5th August 2022
I came across a case on BAILLI which I read with increasing concern, indeed dismay.
I had somehow missed the relevant litigation being reported in the news, and so I did not know anything of the case, so I came to the case report fresh.
And I could not believe what I was reading.
I am sharing it with followers of this blog now, for I am thinking about writing about the case in detail.
The case is about contempt of court – and, in particular, what a court can be asked to do by a party with an injunction against those who (supposedly) breach that injunction.
The courts of England and Wales take contempt of court seriously – very seriously – especially in respect of parties breaching the orders of the court.
Indeed, it often seems that courts take contempt of court more seriously in respect of parties breaching the orders of the court than the court will do if a party breaches a legal obligation to any other party.
But this case seems to show how contempt of court this can be abused by the injuncting party
The impression I gained on reading this case was that the injuncting party were, in effect, weaponising and misusing contempt of court for private, commercial advantage – to the effect one could discern any motivation behind what they were doing at all.
The application seemed either spiteful or irrational – for a bad reason or for no reason.
And certainly not for any good reason.
The judge was not having any of it, and these two paragraphs give a flavour of the judgment:
Before I devote the time and energy (and opportunity cost) to writing about the case, I should be grateful for the views of those following this blog.
Is this a case worth a close reading?
Is this an (attempted) abuse of power which should be be brought to a wider audience?
Or is this a storm in a lawyer’s tea cup?
Does the fact that a judge sorted it out in the end mean that nothing really untoward here happened which could not be cured?
I am currently considering writing a detailed step-by-step critique of what the injunction party sought to do here – as it seems to me to be, on the facts, vindictive and a gross misuse of the court.
I also think, in general, there must be a change so that injunctions against “persons unknown”, after this case, always require the leave of the court.
There is a Law Gazette news report here.
And Adam Wagner has done a Twitter thread here:
An important judgment by Mr Justice Nicklin in a "frivolous" bordering on "vexatious" contempt application against a specialist protest solicitor for allegedly breaching an anti-protest injunction she didn't know existed https://t.co/xLxlVY8fdR
— Adam Wagner (@AdamWagner1) August 5, 2022
Let me know what you think.
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Perhaps a more consequential contempt of court action is the one that was taken by the government of Scotland against Craig Murray. That action resulted in Craig being locked up for several months, supposedly for “jigsaw identification” of one of the letter-women that falsely accused Alex Salmond of sexual assault.
I personally think the true reason he was locked up was because he was the only(!) journalist reporting daily on the Assange deportation hearings.
Vast judicial abuse of contempt powers. After a judge ordered no contact with local law enforcement she authored a show cause order silencing the citizen’s reporting of crime to law enforcement. The order was violated.
The judge then went on to hold a criminal “arraignment” for a sui generis common law offense and placed the alleged contemnor on conditions of release and supervision pending trial. Situations that only apply to statutory crimes, not sui generis common law offenses.
The day after the “arraignment” a criminal case appeared listing the State of Florida as a plaintiff in a different court before a different judge. It was a lower court. No State of Florida prosecutorial authority authored a charging document that would place them in the position of a party/plaintiff and the State was not a party to the proceeding where the contempt was an issue.
There was no service in the new criminal case that popped up in a different court without a commencement document filed by the “Plaintiff”.
Further, 3 days prior to the arraignment, the civil case where the contempt resided was removed to federal court. The judge plowed ahead exclaiming “This case doesn’t get removed anywhere.”
Here is an affidavit filed followed by the case record on appeal which was absent a charging/commencement document authored by the plaintiff and absent any proof of service.
https://edca.6dca.flcourts.gov/DcaDocs/2023/0946/2023-946_MiscDoc_1290168_DK34202D20AFFIDAVIT.pdf
https://edca.2dca.org/DcaDocs/2019/1914/2019-1914_Brief_530010_RC09.pdf
This matter became very public on the internet and in the courts and ultimately the prosecutor took his own life after being interviewed by the FBI concerning the case with a gunshot to the head.
https://www.fox4now.com/news/local-news/assistant-state-attorney-anthony-kunasek-lead-prosecutor-in-club-blu-shooting-case-passes-away
The judge and the State’s Attorney were to blame for this injustice. Things roll downhill and they threw the prosecutor under the bus.
yes, I think it would be useful to have a closer reading and a step-by-step critique.
