is an important consideration. But perhaps more importantly, they cannot be admitted in evidence at any substantive hearing and my learned friend has not sought to dispute that and nor I think would it now be possible.

So the upshot of that is they are relying upon that judgment knowing, of course, that they would not be able to do so in a substantive hearing and evidence would need to be called on each and every issue and proved to the criminal standard, and we make again the point that again this was a hearing which was really based on credibility not on incontrovertible documentary evidence or expert evidence, or any admission by the respondent of having been untruthful. It is not one of those fundamental dishonesty cases, or something where a claimant in a personal injury case is shown to be down the gym or running a marathon. It very much depends on people’s recollection from a long time ago and their view and their perception, and one cannot not take that into account.

The respondent’s view and his perception of what happened in his recollection has clearly got to be affected by the facts of what happened, and I stress again, someone who had been employed for a period of months with this global bank, had got through probation and then very shortly after that had just been dismissed without any indication at all that this was going to happen. He had not been put through a warning process, a disciplinary process, any kind of process which perhaps would, if there were complaints about his behaviour, have allowed him to ameliorate that, was literally, as the sole provider for his young family, dismissed and frogmarched out of the building. That cannot, on anybody’s view, have failed to affect his perception of what happened. And really what the claimants are trying to do is they are attempting to establish a strong prima facie case based on a judgment, knowing that it will be inadmissible in subsequent proceedings, and in our submission that militates against the granting of permission, particularly when you have grounds of such tenuousness”.

In response, Mr. Louis Browne, KC, who again represents the Claimant today, is recorded as stating as follows:

“So far as the judgment is concerned, of course we recognise that the judgment would not be admissible on its face at the hearing of any committal application, but that matters not. What matters at this stage is that we are entitled respectfully to rely upon it in support of our application for contempt proceedings to be brought, just as was done in Patel v Patel and just as is done in many cases where permission is sought from the High Court to bring committal proceedings. If the matter proceeds we will adduce evidence on each ground in respect of which permission is granted to prove our case to the requisite standard”.

Thus, it is said on the part of the Defendant that there was a concession before Mrs Justice Eady that the judgments of the Employment Tribunal would not be admissible as evidence in these substantive proceedings. I am told, because I have not seen her judgment, that, in her judgment, Mrs Justice Eady reflected those submissions, accepting that the bank could rely on the Employment Tribunal Judgments at the permission hearing, but accepting that they would not and could not be relied on for the purposes of the substantive hearing. Thus, the note of her judgment taken by the Defendant’s solicitors include the following quote: “common ground that should the Claimants application be allowed the Employment Tribunal decisions will not be admissible. However, on this hearing, when establishing a prima facie case, I can have regard to the findings of the Employment Tribunal.”

It is the admissibility of the Employment Tribunal judgments which is the preliminary issue for decision now. Thus, at the start of these substantive proceedings, Mr. Browne KC seeks permission to rely on the findings of the Employment Tribunal. He does not, in fact, accept that in so applying he is reneging on what was conceded before Mrs Justice Eady, because he submits that where he said: “we recognise that the judgment would not be admissible on its face at the hearing of any committal application”, what he was trying to say was that the judgment would not be admissible on its own. However, as it seems to me, the words “on its face” are not the equivalent of “on its own”, and in any event it appears to have been taken by those representing the Defendant, and in turn by Mrs Justice Eady, as being a concession that the Employment Tribunal Judgments would not be admissible in these proceedings.

Be that as it may, Mr. Browne submits that the judgments are in fact admissible as a matter of law and therefore, irrespective of what may or may not have been said or conceded before Mrs Justice Eady, they are in fact admissible and I should look at them.

