Commerzbank AG v Damilare Ajao

In this matter, in which the Claimant has made an application for the committal of the Defendant for contempt of court pursuant to the provisions of CPR rule 81.4, at the close of the evidence called on behalf of the Claimant, the Defendant has made an application, before being put to any election, that the allegations and case should be dismissed, because, essentially, of two matters:

For the Defendant, Ms Horlick KC, began her submissions by asserting that the application notice here is deficient and cannot be cured and she referred me in particular to the two authorities, which are contained in her additional bundle of authorities:

By reference to Harmsworth, she submitted that that authority stressed the importance of the application notice. She submitted that a properly drafted notice would give particulars of the contempt as if the particulars are an indictment and they should enable the Defendant precisely to understand the case against him and what case he has to meet.

By reference to Kea Investments, she referred to paragraph 21 of that decision, reiterating, by reference to the previous decision of Chiltern District Council v Keane [1985] 1 WLR 619, that the contempt alleged must be contained in the application notice and it is that which must be proved. Other matters cannot substitute for a properly pleaded application notice. Examples of properly pleaded particulars of contempt are contained in an appendix to the judgement in the Kea case. She submits that here, in contradistinction, appropriate particulars are not set out in the Claim Form, which is in too broad a form, the terms are too broad and there is a lack of particularisation. She refers to the allegations as sweeping generalised statements which lack detail or particularity.

Having observed that the direction of travel was that the allegation of sexual harassment made by the Defendant in the Employment Tribunal was pure invention, she submits that the Notice is entirely deficient and does not enable the Defendant to understand the precise terms of the allegations against him and that what is contained in the affidavit of Mr Cameron cannot cure a defective Application Notice.

After Ms Horlick had developed those submissions to some extent, Mr. Browne KC for the Claimant, once it had become apparent that the initial challenge was to the form of the application for contempt, objected on the basis that the Defendant had made the same submissions to Mrs Justice Eady when application was made for permission to bring these proceedings and she had rejected those submissions. I was then provided with part of the judgement of Mrs Justice Eady dealing with that matter (Commerzbank AG v Damilare Ajao [2024] EWHC 3168 (KB)), and I note that at paragraph 30, she said:

“It is the defendant’s position that the application for committal fails to set out with sufficient particularity what breaches are alleged; that, it is contended, should be apparent from within the four corners of the notice of application itself.”

Having then referred to guidance provided by Mrs Justice Cockerill in Deutsche Bank AG v Sebastian Holdings Inc and anor [2020] EWHC 3536 (Comm),  the judgment continues:

“Ms Horlick contends that, having regard to the very different factual context of the present case, the particulars provided were inadequate to protect the rights of the defendant. Noting that consideration of the application for permission requires the application of a five-stage test ((i) strong prima facie case; (ii) not straying into the merits; (iii) public interest; (iv) proportionality; (v) the overriding objective) to each ground, it is said that the generalised and repetitive nature of the particulars provided meant that exercise could not properly be undertaken.”

From paragraphs 33 to 41, Mrs Justice Eady set out her approach to those submissions and her decision. As for her approach, she said this at paragraph 34:

“As for what is required in any application for committal, the nature of such proceedings requires particular attention to be given to the protection of the rights of the alleged contemnor…the test is whether “such a person, having regard to the background against which the committal application is launched, be in any doubt as to the substance of the breaches alleged?”…In essence, the procedural rules laid down by CPR 81 set out what is required to comply with this test; thus, by CPR 81.4 it is required (relevantly) that the application must be supported by written evidence given by affidavit or affirmation, and must include a statement of the nature of the alleged contempt (here: interference with the due administration of proceedings and knowingly making a false statement in a witness statement verified by a statement of truth), and a brief summary of the facts alleged to constitute the contempt. While it is not sufficient for the application notice to merely refer to the accompanying evidence…it need only set out a succinct summary of the claimant’s case, to be read in the light of the background known to the parties, with the detail being set out in the evidence.”

The learned Judge also referred to a dictum of Mr Justice Marcus Smith in Patel v Patel:

Mrs Justice Eady, making her decision, then said this:

“38.

Addressing first the complaints made regarding the notice of application, I am satisfied that this is not a case where the defendant can legitimately complain of the particularisation of the case against him. Allowing for the potential disadvantage arising from the fact that those who now act for him were not involved in the ET proceedings, the defendant does not come to this matter as a stranger: he is fully aware of the claims he pursued before the ET, and knows the detail and significance of the evidence he gave, and of the findings that the ET made. Against this background, I do not consider that the defendant can be in any doubt as to the substance of the contempt alleged.

