No Contempt for “Spirit of the Order”: An Injunction Respondent Is Liable Only for Breaching the Order’s Terms

Case: FW Aviation (Holdings) 1 Ltd v VietJet Aviation Joint Stock Company [2025] EWCA Civ 1458

Court: England and Wales Court of Appeal (Civil Division)

Date: 14 November 2025

Judges: Males LJ (giving the judgment), with Falk LJ and Baker LJ agreeing

Introduction

This Court of Appeal decision closes off an attempted route to contempt liability based on “circumvention” of an injunction’s spirit or purpose. The central question was stark: can an injunction respondent, who does not do anything the injunction actually prohibits, nonetheless be in contempt for acting contrary to the order’s “spirit and purpose”? The Court’s answer was “no” on the facts and in principle. This is a significant clarification of the boundary between civil contempt (disobedience of an order) and criminal contempt (interference with the administration of justice), and of the meaning of “purpose” in the oft-cited line of authorities beginning with Spycatcher and culminating in Punch and Wolverhampton.

The dispute arose against the backdrop of aircraft leasing litigation between FitzWalter Capital’s vehicle, FW Aviation (Holdings) 1 Ltd (FWA), and VietJet Aviation JSC (VietJet), a Vietnamese airline. Following interim relief in England protecting FWA’s rights to four Airbus A321 aircraft located in Vietnam, VietJet sent letters to Vietnamese public authorities questioning the legality of exporting the aircraft. FWA sought to amend its contempt application—not to say those letters breached the injunction, but to argue they intentionally circumvented it and thereby amounted to a criminal contempt.

The Court of Appeal held that, in “injunction cases,” the legal “purpose” which third parties must respect, and by parity of reasoning the boundary that binds respondents in contempt analysis, is co-extensive with the terms of the order. There is no free-standing contempt for acting against the “spirit” of the order in the absence of doing what the order actually forbids. The judgment reinforces the need for clarity and specificity in injunction drafting and for strict adherence to the principle that contempt must be anchored in the order’s actual terms.

Summary of the Judgment

• The appeal was allowed. The High Court’s order permitting FWA to amend its contempt application to add “criminal contempt” grounds based on the sending of letters (without alleging any breach of the injunction) was set aside.
• Key holding: An injunction respondent cannot be found in contempt for acting contrary to the “spirit” or “purpose” of an injunction if the respondent has not done an act prohibited by the injunction. The court’s purpose is defined by the order’s terms; there is no wider, undefined “spirit” creating liability.
• In “injunction cases,” criminal contempt for third parties requires doing an act which, if done by the respondent, would breach the injunction and thereby interfere with the administration of justice. If even third parties cannot be liable for acts outside the terms of the order, respondents cannot be either.
• The Court stressed procedural fairness, strict construction, and the need for certainty in identifying what conduct is prohibited. Expanding contempt to cover “spirit” would replace certainty with “impressionism.”
• Although Males LJ indicated that the letters might arguably have breached the injunction, FWA expressly disavowed any allegation of breach; on that basis, the proposed new grounds in criminal contempt could not succeed as a matter of law.

Background

The litigation concerned four Airbus A321 aircraft leased by VietJet under a complex financing structure. After Covid-19 related arrears, FitzWalter Capital acquired the original lenders’ and lessors’ positions. FWA sued in August 2022 for possession, and a November 2022 consent order recorded VietJet’s agreement that FWA had rights to possession, custody and control, and consent to de-registration and export. The aircraft were de-registered in Vietnam and re-registered in Guernsey.

In early 2023, Vietnamese shareholder litigation produced an injunction affecting de-registration. In response, on 31 March 2023, FWA obtained an interim order in England restraining VietJet from re-registration steps and from “taking possession of or operating [the Aircraft] either directly or indirectly or otherwise interfering with [FWA’s] right to possession, custody and/or control of the Aircraft.”

VietJet later sent letters to the Vietnamese CAAV, customs, and senior government figures raising concerns about export certification after re-registration in Guernsey. In the liability trial (July 2024), Picken J criticised these letters as pressure tactics and an attempt to impede export. Ultimately, the aircraft were exported by March 2025 and VietJet was held liable for substantial termination sums.

FWA then sought to amend its pre-existing contempt application, proposing new grounds 3(a) and 3(c): not alleging breach of the injunction, but alleging a criminal contempt because the letters were an intentional interference with the administration of justice by attempting to circumvent the injunction’s purpose. Picken J granted permission to amend. On appeal, VietJet argued that, as a matter of law, a respondent cannot commit contempt in respect of an injunction without breaching it.

Detailed Analysis

The precise legal question

Can an injunction respondent be liable for contempt in relation to an injunction without committing a prohibited act—i.e., by acting contrary to the injunction’s “spirit and purpose” alone?

Procedural posture

• This was an appeal against an order granting permission to amend a contempt application. On such an application, the court assumes the applicant’s facts at their highest and asks whether there is a real prospect of success at trial.
• The Court assumed, for argument’s sake, that VietJet’s letters were a deliberate attempt to prevent export, and that VietJet knew the injunction’s terms.
• Critically, FWA confirmed it did not allege breach of the injunction; its case was confined to criminal contempt via “circumvention.”