In relation to the legal position, Mr. Browne has drawn to my attention a number of authorities, starting with Hollington v F Hewthorn & Co Ltd [1943] 1 KB 587, a decision of the Court of Appeal. That case concerned a collision between two motor cars, in which the Plaintiff alleged negligence on the part of the Defendant driver. In those proceedings, the Plaintiffs sought to adduce evidence, firstly of the Defendant driver's conviction of careless driving, contrary to the then extant provision, s12(1) of the Road Traffic Act 1930, and secondly, a statement made to a police constable by the driver of the plaintiff’s car after the collision and after the constable had warned him that the question of prosecuting him for reckless, dangerous or careless driving would be considered. The plaintiff needed to rely on that evidence because, unfortunately, the driver had since died and therefore no direct evidence from him was available. The Court of Appeal held that neither of the two pieces of evidence upon which the Claimant sought to rely was admissible and the proceedings were dismissed.

Mr. Browne relies in particular upon a passage from the judgment of Lord Justice Goddard, as he then was, at page 595 of the report, where he said this:

Mr. Browne submits that the case of Hollington v Hewthorn is authority for three points:

Next, Mr. Browne relies upon a decision of Mrs Justice Cockerill in the case of Super Max Offshore Holdings v. Rakesh Malhotra [2018] EWHC 2979 (Comm). Those were contempt of court proceedings arising from a decision of Mr Justice Popplewell in December 2017, followed by a decision in March 2018, where he directed far reaching final relief against the Defendant in commercial proceedings. The application for the Defendant’s committal in those proceedings related to what were said to be breaches of the Court’s interim orders, which had become apparent during the trial, and on account of what were said to be attempts by the Defendant in that case to harass, abuse and otherwise interfere with witnesses both before and after the trial in October 2017. One of the committal applications alleged the making of witness statements containing statements, said to have been, to the Defendant’s knowledge, false and likely to interfere with the course of justice. Another of the applications related to allegations of interference with the due administration of justice in seeking to deter or obstruct or victimise certain witnesses in relation to the giving of evidence. Those particular allegations are said to be akin to the allegations made in this case. In the course of the proceedings, the Defendant objected to various portions of the evidence:

Cockerill J said this:

“11.

The argument advanced depends on taking a few narrow points, for example, as to the non-compellability of the defendant in terms of oral evidence on the committal application under CPR. 81.28(3), and the inadmissibility of civil judgments as probative in criminal trials (see R v. D [1996] QB 283). Unwinding those narrow points out, the result is a situation which one might practically say is a “through-the- looking-glass” situation, is potentially reached in which committal applications would have to take place shorn of all prior evidence originating from one party and be conducted on the most limited basis with the judge unable to look at even, say, the judgment, which is integrally involved in the committal application…

15.

The starting point for the defendant’s submissions is, it seems to me, broadly sound. The defendant says that the general position is that a defendant to a criminal charge is entitled to remain silent, he cannot be compelled to give evidence. It is also true of committal proceedings, given their quasi criminal nature, and, similarly, he cannot be required to give evidence or provide disclosure, including by answering interrogatories.

16.

However, this submission and the law that it states is all geared to what happens after a defendant is in peril of committal. On my reading of the rules and the authorities, it tells us nothing about the position where committal happens, for example, after documents are disclosed or after a defendant gives evidence. In this regard, the authorities and the rules tell the same story and it is a very different story to the one that Mr Marshall urges upon me.”

Then having referred to CPR, 31.22 and the authority of Dadourian Group International and Another v. Simms, Cockerill J continued:

“18.

One sees a similar thing in relation to the cases dealing with the use of prior judgments, a point to which I shall return in relation to the question of prior judgments itself. I was referred to JSC BTA Bank v. Mukhtar Ablyazov [2016] EWHC 3081 (Comm) which stated that there is no absolute rule of inadmissibility, and indicates that the rule, despite statements in cases such as R v. D, is really much more nuanced. The court in that case, in giving “considerable weight” to previous findings as to ownership of certain companies held:

“There can be no objection to reliance on the evidence referred to in earlier judgments, such as the contents of documents or the evidence of witnesses….. Nor can there be objection in my view to a second category of case, where the court takes into account, in a like manner as it would any other factual evidence, statements of fact in earlier judgments, giving them such weight as it thinks fit. …

The rule in Hollington v F Hewthorn & Co turns on fairness. That accords with the Overriding Objective of the CPR of dealing with cases justly and at proportionate cost….”

19.

