THE HONOURABLE MR JUSTICE NICKLIN Approved Judgment
MBR Acres Ltd -v- McGivern
“One particular form of contempt by a party to proceedings is that constituted by an intentional act which is in breach of the order of a competent court. Where this occurs as a result of the act of a party who is bound by the order … it constitutes a civil contempt by him which is punishable by the court at the instance of the party for whose benefit the order was made and which can be waived by him. The intention with which the act was done will, of course, be of the highest relevance in the determination of the penalty (if any) to be imposed by the court, but the liability here is a strict one in the sense that all that requires to be proved is service of the order and the subsequent doing by the party bound of that which is prohibited.”
[57] The proceedings in Cuadrilla Bowland Ltd -v- Persons Unknown [2020] 4 WLR 29 were conducted on that basis. It was common ground that the ingredients of civil contempt were those identified in FW Farnsworth Ltd -v- Lacy [2013] EWHC 3487 (Ch) [20] (above) but it was understood that proof that these were met would not necessarily establish knowing disobedience to the order. HHJ Pelling QC addressed the possibility that “ the respondents did not, in fact, know of the terms of the order even though technically the order had been served as directed ”. He identified this as an issue “ relevant to penalty if that stage is reached ”, observing that in such a case “ it is highly likely that a court would consider it inappropriate to impose any penalty for the breach… ”: [2019] E30MA3131 [14]. On appeal, this Court endorsed this as a “ sensible approach ”: Cuadrilla (above) [25]. [58] These authorities indicate that (1) in this context “ notice ” is equivalent to “ service ” and vice versa ; (2) the Court’s civil contempt jurisdiction is engaged if the claimant proves to the criminal standard that the order in question was served, and that the defendant performed at least one deliberate act that, as a matter of fact, was non-compliant with the order; (3) there is no further requirement of mens rea , though the respondent’s state of knowledge may be important in deciding what if any action to take in respect of the contempt. I agree also with the Judge’s description of the appellant’s argument below: “ it replaces the very clear rules on service with an altogether incoherent additional criterion for the service of the order. ” But nor am I comfortable with the notion that service in accordance with an order properly made can be set aside if the respondent shows that it would be “ unjust in the circumstances ” to proceed. This is not how the Court saw the matter in Cuadrilla , nor is it a basis on which good service can generally be set aside. It also seems to me too nebulous a test. [59] Ms Williams may have harboured similar misgivings, as the argument she advanced at the hearing was not the same as the written ground of appeal. She accepted that the requirements of knowledge and intention in this context are limited in the ways I have indicated; but she invited us to find that the requirement of notice calls for more than proof that the order which it is sought to enforce was duly served. Her submission was that, the aim of service being to bring the nature and contents of the order to the attention of the respondent, it must be incumbent on the applicant to establish in addition (and to the criminal standard) that the steps taken were in fact effective for that purpose, or could reasonably be expected to be so. In support of this argument, Ms Williams referred us to Cuadrilla [57]ff. She cited the words of Lord Sumption in Cameron -v- Liverpool Victoria Insurance Co Ltd
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