JTR v HNL

This is an application for permission to seek the committal of the Respondent to prison for contempt of court by telling lies in witness statements.

The witness statements alleged to contain the lies were made by the Respondent in support of a claim by him for an injunction to restrain the misuse, by disclosure, of private information about sexual activities. That claim (‘the Privacy Action’) was successful. In order to protect the information which the court has concluded should be kept private I have taken the same course as the court adopted in the Privacy Action: I have heard the application in private, with reporting restrictions; and I have made orders for the parties’ identities to be withheld, and for anonymisation by the use of the three letter pseudonyms. Those pseudonyms are not the same as in the Privacy Action.

This judgment is given in public, as were my reasons for sitting in private and making the orders I have just described.

For the reasons given below, I have concluded that this is a case in which it would not be in the public interest to grant permission for the pursuit of an application to commit.

In giving my reasons for reaching that conclusion it is necessary to avoid going into too much detail, because it is necessary to avoid identifying the parties, and this means I must take into account what has been made public in judgments of the court in the Privacy Action, and in the course of other related proceedings involving both parties (‘the Other Proceedings’).

The court’s permission is required if anyone other than the Attorney General wishes to seek committal for making a false statement of truth: CPR 81.18(1). When an application is made by someone other than the Attorney General, CPR 81.14(6) and PD81 5.3 give the court options as to how to proceed. The Court may direct that the matter be referred to the Attorney General with a request to consider whether to bring contempt proceedings: CPR 81.18(5) and PD81 5.3(3). Alternatively, the court may grant permission and give such other directions as it thinks fit, including transferring the proceedings to another court or directing that it be listed for hearing before a single judge or a Divisional Court: CPR 81.14(6) and PD81 5.3(1) and (2). Alternatively, the court may refuse permission, or give directions before deciding how to dispose of the application.

These powers must be exercised in accordance with the overriding objective in CPR 1. The Part 81 Practice Direction contains a reminder of this, addressed to litigants, when it states at 5.7 that ‘A person applying to commence such proceedings should consider whether the incident complained of does amount to contempt of court and whether the proceedings would further the overriding objective in Part 1.’ The authorities on the principles to be applied in deciding whether to grant permission reinforce this message.

There is no dispute between Counsel as to those principles, which can conveniently be drawn from passages in the decisions of Cox J in Kirk v Walton[2008] EWHC 1780 (QB), [2009] 1 All ER 257, the Court of Appeal in KJM Superbikes Ltd v Anthony James Hinton [2008] EWCACiv 1280, the Divisional Court in Barnes (t/a Pool Motors) v Seabrook[2010] EWHC 1849 (Admin), and the Court of Appeal in Makdessi v Cavendish Square Holdings BV [2012] EWCA Civ 1540.

In Kirk v Walton, in a passage cited with approval in both KJM and Barnes, Cox J said this at [29]:

In KJM Superbikes at [6] and [9] the Court of Appeal made clear that committal proceedings are public law proceedings, and that the decision whether to grant or withhold permission must be governed by an assessment of the public interest.

In Barnes Hooper LJ cited extensively from KJM Superbikes and at [41]distilled the principles to be drawn from the decision in that case as follows:

It must be in the public interest for proceedings to be brought. In deciding whether it is the public interest, the following factors are relevant:

The case against the alleged contemnor must be a strong case (there is an obvious need to guard carefully against the risk of allowing vindictive litigants to use such proceedings to harass persons against whom they have a grievance);

The false statements must have been significant in the proceedings;

The court should ask itself whether the alleged contemnor understood the likely effect of the statement and the use to which it would be put in the proceedings;

“[T]he pursuit of contempt proceedings in ordinary cases may have a significant effect by drawing the attention of the legal profession, and through it that of potential witnesses, to the dangers of making false statements. If the courts are seen to treat serious examples of false evidence as of little importance, they run the risk of encouraging witnesses to regard the statement of truth as a mere formality.”

The court must give reasons but be careful to avoid prejudicing the outcome of the substantive proceedings;

Only limited weight should be attached to the likely penalty;

A failure to warn the alleged contemnor at the earliest opportunity of the fact that he may have committed a contempt is a matter that the court may take into account.”

In Makdessi the Judge’s reliance on this statement of principle was not criticised by either side, or the Court of Appeal. At [81] Christopher Clarke LJ added this to the principle identified by Hooper LJ at (ii)(d):

The rules of procedure require the evidence relied on in support of an application for permission to bring committal proceedings to be contained in an affidavit: CPR 81.14(1)(a). If permission is granted and proceedings for committal are brought, the evidence in support of or in opposition to the application must be given by affidavit: PR81 14.1.

Two witness statements made by the Respondent are under attack. Both were made in 2012. The first was the initial witness statement in support of an application for an urgent interim injunction. The second was made in reply to evidence filed by the present Applicant in answer to the claim.

