Jersey Unreported Judgments

Appeal against contempt debarring order.

[2023]JCA018

Court of Appeal

31 January 2023

Before     :

George Bompas K.C, President; Sir William Bailhache; and James Wolffe K.C.

 

Advocate H. B. Mistry for the Appellant

Advocate W. A. F. Redgrave for the Respondent

judgment

wolffe ja:

This is the judgment of the Court.

1.        This is an appeal against orders inter alia debarring the Appellant from prosecuting a specified claim against the Respondent until the Appellant has complied with a Court-imposed sanction for an unpurged contempt of court.  The parties have now settled that claim.  We heard submissions as to whether we should dismiss the appeal on the basis that it has become academic.  Having heard and considered those submissions, we decided to dismiss the appeal.  We advised the parties of our decision.  This judgment gives our reasons.

Factual circumstances

2.        The background to this case is a long-running litigation concerning a family trust.  In the context of that litigation, on 14 December 2018 the Royal Court made an order requiring the Appellant to disclose specified information to the Respondent's advocate.  On 7 October 2019 for reasons set out in its judgment of that date ([2019] JRC 199), the Royal Court found that the Appellant had failed and was continuing to fail to comply with the disclosure order and that she was, accordingly, in contempt of court.  On 29 January 2020 ([2020] JCA 017) the Court of Appeal dismissed the Appellant's appeal against that finding.  

3.        On 22 December 2020 the Royal Court, for reasons set out in its judgment of that date ([2020] JRC 267), ordered the Appellant to pay a fine of £2 million within two months, and that in default of payment she would serve a prison sentence of twelve months' imprisonment.  On 8 June 2021 the Court of Appeal ([2021] JCA 163) dismissed the Appellant's appeal against that judgment, granted an extension of time for payment of the balance of the fine until 15 July 2021, and declared that the order for imprisonment in default would take effect if the balance was not paid by that date.  

4.        On 17 August 2021 the Appellant applied to the Judicial Committee of the Privy Council for leave to appeal the Court of Appeal's decision of 8 June 2021.  On 31 March 2022 she applied to be allowed to amend and supplement her proposed grounds of appeal, inter alia with a view to arguing that the disclosure order of 14 December 2018 did not contain any qualification in relation to self-incrimination and that the Appellant's right not to incriminate herself had been abrogated inter alia by that order.  On 19 July 2022 the Judicial Committee of the Privy Council refused leave to appeal the Court of Appeal's decision of 8 June 2021 on the basis that the appeal did not raise an arguable point of law.  

5.        Meanwhile, on 25 May 2021 the Appellant raised proceedings (under case reference 2022/112) by way of an Order of Justice of that date against the Respondent seeking damages in respect of an alleged abuse of process.  The essence of the allegation against the Respondent was that the order of 14 December 2018 did not include the standard wording against self-incrimination and that an order omitting that wording had been deliberately procured by the Respondent with an improper purpose.  The Order of Justice alleges that as a result of the alleged wrong the Appellant has sustained loss by way of damage to reputation and mental distress as well as legal costs and expenses.  

6.        The Respondent applied for an order that the Appellant be debarred from prosecuting the claims in the Order of Justice dated 25 May 2022.  On 12 October 2022 the Bailiff, sitting in the Royal Court, granted an order in the following terms:

"1. Granted the request made in [the Respondent's] summons and ordered that [the Appellant] be debarred from prosecuting the claims in the Order of Justice dated 25 May 2022 [2022/112] until she has paid in full the balance of the fine of £2 million imposed on her by the Royal Court for contempt of court on 22 December 2020 in the related matter filed in action [JGR 2019/090]; and

2. Ordered that [the Appellant] pay [the Respondent's] costs of and incidental to this Summons on the indemnity basis."

7.        Paragraph 1 of the Bailiff's order has been referred to in these proceedings as a "Hadkinson type order", under reference to the decision of the Court of Appeal of England & Wales in Hadkinson v. Hadkinson [1952] P 285.  We will refer to it as a "contempt debarring order".  This is to distinguish the order made in the present case from an order for a stay of proceedings (which may also be called a "debarring order") where a party, who is the debtor in an unpaid costs order, seeks to pursue proceedings against the creditor.  Further, while paragraph 1 of the Bailiff's order referred to the unpaid fine, the fine itself was imposed for an unpurged contempt of court, a contempt which so far as matters stood before the Bailiff still had not been purged, concerning disclosure which ought to have been made, but had not been made, by the Appellant in favour of the Respondent. 