39.

Moreover, the nature of the contempt (interference with the due administration of proceedings and knowingly making a false statement in a witness statement verified by a statement of truth) is clearly stated within the application notice, along with a brief summary of the facts relied on: that the defendant knowingly made false allegations of sexual harassment and discrimination against Q; that he knowingly lied in the evidence he gave to the ET and sought to bolster his claim by fabricating events, including by the manufacture of a work diary; that he repeatedly put forward assertions that were completely untrue, and advanced numerous claims which he knew had no factual basis as the alleged events on which they were premised never happened; that he was prepared to lie, and did lie, in making baseless allegations of sexual harassment, including an allegation of sexual assault against Q.

40.

The detail of the matters relied on is then set out within the affidavit evidence of Mr Cameron. While I accept that aspects of the particulars provided are repetitious, that seems to me to arise from an overabundance of caution on the part of the claimant: separating out points relating to individual meetings (for example), notwithstanding that the allegation made by the defendant as to what was said was essentially the same.”

It seems to me that in relation to the first and principal point made by Ms Horlick, two conclusions emerge:

In the present case, although I have not seen the judgement of the Employment Tribunal, I am of course aware that the applicant’s application to the Employment Tribunal failed. I do not know the basis upon which it failed, but I do know that the evidence which the applicant gave in the Employment Tribunal cannot have been accepted. The fact is that I, and to a certain extent, for her part, Ms Horlick (who did not represent the Defendant in the Employment Tribunal) come to this matter relatively fresh. But as Mrs Justice Eady said, it is the Defendant who, importantly, needs to know the nature of the allegations which are made, and I have no doubt at all that the Defendant is well aware of what is being alleged against him, why it is being alleged against him and what case he has to meet.

I turn then to the individual allegations of contempt, set out in the table that was originally contained within Mr Cameron's affidavit, and which has been reproduced in the skeleton arguments.

Allegations 2-6 essentially stem from the evidence of a witness from whom I heard yesterday, Mrs Q, to the effect that the Defendant’s allegations of sexual harassment had no foundation whatever in fact and were an invention and a fiction.

For the Defendant, Ms Horlick has submitted that if I consider Mrs Q's evidence as a whole, I should conclude that it fails to meet the necessary criminal threshold because, in the final analysis, there was a large measure of agreement as to the primary facts, and that the events with which these allegations are concerned were subject to differences of interpretation and recollection, and that is insufficient to find allegations of invention.

Both my recollection and interpretation of Mrs Q's evidence does not support that submission by Ms Horlick. Although I retain an open mind about the accuracy and veracity of Mrs Q's evidence because I have not yet heard all the evidence in this case, it was clear to me from her evidence that she was saying that there was no room for misinterpretation and that although the context of her relationship with the Defendant was one of friendliness, sometimes even excessive friendliness, he could not possibly have misinterpreted anything she said or did to have amounted to sexual harassment.

Furthermore, she denied that certain things which he said had either been done or said had in fact been done or said. Thus, she had never referred to his nipples, she had never said that she fancied him, she had never remarked on his skin or made any kind of personal remark which could have been misinterpreted beyond friendly exchanges about matters of fashion. She asserted strongly, in fact vehemently, that nothing that she did, could have been interpreted as an attempt by her to touch his crotch, that it was wholly untrue that he had tried to swat her hand away and that when she had commented on his Gucci belt, it had been from a sufficient distance that there could have been no room for misinterpretation.

Nothing has been submitted to me to suggest that I should reject that evidence at this stage, and if I accept that evidence, I take the view that it wholly supports the allegations that are made of Contempt, namely that Defendant manufactured a bogus claim of sexual harassment against Mrs Q for the purposes of the Employment Tribunal. In my judgement, in relation to allegations 2,3,4,5 & 6, there is clearly a case to go forward.