In compliance with the procedural requirements of Part 81 and directions of the court the Applicant has prepared and served a “Schedule of false statements” and an Affidavit in support of his application.

The Schedule contains three columns. These (1) list nine statements contained in the Respondent’s two witness statements, quoting their terms, and in relation to each statement, state (2) why it is said to be false, and (3) the grounds on which the Applicant contends that the Respondent knew it to be false.

The Affidavit contains evidence which, if true, supports points (2) and (3) in respect of each of the nine statements, subject to a point I shall come to. The Affidavit has 12 exhibits. These consist of copies of the following: a witness statement and exhibits made by a woman whom I shall call ‘AMS’; correspondence, principally text messages, passing between the Applicant and Respondent, AMS and another woman, whom I shall call ‘KGX’; a bank statement; the Applicant’s diary; and some photographs.

It is fair to say that although the Schedule identifies nine statements that are alleged to be false, the true number is on analysis rather more than that. This is because some of the listed statements are alleged to be false in two or more respects. However, on analysis, and when regard is had to the content of the Applicant’s affidavit, the core allegations of falsehood in respect of which there is supporting Affidavit evidence are relatively few, and clear enough.

The principal allegations are (1) that on a number of occasions the Respondent had threesome or foursome sex with the Applicant and one or more of AMS and KGX; and that he made statements inconsistent with these facts in his witness statements which were false, and known by him to be false. The Affidavit contains some general allegations of this kind, but identifies five specific occasions in 2008 and 2009, stating where the events are said to have occurred in each instance. It is further alleged that the Respondent knowingly made false statements about (2) the true nature of some of the text messages relied on by the Applicant, which the Respondent described in his statement as ‘banter’ or as sent by him in the name of KGX; and (3) the frequency of his meetings with the Applicant. The allegedly false and dishonest statements are contained in paragraphs 16, 17 and 34 of the Respondent’s first witness statement and paragraphs 27-32 of his second statement in the Privacy Action.

The Schedule also contains an allegation of drug misuse, but the Affidavit contains nothing to support this. Mr Crystal, who has appeared pro bono for the Applicant, has not placed any reliance on that point. Nor has he placed weight on the Applicant’s complaint that the frequency of his meetings with the Respondent was misrepresented. Mr Crystal focuses, rather, on points (1) and (2), submitting that at the heart of this application is Applicant’s contention that the Respondent ‘misportrayed his character and concealed his sexual misdeeds’ in his witness statements. The Respondent owed a duty to make full and frank disclosure, which was particularly important due to the cause of action relied on, and the fact that he sought and obtained an anonymity order.

Mr Crystal makes the following submissions in support of the grant of permission:

there is a strong prima facie case against the Respondent in the light of the evidence served by the Applicant;

the false statements may have been significant, because interim and possibly final relief was granted, amongst other things, on the basis of the character misportrayal and concealment of sexual misdeeds; the issue to be determined on the committal application would be, he submits, ‘Is the Respondent a man of virtue or a Machiavellian character?’

no evidence has been served either denying the Applicant’s allegations, or admitting and apologising for them; there is no explanation from him, which should count against him;

there is a public interest in establishing which of the parties has lied and misled the court, as one of them must have done; in this context Mr Crystal relies on the observations of Clarke LJ in Makdessi (above);

Mr Crystal illustrates his submission that the case against the Respondent has prima facie merit by drawing attention to one of the alleged falsehoods. In his first witness statement the Respondent confessed to infidelity to his wife with one of two women whom he says were introduced to him by the Applicant, and whom he says he ‘quickly realised were prostitutes'. The witness statement claims this was an isolated instance. In his second witness statement the Respondent identified the woman in question as AMS. He confirmed that he remained in contact with her, and that he had subsequently sent her a cheque for £3,000. He did not say she was a prostitute.

The Applicant’s case is that in truth the Respondent had had sex with AMS before the occasion he mentions and had sex with her later, on numerous occasions. His second statement was mendacious as well as the first. The Applicant contends that the £3,000 was a payment referable to this continuing relationship. The documents relied on contain material that on its face appears to corroborate this. AMS gave evidence in the Other Proceedings, where she was found to be a credible witness who had more than one sexual encounter with the Respondent. The statement of AMS exhibited to the Affidavit is a version of the statement she made in the Other Proceedings.

Mr Crystal adds a subsidiary submission: that there are also outstanding costs issues in the Privacy Action; in deciding what order (if any) to make the court has to have regard to the conduct of all the parties: CPR 44.3 (4) (a) and 44.3 (5); the court will be unable to exercise its discretion on costs fairly without determining these issues. No great importance is attributed to this point, however, and Mr Crystal accepted that the findings in the Other Proceedings might be enough to resolve this issue.