8.        The Bailiff's reasons for granting that order are set out in his judgment of 12 October 2022.  He addressed the five conditions for the grant of such an order identified by Peter Jackson LJ in paragraph 11 of his judgment in Orenga de Gafforj v. Orenga de Gafforj [2018] EWCA Civ 2070 and concluded that they were satisfied.  In relation to the fourth condition (whether there was an impediment to the course of justice) he observed:

"There are some cases where the action of a contemnor is so flagrant and clear that to permit them to continue in a related set of proceedings would be an affront to justice and would bring the course of justice into disrepute. In my judgment. This is such a case."

He concluded that the order sought was proportionate and went no further than necessary.  The imposition of a contempt debarring order was, in the Bailiff's view, the only way to ensure that the Court's order was obeyed, whilst if the contempt were to be purged, it would be open to the Appellant to continue with the proceedings.  

9.        In paragraph 25 of his judgment, the Bailiff observed:

"I have reviewed the Order of Justice and it appears to me that the subject matter of those pleadings is closely related to the subject matter of the proceedings which have given rise to the contempt finding. Whilst technically they are separate proceedings, on one analysis, Camilla [the Appellant] is seeking to undermine the finding of contempt by deploying arguments neither deployed at the time nor accepted by the JCPC as a ground of appeal."

10.      On 9 November 2022, the Bailiff, sitting in the Royal Court, granted leave to appeal.  In his judgment of that date, he stated that he granted leave to appeal on the issue of "whether or not a discretion to impose a Hadkinson type order can be exercised over a cause that is different from, though very clearly related to, the cause in which the contempt arose".  He took the view that this question might be regarded as a question of general principle which falls to be decided for the first time and, in any event, as an important question of law upon which further argument and a decision of the Court of Appeal would be to the public advantage. 

Settlement between the parties

11.      On 16 January 2023, one week before the date fixed for the hearing of the appeal, the Court was advised that the parties had reached a settlement.  The consent order which has been filed in case reference 2022/112 states that the Appellant, the Respondent and other connected parties have arrived at a final settlement of various claims between each other, including the claims set out in the Order of Justice of 25 May 2022.  The consent order provides:

"1. The present proceedings (ie case reference 2022/112) shall be stayed until the final determination of the Plaintiff's appeal against the Debarring Judgment.

2. Upon the final determination of the Plaintiff's appeal against the Debarring Judgment, including any appeal to the Judicial Committee of the Privy Council, regardless of the outcome of that appeal, the present proceedings shall be discontinued on the terms set out in the Schedule to this order."

12.      The Schedule states that the Plaintiff's claim against the Defendant shall be discontinued upon the following terms:

"1. It is hereby accepted that the 2018 Disclosure Order inadvertently omitted any reference to Princess Camilla de Bourbon des Deux Siciles' privilege against self-incrimination. This confirmation is made without any acceptance that the removal of the reference to her privilege against self-incrimination was caused by the fault or intention of BNP Paribas or of any individual representing them. BNP does not oppose the argument that the consequence however of the removal of the reference to the right against self-incrimination is that the contempt of court proceedings brought against her failed to preserve her legal right not to answer questions or provide information if to do so might incriminate her. BNP undertakes not to apply to the court for the enforcement of the contempt of court judgment or any sanction.

2. There shall be no order as to costs ..."

13.      The Court directed that both parties appear on the date fixed for the hearing of the appeal and address the Court as to whether, in light of the settlement, the appeal should be dismissed on the basis that it was now moot between the parties.  The Court also indicated that if it did not dismiss the appeal on that ground it would expect to hear from both parties on the substantive issue in the appeal.  

