7 Rolls Buildings
London EC4A 1NL
B e f o r e :
(Sitting as a judge of the Patents County Court)
| UTOPIA TABLEWARE LIMITED
|- and -
|(1) BBP MARKETING LIMITED
(2) THE BRITISH BUNG MANUFACTURING COMPANY LIMITED
Robert Onslow (instructed by Baxter Caulfield) for the Defendants
Hearing date: 1st May 2013
Crown Copyright ©
Mr Justice Birss :
Can this court refer?
Committal application in relation to a false statement of truth or disclosure statement
81.18 (1) A committal application in relation to a false statement of truth or disclosure statement in connection with proceedings in the High Court, a Divisional Court or the Court of Appeal, may be made only –
(a) with the permission of the court dealing with the proceedings in which the false statement or disclosure statement was made; or
(b) by the Attorney General.
(2) Where permission is required under paragraph (1)(a), rule 81.14 applies as if the reference in that rule to a Part 8 claim form were a reference to a Part 23 application notice and the references to the claim form were references to the Part 23 application notice.
(3) A committal application in relation to a false statement of truth or disclosure statement in connection with proceedings in a county court may be made only –
(a) with the permission of a single judge of the Queen's Bench Division; or
(b) by the Attorney General.
(4) Where permission is required under paragraph (3)(a) rule 81.14 applies without the modifications referred to in paragraph (2).
(Under rule 81.14(6)(b), the court granting permission may direct that the application be listed for hearing before a single judge or a Divisional Court.)
(5) The court may direct that the matter be referred to the Attorney General with a request that the Attorney General consider whether to bring proceedings for contempt of court.
(6) Where the committal application is made by the Attorney General, the application may be made to a single judge or a Divisional Court of the Queen's Bench Division.
Committal application in relation to a false statement of truth or disclosure statement – Rule 81.18
5.1 Rules 81.18(1)(b) and 81.18(3)(b) provide that a committal application may be made by the Attorney General. However, the Attorney General prefers a request that comes from the court to one made direct by a party to the proceedings in which the alleged contempt occurred without prior consideration by the court. A request to the Attorney General is not a way of appealing against, or reviewing, the decision of the judge.
[ … ]
5.4 A request to the Attorney General to consider whether to bring proceedings for contempt of court must be made in writing and sent to the Attorney General's Office at 20 Victoria Street, London, SW1H 0NF.
A request to the Attorney General must be accompanied by a copy of any order directing that the matter be referred to the Attorney General and must –
(1) identify the statement said to be false;
(2) explain –
(a) why it is false; and
(b) why the maker knew the statement to be false at the time it was made; and
(3) explain why contempt proceedings would be appropriate in the light of the overriding objective in Part 1.
The rules do not change the law of contempt or introduce new categories of contempt. A person applying to commence such proceedings should consider whether the incident complained of does amount to contempt of court and whether such proceedings would further the overriding objective in Part 1.
Should I make a direction for referral in this case?
i) This is actually a conspiracy case. Mr Dodd and Mr Core conspired together and with third parties (the distributors) to present a false picture to the court. Although the distributors (Mr MacDonald, Mr Lowery and Mr Wallwork) are not free from blame, clearly Mr Dodd and Mr Core were the lead conspirators;
ii) Mr Dodd read the defendants' skeleton argument in December and was clearly warned that if the claimant relied on the emails they would be "crossing the Rubicon" in relation to contempt. He went ahead with his eyes open to the consequences and Dodd 5 does not deal with this. The explanation that Mr Dodd was angry that the defendants had copied the Aspen product does not explain the point. The decision to go ahead was coldly calculated as were the subsequent actions to try to get the emails excluded from the proceedings.
iii) In response to the challenge on the emails Mr Dodd made a second witness statement signed with a statement of truth which asserted they were unsolicited and sought to rely on the emails. At this stage the date problem had not emerged.
iv) A completely fictitious story was concocted by Mr Dodd and Mr Core to explain how the emails were created. The two witness statements in which these lies were told were made in purported compliance with an order of the court.
v) When the date problem emerged in the evidence of Mr Steer, Mr Dodd still did not confess, but went on the attack against the defendants' employees.
vi) Only after the tactic of trying to prevent contact with the distributors in order to cover their tracks had failed did Mr Dodd and Mr Core confess what they had done.
i) It is not suggested there should be no sanction for the false statements but this is not the most serious contempt and can be adequately dealt with within the trial process by public censure and a financial penalty in the form of an appropriate adjustment to any order for costs.
ii) The contempt was not of the most serious nature because:
a) The emails did not have any material effect on the injunction granted on 21st January and therefore, it may be inferred, that the injunction granted on 18th December would also have been granted anyway without them. Moreover the first injunction was granted without the belated admission of copying by the defendants.
b) Prior to 21st January reliance on the emails was abandoned. While there was repetition of the false statements, this was not to continue reliance on a false case.
c) The falsity was admitted by Mr Dodd and Mr Core rather than being found against them in a contested contempt hearing. In essence they have pleaded "guilty" before the charge has been laid. They have expressed sincere remorse and credit should be given for this early confession.
iii) A referral to the Attorney General may lead to the claimant having to manage two simultaneous sets of proceedings, this action and a contempt application. This would place the parties on an unequal footing and would create an unfair disadvantage for the claimant.
iv) A referral would not save expense or be proportionate since the contempts are admitted and can be dealt with by the court's case management powers. If the defendants are not prepared to make the application themselves, why should the burden fall on the public purse? For the same reasons referral would not result in the allocation of an appropriate share of the court's resources.
v) The conduct of the defendants is relevant. The defendants only admitted copying belatedly when they could and should have done so earlier. Second, by not revealing what they knew about the date of the emails until later, the defendants seem to have led the claimant on in order to secure a collateral advantage and the court should not condone this conduct.
i) The identity of the statements said to be false are set out in the fifth witness statement of Mr Dodd and second witness statement of Thomas Core. In summary the false statements are in paragraphs 13, 14, 15, 19, 20, 25, 27 and 34 of the first witness statement of Mr Dodd, paragraph 6 of the second witness statement of Mr Dodd, paragraphs 2, 3, and 4 of the third witness statement of Mr Dodd, paragraphs 2, 3, 4, and 5 of the fourth witness statement of Mr Dodd, paragraphs 3, 4, 5, 7, 8, 10, 11, 12, and 13 of the first witness statement of Mr Core.
ii) The explanation why these statements are false is set out in the fifth witness statement of Mr Dodd and second witness statement of Thomas Core. The emails referred to were not genuine. They were procured and re-dated to support the claimant's case.
iii) The makers of the statements have admitted that they knew the statements were false at the time they were made.
iv) A committal application would be appropriate for the reasons I have addressed above.