On instructions Mr Crystal tells me that his client does not wish to be the only one found to be a liar.

As noted by Mr Crystal, no evidence has been submitted by or on behalf of the Respondent. Mr Nicklin QC points out, however, that the allegations that are now made by the Applicant were first put forward by him in the Privacy Action, as long ago as March 2012. They were replied to by the Respondent in a witness statement at that time. Although the Applicant has since said that the Respondent’s reply was mendacious, the Respondent’s position has been made clear. It is false and unfair, submits Mr Nicklin, to suggest that the allegations have not been answered by the Respondent.

Mr Nicklin makes three main submissions on the Respondent’s behalf in support of his contention that permission should be refused:

The Applicant does not have a strong prima facie case.

Committal proceedings would not be consistent with the overriding objective.

These proceedings are abusive and contrary to the public interest.

In support of these submissions the following points are made:-

The only person who has made the necessary Affidavit in this application is the Applicant. His credibility was destroyed in the Other Proceedings, in which he was found to be a blackmailer and a dishonest witness. He should be treated as a liar, whose evidence could not suffice to prove the truth of the allegations. Mr Nicklin has taken me though the key passages of the judgment in the Other Proceedings, which provide ample support for his submission that the Applicant was found after a thorough evidential examination to have acted in a thoroughly dishonest way, both before and during the proceedings.

There is no Affidavit from AMS. On its face, the witness statement of AMS which is exhibited to the Applicant’s Affidavit and dated November 2014 appears suspect. It is a cut and paste, and the signatures do not appear to match. In the absence of an Affidavit freely and voluntarily made by AMS the court could not conclude that the Applicant has presented a strong prima facie case.

In any event, the dispute of fact would be over a matter that was not material to the resolution of the proceedings in which the alleged false statement was made. In support of this submission Mr Nicklin refers to passages in a judgment in the Privacy Action, which clearly do support the view that judicial knowledge that the statements were false would not have altered the outcome.

Committal proceedings, if brought, would be satellite litigation requiring the resolution of disputes of primary fact that have not yet been determined. The Court would have to try the factual issues from scratch, which would threaten to occupy the time of the Court for longer than the Privacy Claim would have taken to try. This would be wholly disproportionate.

The Privacy Action and the Other Proceedings have already imposed a heavy burden on the Respondent, who has been thoroughly vindicated in both cases. The Other Proceedings were lengthy. At their conclusion, costs orders were made in favour of the Respondent and others against the Applicant in very large sums, none of which has been paid. Enough is enough.

The present application is manifestly not motivated by considerations of public interest. It could have been launched long ago, as there are no new facts. The fact that it was only launched at this late stage should lead the court to infer that it is a vindictive attempt at a last throw of the dice by a disgruntled litigant who has lost every other issue between the parties. ‘The Applicant is the paradigm example of a vindictive litigant wishing to use contempt proceedings to harass persons against whom they have a grievance.’

If proceedings were to go ahead and the Respondent was found guilty, the procedural rules would require him to be named (CPR 81.28 and the Practice Guidance [2013] 1 WLR 1316 and The Applicant, by contrast, retains and would continue to retain anonymity, in order to protect the Respondent’s privacy. That would be grossly unfair.

Mr Nicklin submits that if I am not satisfied that permission should be refused I should refer the matter to the Attorney General for consideration, because it would be inappropriate to allow the Applicant to be in control of committal proceedings, given the history between the parties and the findings in the Other Proceedings.

There is no general rule as to when committal proceedings begun by a private party should be referred by the court to the Attorney General: KJM Superbikes at [15]. I do not think this is a case where I should duck the responsibility of assessing the balance of public interest in such proceedings being brought. The matter is before me, at some expense, and I am in a position to reach a conclusion. The Applicant has offered, through Mr Crystal, to pursue committal only through solicitors and Counsel. I am satisfied that I could grant permission on such a condition. A condition of that kind would meet the integrity and independence concerns raised by Mr Nicklin, in which I can see some merit.

The fact that committal proceedings would be ‘satellite litigation’ is not of itself particularly persuasive. All proceedings of this kind are in one sense ‘satellite litigation’; they are necessarily collateral to some other proceeding, and are not concerned with the resolution of civil rights or obligations between parties.

Concerns as to proportionality could be catered for to some extent by cutting down the range of allegations of falsehood in respect of which permission to proceed is granted. I would not have allowed items 2 and 4 in the Schedule to go ahead, as they are too generalised and vague. Nor would I have allowed the drugs issue to go forward, in the absence of any evidential support in the Affidavit. The Affidavit evidence and exhibits could in principle be cut down to produce a more concise and precise set of allegations, focusing exclusively on the matters I have identified.