It seems to me that the intention was to cause fear and dismay, in essence, SLAPP by another route. Perhaps testing the waters, to see if traction could be gained. It would be interesting to know if there are any circumstances in which such a case could legitimately be brought.
I suppose my question if how common is this type of attempted abuse of contempt and does it ever succeed? If it is common and has succeeded in the past then it is worth dealing with in more detail
Thank you for highlighting this. I think a detailed analysis would be more than worthwhile. Even though this attempt failed, there may well be more and better prepared, and it would be well for as many people as possible to know about the danger
I think a close reading of the case would be interesting. I think a post using the case as a jumping off point into looking at the law and policy of disruptive protest would be even more interesting as well as useful – there is clearly a practical problem here quite apart from the legal technicalities.
I would certainly be interested in an in-depth commentary. If a party can seek to misuse the contempt of court process for commercial gain/advantage, which is bad enough, the prospect of a politician with the benefit of a “super injunction” abusing the process for political ends appears to me to be worse. There are politicians in Scotland reputed to have such super injunction which, although from English courts, have indirect effect here. Such politicians abusing contempt proceedings would a major concern.
Please do write about this in further detail. As a lay person, I’m trying to understand how it’s even possible to have an injunction against “persons unknown”. Is there a list somewhere of all of the injunctions against persons unknown? I feel like we can’t be expected to abide by an injunction if there’s no way of knowing what they are.
Yes please! Worth it! Contempt is a concept that many do not understand, to great disadvantage.
Ouch. That is pretty outrageous. At the highest, as the claimant’s barrister agreed in court (see para 93), either it was a technical breach requiring no penalty, or not a breach in the first place.
Poor Ms McGivern. I hope her costs were paid. It feels like she should be entitled to compensation for loss of earnings and injury to feelings caused by a malicious prosecution.
It smacks of the “take no prisoners”, “no stone unturned”, “all’s fair in love and war” (and lawsuits) disproportionate approach to litigation that the Woolf reforms were meant to end. As Adam Wagner identified, a further step in the privatisation of public space.
So a “persons unknown” injunction can be “served” on the entire world, by being displayed in a plastic envelope within a locked glass-fronted cabinet with a covering letter, with only the first pages of boilerplate and no operative provisions legible, and copies left inside an anonymous box under the board, and on Dropbox. (Even then, not quite in accordance with the court order permitting alternative service anyway.)
How are “persons unknown” – e.g. you and me and everyone reading – meant to acquaint themselves with the injunction to which they are all potentially subjected if we park in the wrong layby?
Next time perhaps they will try leaving it in a cellar with no light or stairs, at the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying “Beware of the Leopard”.
(On your specific question, I think this deserves the DAG treatment, but I am sure you have plenty of other calls on your time.)
A potential counterpoint: this recent case in which a defendant’s solicitor was found to be guilty of contempt, on just one of several grounds advanced by the claimant.
https://www.bailii.org/ew/cases/EWHC/Ch/2022/2079.html
On outline, when told that a client had just been served with a search order, and that electronic devices were being demanded (to capture their data), the solicitor’s first reaction was to call the client’s IT manager and ask him to delete a messaging application (to protect his wife, who it seems had been mentioned, elected as an MEP shortly before).
The court dismissed the solicitor’s defence that he had not seen a copy of the order, did not fully understand it scope, and did not intend to interfere with the administration of justice. The court was not persuaded that the breach was trivial or technical: the extent to which prejudice was caused to the claimant goes to sanctions, not liability.
Read the Judgment in the Ocado case and I would submit that it is materially different from the instant example.
In particular, the Ocado judgment details the instructions by Mr. McKeeve to “burn it” or “burn all” (the exact form of words was not explicitly identified) [in reference to chat messages that carried the potential to reveal criminal acts/planning by parties including Mr. McKeeve] talk to deliberate actions and a “consciousness of guilt” that simply isn’t present here.
I think you’ve given us an example at “the other end of the pendulum swing…”
Absolutely worth the focus; contempt proceedings that can be deployed against, if I understand the risk, a target of future choice or almost at random is a worrying development!
Very glad that you have drawn attention to this. I read the judgement after seeing an earlier report on twitter and shared your reaction.