Precedents cited and how they shaped the decision

1) Civil vs criminal contempt (Arlidge, Eady & Smith; Butterworth’s; O’Brien)

• The Court rehearsed the traditional distinction: civil contempt is disobedience of a court order; criminal contempt is conduct that seriously interferes with the administration of justice. Although terminology can be debated, it remains a useful taxonomy.
• Director of the SFO v O’Brien [2014] UKSC 23: Lord Toulson described criminal contempt as conduct going beyond mere non-compliance and involving serious interference. Males LJ noted the examples given by Lord Toulson—threatening witnesses, disrupting trials, prejudicial publications—illustrate criminal contempt outside the injunction context.

2) The clarity, strict construction, and fairness requirements for injunctions and civil contempt

• Pan Petroleum AJE Ltd v Yinka Folawiyo Petroleum Co Ltd [2017] EWCA Civ 1525; Navigator Equities Ltd v Deripaska [2021] EWCA Civ 1799; ADM International Sarl v Grain House International SA [2024] EWCA Civ 33; Navigator Equities Ltd v Deripaska (No. 2) [2024] EWCA Civ 268: these cases confirm that injunctions must state prohibited conduct clearly and unequivocally; prohibitions are strictly construed; procedural fairness is heightened; and breach must be proved to the criminal standard.
• This body of authority underpins the Court’s refusal to accept a “spirit-of-the-order” contempt: doing so would erode certainty and fairness in the administration of contempt proceedings.

3) The “injunction cases” on third-party criminal contempt: Spycatcher, Punch, and Wolverhampton

• Attorney General v Times Newspapers Ltd (Spycatcher) [1992] 1 AC 191: The House of Lords held that, although a third party is not bound by an injunction as a matter of civil contempt, it may commit criminal contempt where, with knowledge of the order, it does the very act prohibited by the order, thereby wilfully interfering with the administration of justice. Lord Oliver emphasised that the third party’s liability arises not because it is bound by the prohibition but because its act subverts the court’s purpose in the underlying proceedings.
• Attorney General v Punch Ltd [2002] UKHL 50; [2003] 1 AC 1046: This is the key authority on the meaning of “purpose.” Lord Nicholls explained that:
  • “Purpose” refers to the court’s purpose, not the claimant’s litigation strategy.
  • The court’s purpose in making an interlocutory order “means no more than the effect its terms show it was intended to have.” Purpose and terms are co-extensive; clarity for third parties demands that purpose be ascertainable from the order itself.
  • Thus, a third party is liable in criminal contempt when it knowingly does an act the order restrains and thereby significantly interferes with the administration of justice.
• Wolverhampton City Council v London Gypsies and Travellers [2023] UKSC 47; [2024] AC 983: The Supreme Court reaffirmed that non-parties who knowingly act “in the manner prohibited by the injunction” may be found in contempt because they subvert the court’s purpose; the legal analysis differs from being bound as a party, but practically aligns where the act done is the prohibited act.

These authorities converge on a single, crucial point: in “injunction cases,” criminal contempt by a third party arises only where the third party knowingly does what the injunction forbids. There is no broader liability for conduct merely contrary to an amorphous “spirit” or perceived policy of the order. Males LJ applied that logic a fortiori to the injunction respondent itself: if even third parties cannot be liable for acts outside the terms, respondents certainly cannot be.

The Court’s legal reasoning

• First principles of civil contempt require certainty. It would be inconsistent with strict construction and heightened procedural fairness to hold a respondent culpable for acts not clearly proscribed by the order. As Males LJ put it, that would replace certainty with “impressionism.”
• Criminal contempt in injunction contexts is carefully delimited. While an injunction respondent can, of course, commit criminal contempt in other ways (e.g., threatening witnesses), where the alleged contempt is “subverting an injunction’s purpose,” the actus reus must be the doing of an act the injunction forbids. This follows the Spycatcher/Punch/Wolverhampton line.
• “Purpose” of the court’s order is not a free-wheeling concept. Following Punch:
  • The purpose is exactly what the order’s terms show it was intended to achieve between the parties.
  • There is no wider judicial purpose to preclude other conduct not prohibited by the text.
  • Uncertainty for respondents and third parties would otherwise be inevitable.
• Application to the facts: Even assuming VietJet’s letters were sent deliberately to impede export and with notice of the injunction, FWA expressly declined to allege a breach. On that legal footing, the proposed criminal contempt grounds could not succeed. The court noted in passing that the letters might arguably have fallen within “otherwise interfering with [FWA’s] right to possession, custody and/or control,” but it was not for the Court to decide a case FWA chose not to advance.
• Consequent principle: The law of criminal contempt cannot be used to “extend” the injunction beyond its terms. If a claimant wishes to stop certain conduct, it must be prohibited in the order.