Turning to allegations 29 & 30, these relate to the work diary which the Defendant produced before the Employment Tribunal to support his evidence. The important point emerging from the submissions that were made to me on the Claimant’s behalf by Mr. Browne, is that these allegations are properly understood when one takes into account the matrix of evidence, comprising the diary itself, emails at the time, and the evidence of Mr Gary Booth (if I accept it), and the Claimant’s case rests upon inferences or conclusions to be drawn once those matters are put together. A particular aspect is that in the Defendant’s note in the work diary of a meeting which he alleged he had with his line manager, Ms Yogita Mehta, he referred to advice given by Ms Anne Marie Burgess. But when one compares that to the Witness statement of the Defendant and the evidence which he gave to the Employment Tribunal, it would appear that he was saying that his telephone call to Ms Burgess happened about an hour after his meeting with Ms Mehta, leading to the conclusion, that the Claimant says, that his note of his meeting with. Ms Mehta, referring to his conversation Ms Burgess, cannot be genuine. When one adds to that the fact that the Defendant was alleging and noting a meeting with Mr. Booth which, in evidence yesterday. Mr Booth adamantly asserted never took place, and when all the evidence is put together, I consider that there is a case to be answered as to the genuineness of the work diary and whether that is or is not a document which was manufactured for the purposes of the Employment Tribunal. One also adds into the mix the fact that the entries in that document appear to be out of sequence.

Allegations 10, 11 and 31 relate to the Defendant having alleged that another employee of the bank, to whom I shall refer as ‘Lola’, had inappropriately yelled at him and referred to him as “this boy” in a deprecating fashion. Clearly if that had occurred, it would have been a serious matter in the employment law context.

Mr Browne again puts together the case for me, a case which I have no doubt the Defendant was already well aware of, by reference to certain documents. For example, an e-mail sent by the Defendant to his line manager, Yogita Mehta, on the 20th of November 2019 at 15:34, in which he complained about the behaviour of Lola, who he said “had the audacity to come to my desk and grabbed my mouse, raised her voice”, but where he made no reference to having referred to him as “this boy”, a perhaps ‘deafening omission’ if that allegation were true. Importantly, that e-mail followed an e-mail sent the previous day by Lola, that is, on the 19th of November, in which she had said:

“The last straw was yesterday afternoon which I believe you were privy to. His words directly to me were “I don’t want this girl to mark my cases, I don’t want this girl touching my mouse, tell this girl not to talk to me” Other than this being unprofessional and completely uncalled for given the circumstances, I also consider that this is quite rude and offensive language within an office environment”.

As Mr. Browne put it, it is a curious feature that Lola, having contemporaneously complained of his reference to her as “this girl”, he should then, at a significantly later stage have accused her of referring to him as “this boy”. Thus, this allegation didn't initially feature in his original pleadings to the Employment Tribunal, but only featured once the Claimant Bank had served its grounds of resistance to the ET claim (see page 60 of Additional Bundle 1), whereupon this new allegation emerged in the further and better particulars paragraphs i and ii on page 116. Mr Browne, submits that this represents evidence upon which the court can be satisfied, even in the absence of evidence from Lola, that the Defendant was dishonest in making that allegation. I agree with Mr Browne's submissions on that, and consider that there is a case to go forward in relation to grounds 10, 11 & 31.

I come then to allegations 24, 25 & 26, which allege that the Defendant falsely asserted that he had expressed his sympathies to Mrs Q about the death of her mother, and that it was out of concern for her sensitivities in her vulnerable state, having suffered that tragic loss, that he did not raise the sexual harassment or assault claims at an earlier stage. Although those matters which he alleged emerged either in the summer of 2019, or in particular, on the 7th of October 2019, Mr. Browne submits that it is the Claimant’s case, that the Defendant’s reliance on Mrs Q's personal tragedy is demonstrably false because he didn't learn of the death of Q's mother until November 2019, according to paragraph 31 of his own witness statement. If that was the first time he learned of Q's mother's death and started expressing his sympathies to her, it could not have explained his failure to complain about her sexual harassment, if it were true, at an earlier stage.

Mr. Browne also relies upon an inconsistency on the part of the Defendant in agreeing to go for lunch with Mrs Q and another colleague, Darren, if he truly considered himself to be the victim of sexual harassment. Mr. Browne submits that only by inventing lies about a Nigerian dish and going to a restaurant, was the Defendant able to try to explain this inconsistency. Again, I consider that, when the allegation is put into context, and one considers the totality of the evidence, including, the matters to which Mr. Browne referred and the, evidence that was given before the Employment Tribunal, there is a sufficient case to answer that I should not dismiss these allegations at this stage.

For these reasons, the application on behalf of the Defendant is refused.