The parties' contentions

14.      Advocate Mistry, for the Appellant, invited the Court to hear the appeal and determine the legal issue of general importance upon which the Bailiff had granted leave.  He referred us to Supplementary Written Contentions which he had filed on the point.  In those Contentions, he states that there is an argument that the appeal has a genuine practical consequence for the Appellant, inasmuch as the Bailiff's decision might be relied upon as a precedent by some party in proceedings in Jersey other than the present seeking to debar her from pursuit of those in other proceedings.  Advocate Mistry explained to us that the Appellant is currently party to one other litigation in Jersey and might become involved in future litigations here.  However, he accepted that the Appellant's apprehension that the other party to the pending litigation would seek a contempt debarring order in relation to that case was speculative.  

15.      Advocate Mistry relied, as his principal basis for inviting us to hear the appeal, on the power of the Court to hear an academic appeal which raises a point of law of general importance.  He referred us to Viscount v. Attorney General [2017] 1 JLR 133, In the matter of saisies judiciaires in respect of the realisable property of Robert Tantular [2019] (2) JLR 325 and Hutcheson v. Popdog Ltd [2012] 1 WLR 782 for the approach to be taken to academic appeals.  He submitted: (i) that the appeal raises a point of some general importance (namely, the issue identified by the Bailiff when granting leave to appeal); (ii) that the Respondent agrees to the appeal proceeding and will not be prejudiced; and (iii) the Court can be satisfied that both sides of the argument will be fully and properly ventilated.  

16.      Advocate Redgrave confirmed that the Respondents had no objection to the appeal going ahead and that the settlement between the parties had dealt with costs.  He could not say that the outcome of the appeal would have any practical consequence for the Respondents.  They were not involved at all in the other litigation to which Advocate Mistry had referred.  On the basis of the information which Advocate Mistry had given to the Court, there was less of a connection between those proceedings and the contempt and there was a question as to whether the Bailiff's decision did set a precedent which could prejudice the Appellant in that regard.  However, he acknowledged that there may well be a point of general public importance at issue. As to that, the Court had his written contentions on that issue and he was in a position to supplement those orally if required.  

Decision

17.      This Court may dismiss an appeal on the basis that the appeal is, or has become, academic, if the outcome of the appeal can have no practical consequences for the parties to the appeal: In the matter of saisies judiciaires in respect of the realisable property of Robert Tantular, supra, paragraphs 23 and 29.  The Court nevertheless has power to hear and determine an appeal which is otherwise academic, and may do so where a question of general importance arises: Viscount v. Attorney General, supra.

18.      As the Court made clear at paragraph 33 of Viscount v. Attorney General, the power to hear and determine an appeal which is academic should not be exercised unless: (i) there is good reason to do so in the public interest; and (ii) the Court is satisfied that both sides of the arguments will be fully and properly ventilated.  Even if these conditions are satisfied, the discretion to hear such an appeal should be exercised with caution. We observe that Viscount v. Attorney General concerned a question of public law.  

19.      We have not heard submissions on whether the same considerations should apply where the question is one of private law, although the Court of Appeal in England & Wales has accepted that it may hear an academic appeal which raises such a question. In Hutcheson v. Popdog Ltd, Lord Neuberger of Abbotsbury MR stated (at paragraph 15 of his judgment) that, in addition to the two prerequisites which we have already identified, it will generally not be appropriate to determine an appeal which has become academic between the parties unless the respondent agrees to the appeal proceeding or is at least completely indemnified on costs and is not otherwise inappropriately prejudiced.  We agree with that observation, at least where the litigation is between private parties.  The three conditions which we have identified are not exclusive of other considerations which may bear on the question of whether the Court should hear an academic appeal. 

20.      This appeal is now moot between these parties.  The contempt debarring order under appeal was directed to Order of Justice 2022/112.  Whatever the outcome of the appeal, the settlement will result in the proceedings to which the contempt debarring order was directed being discontinued.  It follows that the contempt debarring order will cease to have any practical purpose in the present proceedings when this appeal is finally determined, whether we hear the substance of it or not, and regardless of the outcome.