Certainly worth a close reading and to be brought to wider attention.
The differences between the assertions made in the initial affidavits from and the ultimate findings of the Judge are striking.
That the Judge needed to make use of the inherent jurisdiction of the court to require notice was also striking.
You have written about how constitutional norms have been challenged and the current challenges to the ‘good chap’ theory of the checks and balances of our constitution.
There seem to be interesting parallels here.
I read Nicklin J’s judgment in full before your post.
It is a sad reflection on how professional standards have fallen since the millenium .
The instructing solicitors are a relatively large long established firm as opposed to a small provincial practice which may have got out of its depth.
The deposition from P C Shailes and its lack of attention to detail is embarrassing.
The security industry has never been properly regulated for decades. Nothing is likely to fundamentally change any time soon . Just wonder what, if any, training « security » on this site had about service and policing of the original injunction.
Solicitors who take on unpopular causes have often attracted enemies but the treatment dished out to Gillian McGivern seems excessive and possibly more than vindictive.
I absolutely think that it’s worth an in-depth look, especially after reading about the personal cost to Ms. McGivern. Malicious use of the law is always a cause for concern, especially one that has the potential to be a particularly sinister abuse.
I became aware of injunctions and contempt of court proceedings after being involved in the Sheffield tree-felling protests (as an onlooker, not a litigant). The injunction provided a way for Sheffield Council to get an “upgrade” on a level 1 summary offence (obstructing highway work) to being an “offence” where trivial breaches (e.g. a guy reading a poem for 3 minutes within the safety zone after felling had stopped anyway) could incur a 1 month per incident suspended sentence and £15,000 per defendant costs awarded against them. No jury. No CPS deciding whether it’s in the public interest. Strict liability – there was no implication that the poet intended to actually interfere with felling.
It was scary how disproportionate and punitive it could become if you have the money to obtain an injunction.
So yes, I’d be interested to hear more about injunctions and contempt of court, and their potential abuses.
As you say, this instance has been sorted out. However, the question remains of how much, or how little, of a change of circumstance would be required to reverse or prevent this result.
I read the judgment and indeed thought the pursuit of the solicitor was vicious and absolutely TWM. A reading of the case might be pulled in different directions. On the one hand, why was it brought at all? as per recent DAG reflections elsewhere. Then what about that dodgy witness statement from police constable, let off lightly as unreliable, which of course was all that was necessary. But really? Asked what happened on xyz day comes up with whole story about looking at injunction on a laptop but doesn’t even know which CPS lawyer was there? What is the back story there? So all that would be part of a behind the scenes reading. Also the P clearly irritated the judge extremely with the claim about couldnt reject truth of police statement if no specific X on the injunction. Anyway then the other hand would be the more properly legal stuff as per above eg should specific persons unknown require permission.
The idea of these kinds of injunction acting as, in Adam Wagner’s words, “a kind of private criminal law system” fill me with horror. In-depth scrutiny and comment please!
Writing from the US and thus unfamiliar with the niceties here, it seems that several approaches might be taken. One that occurs to me is that it is a fairly straightforward example of self-regulation within the legal system: an illustration of how an egregious overreach can result in an explicit check on that type of practice. (This also avoids having to tease out some sort of explanation of the service discussion.)
NB: In the States, depending on the jurisdiction this kind of conduct might well result in sanctions.
It’s a case which definitely needs calling out: to put that solicitor through all that on a heavy grudge basis could not fairly be justified.
On a quite separate note: I am looking seriously at whether it is a good use of prison space (and ruination of parents’ lives) for family courts to send parents to prison for perceived (and proved) breaches of family court orders….
Good morning. When I look at the Judiciary website it is reveals a large number of contempt of court matters arising for a considerable variety of reasons. It would certainly be interesting to know whether “weaponising” is becoming a trend. May not be too easy to find out though.
“Does the fact that a judge sorted it out in the end mean that nothing really untoward here happened which could not be cured?”
Was Ms. McGivern singularly fortunate in the judge who heard the case? How variable — even arbitrary — are the winds of fortune that blow through our courts?
An in depth look would be very helpful. I am struck by the conduct of the case against Ms McGivern and the conscious choices made by some who could and should have known better.
Yes please.
