Sentencing for Contempt by False Evidence: Assault Guidelines Are Inapplicable and the Crosland Framework Governs

1. Introduction

Ajao v Commerzbank AG concerned committal proceedings for contempt arising out of failed Employment Tribunal litigation. Mr Damilare Ajao (the appellant) had pursued discrimination and sexual harassment allegations against his former employer, Commerzbank AG (the respondent), and others, seeking substantial damages. After the tribunal claims were dismissed, the respondent sought permission to bring contempt proceedings on the basis that the appellant had deliberately lied in verified statements and on oath and had fabricated documentary evidence.

Permission (a statutory/procedural gateway for this form of contempt litigation) was granted by Eady J. in respect of 13 allegations (out of 31), reflecting the court’s concern both (i) to avoid committal being misused as a means of harassment or re-litigation and (ii) to protect the integrity of the statement-of-truth regime and the administration of justice.

After a 6-day hearing, Martin Spencer J. found 12 allegations proved to the criminal standard and imposed 20 months’ immediate imprisonment. On appeal, the appellant abandoned his original grounds and advanced amended grounds largely attacking the findings and (in substance) the sentence. The Court of Appeal ultimately (i) overturned one discrete contempt finding (ground 26) because it should not have been treated as proved, and (ii) reduced the committal term to 8 months (less 3 days already served), while maintaining immediate custody.

2. Summary of the Judgment

  • Findings of contempt: Permission to amend grounds was granted on several points, but the appeal succeeded only on ground 26 (the “Nigerian dish/restaurant” allegation), which the court set aside as not properly proved (and apparently not relied upon). All other contempt findings were upheld.
  • Sentence: The Court of Appeal held that the judge erred by using the Sentencing Council Guidelines on Assault as an analogy to assess “harm”. That error appeared to influence the judge’s adoption of the statutory maximum (2 years) as the starting point. Re-sentencing afresh under the correct approach, the Court substituted 8 months’ immediate imprisonment (less time already served).
  • Suspension refused: Despite mitigation (no previous convictions, family circumstances, health, career impact), the court found that appropriate punishment could only be achieved by immediate custody, particularly given the deliberate, sustained deception and its impact on a named individual.

3. Analysis

3.1 Precedents Cited

KJM Superbikes

The judgment cites KJM Superbikes (paragraphs 17 and 24, as referenced by Eady J.) for the proposition that there is a legitimate public interest in treating serious false evidence as a matter of real consequence. The policy concern is systemic: if courts appear to treat statements of truth as “mere formality”, the integrity of civil justice is compromised. This was deployed at the permission stage to justify committal proceedings where there is a strong prima facie case.

Patel v Patel

Eady J. also relied on the formulation by Marcus Smith J. in Patel v Patel emphasising the “obvious and clear public interest” in holding to account those who deliberately lie to courts during litigation. This reinforced the conceptual framing of the committal as a public-interest measure (not merely private litigation tactics), and supported the conclusion that certain allegations—particularly fabrication of evidence and grave allegations against individuals—warranted public judicial determination.

Attorney General v Crosland [2021] UKSC 15

The Court of Appeal adopted the sentencing approach in Attorney General v Crosland [2021] UKSC 15, expressly relying on paragraph 44. Crosland is the modern anchor for contempt sentencing: the court must identify the seriousness of the contempt and craft a penalty that meets the objectives of contempt sentencing, bearing in mind the maximum term (2 years) and ensuring fairness and proportionality. In Ajao, Crosland provided the structure for the Court of Appeal to re-sentence after identifying an error in the judge’s guideline analogy.

Macpherson v Sunderland City Council [2023] EWCA Civ 574

Cited for the appellate standard: the Court of Appeal may intervene where the sentence for contempt is wrong in principle or manifestly excessive. This matters because contempt sentencing involves evaluative judgment; appellate restraint is typical, but intervention is warranted where methodology is flawed (as here, the use of an inapt guideline) or outcome is excessive.

Willoughby v Solihull Metropolitan Borough Council [2013] EWCA Civ 699

The court cited Pitchford LJ’s identification (paragraph 20) of the three objectives of sentencing in contempt cases. While the judgment does not re-quote them in full, their role is clear: contempt penalties are not merely punitive in the ordinary criminal sense; they are designed to uphold compliance with, and respect for, the court’s process and orders, and to mark the seriousness of undermining justice. The objectives supported the Court’s emphasis that deliberate false evidence “strikes at the heart” of the justice system.

Liverpool Victoria Insurance Company v Dr Zafar [2019] EWCA Civ 392

Liverpool Victoria Insurance Company v Dr Zafar [2019] EWCA Civ 392 is a leading authority on contempt by false statements and dishonest evidence in civil litigation. Its citation underscores the established principle that lying verified by statements of truth and false evidence are serious contempts because they corrupt the fact-finding process and risk diverting justice. In Ajao, the court’s approach to immediate custody, and its rejection of suspension, sits comfortably with the deterrent and integrity-protecting rationale frequently emphasised in Zafar-type cases.

3.2 Legal Reasoning

(a) Permission-stage safeguards and public interest

The case illustrates the structural safeguard that committal proceedings in this context require permission. Eady J. approached permission by weighing:

  • the risk of committal being used to harass or to re-litigate concluded matters; against
  • the public interest in deterring and punishing deliberate falsehoods in formal litigation processes.

This permission filtering function was later important to the Court of Appeal’s rejection of “collateral motive/abuse” allegations: a High Court judge had already decided permission was justified and proportionate on the material before her.