This indicates clearly that the court can consider the findings of an earlier judge and look at statements and facts and give such weight as is thought fit to those statements. The court there held that the court is entitled to have regard to matters of primary fact recorded in the judgment and, if those matters of fact justify the conclusions reached in the judgment, the court is entitled to reach the same conclusion. And, in reaching that conclusion, the court referred back to the judgment of Eder J in the Okritie v Gersamia [2015] EWHC 821 case, in particular at paragraph 23…

20.

This approach is also, in my judgment, inherent in the reasoning in the passages alluded to in Otkritie and Summers v Fairclough Homes Ltd [2012] 1 WLR 2004 per Lord Clarke at [59], that one may in a general way expect a trial judge to hear contempt applications in relation to those proceedings and positively indicating the desirability of a judge familiar with the case hearing subsequent applications…

21.

If this is true for judgments and the original judge can, as a matter of practice, hear the committal application, even though he heard the main trial, it makes no sense to exclude the documentary record, whether that means disclosure of transcripts or skeletons, and that dovetails with the authorities which I have already indicated.

22 There is nothing, it seems to me, in the authorities which were cited by the defendant that really engages with this. The authorities which the defendant cites are looking at a different point, the protection of a party once a committal application is underway… In essence, the law allows a party who is subject to committal proceedings to protect himself in various ways going forward, so he cannot be compelled to give oral evidence in those proceedings (see CPR 81.28(3)). He cannot be compelled to provide interrogatories or comment. It would seem, although no specific authority was given for this, also to cover disclosure in committal proceedings.

23.

But none of this affects the matters which are already in play by the time the committal application comes to be made. In my judgment, a party cannot retrospectively invoke that protection. That is also reflected in the summary of the law given by the claimant in its skeleton; in particular, there is nothing in the defendant’s right to silence that renders transcripts, skeletons, judgments, witness statements and any other documents from a liability trial inadmissible on a later committal application. The right of silence or to avoid self- incrimination is to avoid being compelled to self- incriminate. It does not restrict the use of information provided voluntarily at an earlier stage, nor is a litigant compelled to provide information for these purposes, simply because, if he fails to do so, he may incur civil liability.”

Although in that judgment, Cockerill J included judgments in her list of the matters previously in the public domain, along with transcripts, skeletons, witness statements and other documents; in my judgment, she was not applying her mind to the issue which arises on this application, namely whether the opinions of previous judges in different proceedings, albeit with the same parties, are admissible, in relation to the very issues which the Court trying the contempt application is to decide. What Cockerill J was saying was that once various matters are in the open, once (as I put it to Mr. Browne) the cat is out of the bag, then those matters remain open and, if relevant, admissible, and the party cannot rely on its right of silence or its right against self-incrimination retrospectively to put the cap back in the bag and restrict the use of those documents.

Furthermore, I consider it significant that Cockerill J referred to facts stated in a Judgment and not opinions. In my judgment that authority is confined to documents, evidence and facts stated in judgments, but was not intended to and does not imply that opinions stated in previous judgments are admissible as evidence in the contempt proceedings.

Finally, Mr. Browne referred to the decision of Mr Justice Peel in Bailey v Bailey (Committal) (Rev1) [2022] EWFC 5. Peel J had before him two committal applications brought by the applicant, Mrs Bailey against the respondent, Mr Bailey, for alleged breaches of:

On behalf of the husband, it was submitted that the substantive judgment of Judge Gibbons was not admissible. It was argued that it fell foul of the rule in Hollington v Hewthorn. Having referred to the various authorities, Peel J found that the submission on behalf of the husband, that the judgment in the Financial Remedy Proceedings was not admissible in the subsequent committal proceedings, not to be well founded, saying this:

“17i) It is, it has to be said, a startling notion that the very judgment which gives rise to the order from which springs a committal application cannot be admitted in evidence. How else is a court to make sense of the order which has been made?

ii)