Very disturbing Adam Warner’s comment “… sad to see both major political parties support these kind of injunctions – I don’t think they realise what they are unleashing – effectively a network of private criminal law zones ….”.
The judge severely criticised the Applicants and by implication their lawyers. Sensible lawyers who are aware of the judgment will advise their clients not to follow the example of these applicants, and will also recognise the possibility that if their clients ignore their advice they, the lawyers, may also be in the firing line – although f course the “dog doesn’t eat dog” concept usually protects lawyers from judicial criticism. My guess is that this strong judgment should end such abusive applications.
Michael
I read this case with increasing horror. It is well worth the effort of reading it and being the subject of wider discussion. It presents as an abuse of process. The judge was more controlled than I would have been in allowing repetitive questions on the same point but it was clearly not the finest hour for the claimant’s counsel in her manner of representation.
It was interesting.
These vague injunctions seem a bad thing.
I read the judgement with interest. I am left with two questions. First, why did these people bring this action at all, given who the defendant actually was? Secondly, how can she get compensation for this treatment?
Yes, from my POV an exposition of how contempt of court works and whether it is a new way for persons of means to pursue others is possibly a good use of DAG time. Imagine if the defendant here had not been a lawyer and therefore able to confront the situation on somewhat familiar ground.
Excellent and thought-provoking article as usual
What a great judge and what a clear judgment – let’s hope we would be lucky enough to come up before him if ever charged with a spurious claim, really impressed how much time and care he’s put in (and clearly he’s pissed off that he had to) – let’s hope claimants got an indemnity costs order against them (and got Mills & Reeve to pay – no letter before action etc etc)
Would such an action always be heard in the High Court? One suspects that a harassed Deputy District Judge in the County Court would not have had the luxury of a week or however long this case must have taken (plus another week or so to write up the judgment that is as careful and precise as a PhD thesis) – God Bless Our Independent Judiciary
I do hope that Ms Mcgivern recovers and will be able to continue her good work without having been intimidated
I agree that these sort of cases should be strictly curtailed to prevent them being used tactically and to ensure maximum protection for people drawn into them – perhaps punitive compensation orders for the wrongly charged…
Adding to the others, I agree that this warrants further comment. This is an attempt to criminalise a lawyer seeking to represent protesters, when they did no harm to the claimant. If it had succeeded, that would have been an immediate restriction on the rights of all citizens, brought at the behest of a Private Company and with no reference to Parliament.
I think this also has to be seen alongside the Insulate Britain contempt case, where the Department for Transport succeeded in overnight updating the penalty for obstructing a highway, again without reference to Parliament. These are worrying developments.
Yes please
This case revolves around the concept of the ability to draft your own private laws that could be rightfully brought to bear to the detriment of others
Hi David… it occurs to me that this judgement could be seen as similar to the so called SLAPPs cases that are bought by the very rich in order to intimidate journalists and others investigating corruption and wrong doing.
Cheers, Estelle
I haven’t read all other comments, and I can’t make any profound legal comments regarding what you wrote as I am not a legal person. Bt I think you should publish a detailed article if this is something you feel those who follow and value your legal insight would benefit from (sorry for that clunky syntax). As a non-legal person I rely on experts like yourself, (real experts – the ones who have shown a belief in liberal democracy and constitutionalism!), to guide me about what is dangerous or at least worrying in legal affairs.
I would be worried to see you resorting to the now-common policy of people who ask their online readers “what do you think should be writing about.” I follow your writing because I respect your commentary. You argue your points clearly, rationally and without sensationalism. So please continue to write on what you feel is important.
A total waste of court time & resources, carrying the risk of considerable injury to persons who are innocent of any wilful wrongdoing.
Contempt ought to be the sole privilege of the court, not a process to be employed at the behest of counsel or client, nor to be wielded as a weapon of subjugation by arguably over indulged companies against those who might shed light on or object against their nefarious activities.
I agree this ought to be looked at more closely.
I can’t help thinking that this injunction reminds me of a planning notice in HHGTTG:
“But the plans were on display…”
“On display? I eventually had to go down to the cellar to find them.”
“That’s the display department.”
“With a flashlight.”
“Ah, well, the lights had probably gone.”
“So had the stairs.”
“But look, you found the notice, didn’t you?”
“Yes,” said Arthur, “yes I did. It was on display in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying ‘Beware of the Leopard.”