I am highly conscious of the strength of the public interest in holding to account those who make false statements in their evidence to the court, and the high importance of upholding that public interest in relation to privacy proceedings in particular.

It is relevant to the public interest assessment to consider how important the matters were on which a party is alleged to have lied to the court. They must be significant. A judgment in the Privacy Action indicates that in this case the alleged lies would have made no difference. But that cannot be the test. A party accused of telling lies to a court in a witness statement cannot expect the court too readily to accept that the lies were not material, and on that ground refuse permission to seek committal. The court is bound to ask why, if the evidence was not material, was the evidence given at all? In this case, as Mr Nicklin accepts, the Respondent owed a duty of full and frank disclosure. That requires all matters which could be considered material to be disclosed. That, on the Respondent’s case, must be why he said what he did. The materiality point has some weight but not a great deal.

Ultimately, however, I have arrived at the firm conclusion that the committal proceedings proposed by this Applicant would not be in the public interest, for these reasons:

Although the Applicant has in my judgment a prima facie case on the evidence as it stands, he does not have a strong prima facie case. There is a very real prospect that the evidence would be held to fall short of proving the Applicant’s case to the criminal standard.

Assuming that an Affidavit from AMS was obtained, that the investigation was limited in the way I have described, and conducted with legal representation on both sides and firm case management, I still consider that contested committal proceedings, if they were to be fair to the Respondent, would be likely to last as much as two days. They would, as both sides have submitted, require findings of fact on matters which have not been tried before. Credibility would be a key factor. It would be hard to confine cross-examination on credit, whilst being fair to the Respondent.

It is questionable whether the findings in the Other Proceedings would be admissible at all in the light of Hollington v F Hewthorn & Co Ltd [1943] KB 587. If they were, there would be rich potential for debate about their impact. The nature of the inquiry was different. I think Mr Crystal was right to accept that the findings in the Other Proceedings would not be conclusive, even if admissible, against his client. For one thing the standard of proof is higher in contempt.

The fresh factual investigation that would be necessary would, it presently appears, be undertaken at the expense of the Respondent, win or lose. The Applicant has already caused the Respondent to incur huge irrecoverable expense in preventing the Applicant from successfully blackmailing him, and in fighting the Applicant’s mendacious claims in the Other Proceedings. The public resources consumed would also be significant.

There are reasonable grounds to believe that the Applicant’s motives are vindictive. He certainly cannot gain materially from committal, though he can cause the Respondent loss by bringing proceedings for that purpose.

The Applicant’s stated aim, of evening up the scales as between him and the Respondent, is a private aim, and not a public interest purpose. Nor does it seem to me to be justified anyway. The Applicant has anonymity, so the findings against him are not generally known. For the reasons given by Mr Nicklin, I am not persuaded that committal proceedings would necessarily leave the scales in even balance. It is possible that the one-sided outcome Mr Nicklin predicts might come about, with the Respondent being named and shamed publicly whilst the Applicant retains anonymity in order to preserve what is left of the Respondent’s privacy.

Bearing in mind the caution required before permitting proceedings of this kind to go forward, I conclude that the public interest in holding to account those who lie to the court is considerable, but not weighty enough to justify the consequences I have identified. In the end, the public interest in this case lies in drawing a line under this long-running saga rather than initiating a further expensive exploration of what did or did not happen in private between consenting adults on five or six occasions 6 or 7 years ago.

I should explain a little more my reasons for one of these conclusions: that there is no strong prima facie case. I accept Mr Nicklin’s submission that the conclusions arrived at in the Other Proceedings (admissible for present purposes) leave the Applicant’s own credibility in tatters. This is not just a matter of his having told lies, though many such were found to have been told. I place weight on some of the specific findings to which Mr Nicklin has drawn particular attention. These relate among other things to the Applicant’s evidence in the Other Proceedings about the frequency and dates of group sex events involving the Respondent. That evidence was found to be inconsistent and unreliable. The contents of the Applicant’s present Affidavit are in several respects inconsistent with specific findings of fact made in the Other Proceedings.

There is no Affidavit from AMS. Mr Crystal objects to Mr Nicklin’s suggestion that the authenticity of the witness statement exhibited by the Applicant was in doubt. His instructions are that AMS would probably make an Affidavit if asked. The fact remains that she has not done so, although there has been ample opportunity for the Applicant to obtain one. I would have been very reluctant to grant permission without an Affidavit. I might in principle have granted permission conditional upon the production of such evidence, but I doubt that would have been a satisfactory course, especially given how long this matter has been hanging about.

I have not ignored the texts and other documentary evidence, but in the absence of corroborative evidence to support the Applicant’s explanation of them I do not consider they carry enough weight to overcome the absence of an Affidavit from AMS.

It is for these reasons that I refuse the application.