Logically, on H’s case, no judgment in a final hearing conducted according to the civil standard of proof can ever be referred to within subsequent committal proceedings. Thus, in a family context, a judge hearing a contempt application would not be permitted to take account of, or refer to, or in any way rely upon, findings made at a substantive trial of financial remedy, or public law, or private law proceedings, or indeed any other part of the family jurisdiction. Further, H’s submission that “findings of fact by earlier tribunals are inadmissible in subsequent civil proceedings because they constitute opinion evidence” means that it would never be open to the court to be referred to the prior judgment upon a subsequent enforcement application of whatever nature. Moreover, following the logic through, a substantive judgment including findings as to, for example, periodical payments, could not be before the court upon a variation application under s31 of the Matrimonial Causes Act 1973 (as amended). All of this seems to me to be extremely doubtful.

iii)

Counsel for H were not able to point me to a single authority where a substantive judgment was ruled inadmissible in a subsequent committal application made in respect of the order springing from that very same judgment, whether in family proceedings or elsewhere in the civil jurisdiction. My personal experience (and I believe reflected in published judgments on committal in the Family Court or Family Division) is entirely to the contrary. The closest they came was brief obiter dicta by Sir James Munby P (who appears to have received no submissions by counsel on the point) in Re L (A child) [2016] EWCA Civ 173…

iv)

The rule can be encapsulated in one sentence. Goddard LJ said at 596-597 of Hollington v Hewthornthat “A judgment obtained by A against B ought not to be evidence against C”. It concerns different parties to different proceedings. As HHJ Matthews said in Crypto (supra) it concerns admissibility “between different parties”. And Phipson(supra) describes the rule as applicable to issues between strangers, or between a party and a stranger [thus echoing or perhaps, being echoed by Mr Browne's submissions to me].

v)

So far as I can tell, and consistent with these propositions, the rule in Hollington v Hewthorn has been applied to exclude previous judgments only in cases of separate, distinct proceedings and/or involving different parties. Even then, as both Hoyle v Rogers and JSC BTA Bank v Ablyazov demonstrate, the earlier decision may be admitted (or, perhaps more accurately, not excluded) if fairness so requires. The decision inHollington v Hewthorn itself prevented a criminal conviction for careless driving being admitted in civil proceedings brought by those injured in the collision. These were two, separate sets of proceedings, with

different parties since.

vi)

By contrast, the committal applications before me are part of the same set of proceedings, namely enforcement referable to the financial remedy claims, and they are between the same parties.

vii)

I conclude that Hollington v Hewthornis not authority for the proposition that the judgment in earlier proceedings between the same parties cannot be admitted in evidence for the purpose of a contempt application arising out of the earlier judgment, and order made thereon.

viii)

The foundation of the rule is the fairness of the subsequent trial.

ix)

Evidence presented in the earlier proceedings, and the contents of the judgment from the earlier proceedings, are, in my judgment, admissible in subsequent committal proceedings flowing from the earlier proceedings, and between the same parties.

x)

The weight to be attached to the earlier proceedings, and judgment, will be a matter for the judge conducting the committal proceedings.

xi)

None of the above derogates from long established principle that the applicant must prove the alleged contempt of court to the criminal standard.”

Whilst much of what Peel J said in that statement supports Mr Browne's submissions in this case, I consider that an important point of distinction emerges from the fact that the committal applications were part of the same set of proceedings. Had that not been important, Peel J would not have needed to refer to the fact that the applications were part of the same set of proceedings and could, and in my judgment would, have confined himself to the fact that the proceedings were between the same parties.

As Ms Horlick KC submitted to me, proceedings for criminal contempt are very different in that regard to proceedings for civil contempt arising from a failure to obey an order. Where in civil contempt proceedings, there has been failure to obey an order, it is obviously appropriate for the Court to know the full context in which the order was made, and that may well include being aware of the terms of a judgment leading to the making of the order.

However, criminal contempt proceedings are, in my judgment, separate and the admissibility of a judgment in previous proceedings needs to be established to be admissible on grounds of relevance before it can be admitted as part of the evidence in the contempt proceedings. There is nothing automatic about this and it is necessary for the court to be shown the relevance of the previous findings to the matters before the Court in the contempt proceedings.

