Civil Contempt Proceedings: To What Extent Are The Applicant's Private Interests Relevant?

• Published date: 26 October 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: Herbert Smith Freehills
• Author: Jan O'neill and Meg Lawson

Two recent English court decisions provide useful guidance as to the role of private litigants when they bring an application seeking the committal of another party for civil contempt. In particular, they shed light on the extent to which the applicant's private interests can be a legitimate consideration in such applications, as distinct from the public interest in the administration of justice.

An application for committal can be brought by a party as of right where it alleges that another party has committed a serious (not merely technical) contempt of court by breaching a court order or an undertaking given to the court. It is well accepted that the purposes of civil contempt proceedings include both (i) enforcement of the breached order (where still relevant), including deterring any future breach and (ii) drawing the alleged contempt to the court's attention so that it can be ruled on and sanctioned if appropriate (including by imprisonment).

The decisions illustrate that, as long as it serves one of those proper purposes, it is legitimate for parties to bring and conduct a civil contempt application in pursuit of their private interests, and for the court to have regard to those interests. In particular:

• In Navigator Equities Ltd v Deripaska [2021] EWCA Civ 1799 the Court of Appeal (overturning a controversial High Court decision) confirmed that:
• • applicants for civil committal are not in a quasi-prosecutorial role and do not have to pursue the action 'dispassionately' and solely in the public interest (even in cases where there is no enforcement purpose) and
  • the applicant's subjective motives for bringing the application - even personal animosity or revenge - are not a valid reason to strike it out as long as it serves one of the legitimate purposes of such proceedings.
• The relevance of the applicant's private interests was clearly illustrated by the decision in Ocado Group PLC and another v McKeeve [2022] EWHC 1663. The High Court permitted a committal application to be heard partly in private, as a departure from the principles of open justice, in order to protect the confidentiality of the applicants' commercially sensitive documents and avoid undermining the purpose of the orders that were the subject of the contempt allegation.

Of course, the courts will not tolerate litigants threatening or commencing a civil committal application for an improper purpose. However, the Navigator decision makes clear that this means a collateral purpose...