(b) Proof, credibility, and appellate restraint on fact-finding

At trial, the judge:

  • directed himself that each contempt allegation must be proved to the criminal standard;
  • made clear credibility findings (accepting Mrs Q and Mr Booth; rejecting the appellant as deliberately untruthful);
  • gave reasons allegation-by-allegation, including on fabrication of diary entries and false oral evidence.

The Court of Appeal largely upheld these findings. It rejected complaints that the judge failed to deal with points that were either (i) addressed in substance, (ii) immaterial, or (iii) not evidence (e.g., witness statements not adduced). The appellate court’s intervention on liability was narrow and principled: ground 26 should not have been treated as proved, particularly where the respondent’s solicitor had indicated it would not be relied upon and where proof to the criminal standard was absent.

(c) Abuse of process / collateral purpose

The appellant argued that the committal was brought for an improper purpose linked to whistleblowing timing. The Court of Appeal rejected this on multiple grounds:

  • Permission had already been granted after a public interest/proportionality assessment.
  • The contempt trial was about whether allegations were proved to the criminal standard, not about employer motives.
  • No evidence of improper purpose was adduced; no application to stay for abuse of process was made at trial.

The reasoning reinforces a practical procedural lesson: an abuse-of-process argument must be raised with evidence and an application for a stay; it cannot later be used as a generalised attempt to undermine proved findings of deliberate falsehood.

(d) The key sentencing holding: inapt guideline analogy is an error of principle

The Court of Appeal’s central “new” clarification lies in its treatment of sentencing methodology:

  • It is legitimate to consider Sentencing Council materials, but the court must use an appropriate benchmark.
  • It was wrong to use the Sentencing Council Guidelines on Assault (apparently grievous bodily harm) to classify harm and culpability for contempts consisting of false allegations and fabricated evidence.
  • The mismatch mattered: the GBH guideline has a much higher maximum than contempt, and the judge’s use of it appeared to push the starting point towards the statutory maximum for contempt (2 years), thereby distorting proportionality.

The Court therefore re-sentenced afresh under Crosland, concluding: (i) the contempts were very serious and crossed the custody threshold; (ii) a fine was inappropriate; (iii) a pre-mitigation term of about 12 months was appropriate; (iv) four months’ credit for mitigation yielded 8 months; (v) suspension was refused because only immediate custody achieved appropriate punishment.

(e) Costs are compensatory, not punitive (in this analysis)

The appellant argued that immediate custody plus a substantial costs order was oppressive cumulative punishment. The Court rejected that characterisation: the judge dealt with committal sanction independently of costs; costs were not treated as a “fine”. While costs consequences may be severe in practice, the Court treated them as incidental to the sanction exercise in this appeal (and there was no separate costs appeal).

3.3 Impact

  • Sentencing discipline in contempt: The decision cautions courts against importing factually/emotionally resonant but legally inapt criminal guidelines (here, assault/GBH) to quantify “harm” in contempt for false evidence. Harm to individuals can aggravate sentence, but the benchmark must remain faithful to the nature of contempt: undermining the administration of justice.
  • Appellate willingness to re-sentence where methodology is wrong: Even where the custody threshold is plainly crossed, an error of principle in selecting a guideline analogue can justify substantial reduction.
  • Immediate custody remains likely for sustained, deliberate lying: The reduction to 8 months should not be read as softening the stance on litigation dishonesty. The court reiterated that deliberate false allegations and fabricated evidence “strike at the heart” of justice and may require immediate custody, particularly where there is no remorse and the conduct is sustained and targeted.
  • Permission-stage filtering reinforced: The case underlines that permission decisions (public interest/proportionality) will heavily constrain later attempts to reframe committal as employer retaliation without a properly-evidenced abuse-of-process application.

4. Complex Concepts Simplified

  • Contempt for false statements / false evidence: A serious wrongdoing where a person deliberately lies in documents verified by a statement of truth or lies on oath/affirmation, thereby interfering with the court’s ability to do justice.
  • Criminal standard of proof: Even though contempt proceedings may arise in civil litigation, the alleged contempt must be proved “beyond reasonable doubt” (the judgment refers to being “sure”).
  • Permission to bring committal proceedings (CPR 81.3(5)): A gatekeeping step requiring a judge to be satisfied (among other matters) that there is a strong prima facie case and that bringing the proceedings is proportionate and in the public interest.
  • Abuse of process / collateral motive: A principle allowing a court to stop proceedings that are being used improperly (e.g., for harassment or ulterior purposes). It generally requires an application (often for a stay) supported by evidence.
  • Suspended sentence: A custodial term that is not served immediately; it is “activated” only if the offender breaches conditions or commits further offences. The court applied the Sentencing Council Guideline on the Imposition of Community and Custodial Sentences and concluded suspension was not justified here.

5. Conclusion

Ajao v Commerzbank AG reaffirms the seriousness with which courts will treat deliberate lying and fabrication of evidence in litigation, particularly where false allegations target identifiable individuals and are persisted in over time. While the Court of Appeal upheld almost all of the liability findings, it delivered an important sentencing clarification: contempt for false evidence should not be sentenced by reference to inapt criminal guidelines such as assault/GBH. Applying the Attorney General v Crosland [2021] UKSC 15 framework, the Court substituted an 8-month immediate custodial term (less time served), holding that immediate custody was necessary to mark the gravity of conduct that undermines the administration of justice.