For the Defendant, Ms Horlick KC referred to the heightened protections afforded to Defendants in proceedings such as these proceedings, given the jeopardy in which the Defendant finds himself, including the possibility of a prison sentence. She emphasises that the question of fairness stands out as the governing principle. She refers to the nature of proceedings in the Employment Tribunal, where the rules of evidence are more relaxed and less strict than in criminal courts and the fact that in the Employment Tribunal proceedings in this case, evidence was heard and the tribunal relied upon witnesses, who are not in fact, not to be called in these proceedings. Furthermore, witness statements were read which will not be admissible in these proceedings. Thus, she refers to the wider variety of evidence which formed the basis of the decision in the Employment Tribunal than the evidence in this court. Also, and importantly, she referred to the different standard of proof in the Employment Tribunal. In this Court, the standard of proof is the criminal standard.

Furthermore, Ms Horlick, in pointing to fairness, submitted that the way in which the matter was argued before Mrs Justice Eady is significant, and in particular, that there was indeed a concession before Mrs Justice Eady that the decisions in the Employment Tribunal would not be admissible. She argues that this may have formed an important part of the decision of Mrs Justice Eady to allow the allegations which she did allow to proceed, because she may have been led to believe that there was this safety net for the Defendant; namely that the Defendant would not face, in defending himself against the substantive allegations, the prejudicial views of the Employment Tribunal. She submits that it may be that had that safety net not been conceded, the decision of Mrs Justice Eady may have been different.

The fundamental submission of Ms Horlick KC was that when it comes down to it, the findings of the Employment Tribunal are no more than opinions based on the evidence heard in that court or tribunal, and on the tribunal's view of the credibility of the witnesses. These are the very matters which this court is obliged to make its own decision and findings and the opinions of the. Employment Tribunal Judges are no more admissible than the opinions of anyone else.

It is furthermore relevant to record that, in the course of his submissions, I asked Mr. Browne to explain to me why he wanted me to read the judgment in the court below and Mr Browne's response was disarmingly direct, namely that, as he put it, he had seldom, or never, in his experience, read such a damning judgment as that of the Defendant by the Employment Tribunal in its judgment. However, as I responded to Mr. Browne and as I state now, that seems to me the very best argument, for not admitting that judgment in evidence and for refusing the application to admit that judgment. The reason is this and I return to what Ms Horlick said in her submissions: the approach of this Court must be one of fairness, and that includes not just justice being done, but justice being seen to be done. However capable I may be of dismissing from my mind prejudicial views or opinions by the Court below or in the Employment Tribunal, if in the event I find the allegations of contempt proved in this case, the Defendant will inevitably wonder to what extent I was influenced by what I have read in relation to the findings of the Employment Tribunal. And however experienced I may be, and however adept I may be at putting out of my mind prejudicial matters, as Mr. Browne urged upon me, I'm conscious of the need for justice not only to be done, but to be seen to be done.

Furthermore, the judgment of the Employment Tribunal is, as Ms Horlick submitted in the end, no more than opinion evidence. Just as, save in the well-known exceptions such as experts, opinion evidence is inadmissible in criminal proceedings, so is the opinion evidence of the Employment Tribunal which I put at no higher level than other opinion evidence. The opinions of others are not relevant because on an application of this nature, it is my opinion or judgment which is sought and not that of others, and just as juries are directed that it is their view of the facts and only their view of the facts which matters, so I direct myself in relation to these proceedings.

Furthermore, and in any event, the judgment or opinion of the Employment Tribunal is, in a sense, flawed because their views and opinions are based on evidence which is not before this court or evidence which has not been subjected to the same strictures which evidence in the criminal courts and before me will be subjected to. Thus, it is not relevant for me to take into account the views of another court based on potentially different evidence and reached applying a different standard of proof.

The parties have, in common with each other, submitted that the applicable criteria to my decision is one of fairness and, as the proceedings have progressed this morning, I have become more and more convinced that fairness, whether as a matter of admissibility, or as a matter of my discretion, demands that I should not look at the decision of the Employment tribunal, but decide this case purely and simply on the admissible evidence presented to me.