Counter-arguments and their rejection

• FWA argued that the essence of contempt law is to prevent usurpation of the court’s function and interference with justice; criminal contempt is “open-ended” and can include any intentional circumvention of an injunction’s objective, even by a respondent. The Court rejected this as overbroad in the injunction context, re-anchoring the analysis in Punch’s co-extensiveness of purpose and terms.
• FWA relied on Lord Toulson’s observation that criminal contempt goes beyond non-compliance; the Court held that while true in contexts like threats to witnesses or trial disruption, it does not transform an “injunction case” into a nebulous “spirit-compliance” regime.

Impact and Practical Implications

1) Draft injunctions to capture the conduct you truly need to restrain

• Orders must be specific. If the claimant wishes to restrain lobbying regulators, sending letters to authorities, public statements, or other forms of indirect pressure affecting the protected right, these should be expressly and clearly prohibited.
• Consider precise formulations: e.g., “The defendant must not, whether directly or indirectly, and whether by itself or by instructing, encouraging or procuring any other person, make any communication to [named authorities] which seeks to impede or delay [specified acts, such as de-registration, export, transfer, certification, or movement of the listed aircraft].”
• Include standard “non-party” and “aiding/abetting/assisting” language directed to “any person with notice of this order,” so third parties with notice are on clear notice that doing the prohibited act risks contempt.

2) Enforcement strategy: do not rely on “spirit-of-the-order” contempt

• This decision forecloses a strategy of pleading criminal contempt against a respondent for “circumventing” an injunction without alleging breach. If you cannot point to a prohibited act, a contempt route will not be available on a “purpose” theory.
• If the facts arguably fit within existing wording (as the Court hinted may have been arguable here), plead breach directly. The practical burden includes proving breach to the criminal standard, but the legal pathway is then clear.

3) Third-party exposure remains anchored to prohibited acts

• Spycatcher/Punch/Wolverhampton remain the touchstones: a third party with notice can commit criminal contempt when it knowingly does what the order restrains, thereby interfering with the administration of justice. But there is no liability for acts outside the terms.
• Financial institutions and media organisations should continue robust “injunction compliance” protocols focused on the text of orders; they are not required to intuit or honor a nebulous purpose beyond the terms.

4) Procedural fairness and legal certainty reaffirmed

• The Court emphasised the “heightened” procedural fairness applicable to contempt, strict construction of prohibitions, and the criminal standard of proof for breach. Expanding contempt via “spirit” would undermine these cornerstones.

5) Law reform context

• The Court noted the Law Commission’s 2024 consultation on contempt. Until any legislative reform, the established common law framework—purpose co-extensive with terms; text governs—remains controlling.

Complex Concepts Simplified

• Civil contempt: Disobedience of a court order or undertaking by a party bound by it. The respondent’s act is a “breach” of a clear prohibition. Proved to the criminal standard.
• Criminal contempt: Conduct that interferes with the administration of justice (e.g., disrupting a trial, threatening witnesses, or, in “injunction cases,” a third party doing the prohibited act with knowledge and intent to impede justice).
• Injunction respondent vs third party: A respondent is bound by the order and can commit civil or criminal contempt for doing what is forbidden. A third party is not bound but may be in criminal contempt if, with notice, it does the act the order restrains and thereby impedes justice.
• Purpose of an injunction: In this context, “purpose” means what the terms show the order was intended to achieve between the parties. It is not the claimant’s broader aims, nor a free-floating “spirit” beyond the text.
• Actus reus and mens rea: “Actus reus” is the prohibited act; “mens rea” is the mental element (knowledge/intent). In injunction-based criminal contempt, the actus reus is doing the forbidden act; the mens rea is knowing the order and intending to impede the administration of justice.

Conclusion

FW Aviation v VietJet crystallises a clear and important rule: in injunction-related contempt, the touchstone is the order’s terms. There is no contempt liability for a respondent who has not performed a prohibited act, even if its conduct can be characterised as attempting to “circumvent” the order’s spirit or purpose. The “purpose” that matters is the court’s purpose as manifested in the order’s language. This aligns the position of respondents with the already-settled framework governing third-party criminal contempt and safeguards legal certainty in a domain carrying severe penal consequences.

The decision has immediate practical consequences. Applicants must draft orders that clearly capture the acts they wish to restrain—including any indirect methods of frustration—rather than relying on an ex post facto invocation of “spirit-of-the-order” contempt. For respondents and third parties, the judgment provides welcome clarity: liability will turn on the text you can read, not on an impressionistic assessment of an order’s supposed wider purpose.

Key Takeaways

• No “spirit-of-the-order” contempt: A respondent cannot be held in contempt for conduct not prohibited by the injunction.
• Purpose equals terms: The court’s purpose in granting an injunction is co-extensive with the order’s wording.
• Third-party criminal contempt in injunction cases requires doing the act the order prohibits, with knowledge and intent to impede justice.
• Strict construction and procedural fairness principles are reaffirmed; contempt risks cannot be expanded by implication.
• Draft precisely: If you need to restrain communications with regulators or other indirect interference, spell it out in the order.

Note: This commentary is for information and analysis. It is not legal advice.