21.      We have considered whether the Appellant's apprehension that the Bailiff's decision may be relied upon as the basis for a party to seek a contempt debarring order against her in other proceedings provides a basis for concluding that the appeal is not academic.  We note that in In the matter of saisies judiciaires in respect of the realisable property of Robert Tantular, this Court concluded that the direct relevance of the outcome of the appeal to a defence being advanced in related proceedings in Singapore meant that it had a practical impact for the appellants.

22.      In that case, the Court concluded (paragraph 30) that the viability of the defence which the appellants were advancing in the Singapore proceedings in Singapore would be critically affected by the outcome of the appeal before this Court.  There is a material difference in kind between a case such as that, where the decision of this Court would have a direct impact on an issue arising in related and subsisting proceedings and the possibility relied on by the Appellant in the present case that the Bailiff's decision might be relied on against her in other cases for its precedent value.  

23.      In any event, in the present case, there is no pending application for a contempt debarring order against the Appellant, nor has one been threatened.  As Advocate Mistry acknowledged in oral argument, the possibility that the Bailiff's decision will be relied upon in support of an application for such an order is speculative.  In these circumstances, we consider that the present appeal is academic and falls to be dismissed unless we are prepared to hear it in the public interest.  

24.      That said, it was evident from Advocate Mistry's submissions that in seeking, notwithstanding the settlement, to argue the appeal, he hoped to establish that the Bailiff had erred and, accordingly, to forestall any application which might be made for a contempt debarring order against the Appellant, in particular in the other pending proceedings involving the Appellant to which we have referred.  It seems to us that, far from being a reason for us to hear this appeal, this presents a very strong reason why we should not do so - namely, that it would be unfair, in these circumstances, to the other party to that litigation to determine this appeal, to which they are not party and which is otherwise academic. 

25.      We acknowledge that this case satisfies the three preconditions identified in the authorities and which must generally be met before this Court will consider hearing an academic appeal.  In particular, we recognise that the issue upon which the Bailiff granted leave is one of principle, as to which arguments may be made on either side.  These were noted by the Bailiff in his judgment, and it is unnecessary for us to comment further on them save to point out that the facts in the present case are quite remarkable and may well prove to be exceptional. 

26.      The authorities on academic appeals emphasise that it is not enough for an appeal to satisfy the preconditions which those authorities have identified.  Indeed, they stress that the Court should be cautious about exercising its power to hear an appeal which has become academic.  We do not consider that it would serve the public interest for us to hear this appeal, particularly in light of our concern as to whether it would be fair to a party to different proceedings at present on foot and involving the Appellant to determine an issue which is now academic between the present parties but may be relevant to those different proceedings and that other party.  

27.      As we see it, the question of whether a contempt debarring order would or would not be permissible and justified as a matter of discretion is highly fact sensitive.  It would be far better, if the same issue of principle should arise in another case, that it be canvassed fully before the Royal Court and then, should there be an appeal, addressed by this Court not as an isolated and abstract technical point, but in the context of the justifiability of the order in question in the light of the circumstances of that case.  

Authorities

BNP Paribas Jersey Trust Corporation v Siciles C. de Bourbon des Deux [2019] JRC 199.

BNP Paribas Jersey Trust Corporation v de Bourbon des Deux Siciles [2020] JRC 267.

Siciles C. de Bourbon des Deux v BNP Paribas Jersey Trust Corporation Limited [2021] JCA 163.

Siciles C de Bourbon des Deux v BNP Paribas Jersey Trust [2020] JCA 017.

Hadkinson v. Hadkinson [1952] P 285

Orenga de Gafforj v. Orenga de Gafforj [2018] EWCA Civ 2070.

Viscount v. Attorney General [2017] 1 JLR 133.

In the matter of saisies judiciaires in respect of the realisable property of Robert Tantular [2019] (2) JLR 325

Hutcheson v. Popdog Ltd [2012] 1 WLR 782.