Threshold Determinations and Legal Advice Privilege Waiver in Contempt Proceedings: The Aslani v Sobierajska Principle

Introduction

The case of Aslani v Sobierajska ([2025] EWCA Civ 391) before the England and Wales Court of Appeal (Civil Division) involved a complex dispute arising from contempt proceedings. Central to the dispute was the appellant’s claim that a committal application for alleged contempt—stemming from a contested service of an order originally passed in libel proceedings—was procedurally flawed. The litigation revolves around multiple intertwined issues including the proper service of the Saini J order, breaches of that order, and the waiver (or not) of legal advice privilege.

On one side, Dr Aslani (the appellant) is progressing with legal actions initiated in connection with libel and contempt matters, while Ms Sobierajska (the respondent) has raised issues related to the service of court orders, her understanding thereof, and the implications of legal advice she received. The litigation has further been complicated by prior bankruptcy proceedings and case management decisions, with both parties having significantly diverging positions on the evidential role of legal advice.

Summary of the Judgment

The judgment, delivered by Lord Justice Baker with concur from NICOLA DAVIES LJ and LEWIS LJ, primarily addressed an appeal against a case management decision taken in contempt proceedings. The core issues pertained to whether Ms Sobierajska had waived her legal advice privilege in relation to two separate passages in her witness statement, where she referenced legal advice concerning (1) the service and binding effect of the Saini J order, and (2) her understanding of the order’s terms and their consequences.

Lord Justice Baker held that:

With respect to paragraph 29 of the witness statement – which involved her defense based on an alleged failure of proper service of the court order – her reference to legal advice did not amount to a sufficient waiver of legal advice privilege. This is because the reference sought to challenge the service but did not “advance” the appellant’s case.
In relation to paragraph 68 – where Sobierajska relied on legal advice to explain her state of mind regarding the understanding of the order – waiver of legal advice privilege might become applicable at the sentencing stage, but it would be premature to declare any waiver at the threshold stage.
The judgment confirmed that the threshold issues for the committal application were limited to whether the Saini J order was properly served and whether any act of non-compliance occurred. The aspect of the respondent’s knowledge of the order was deemed relevant only later, at the sentencing phase.

Ultimately, the appeal was dismissed with the direction that any order for disclosure or a declaration of waiver of privilege should only be considered if and when the sentencing stage is reached.

Analysis

Precedents Cited

In reaching his decision, Lord Justice Baker invoked several precedents:

The decision of Waksman J in PCP Capital Partners LLP v Barclays Bank Plc [2020] EWHC 1393 (Comm) established a dual requirement for waiving legal advice privilege — the advice must be referred to in terms of its content rather than its mere effect, and that reference must be used to support a legal argument before the court. This principle is foundational for assessing whether a reference constitutes a waiver.
The judgment also cited Brennan v Sutherland City Council [2009] ICR 479 (as referenced by Elias J) for its discussion regarding the scope and limits of legal advice privilege.
Furthermore, authorities such as Proudman J’s judgment in FW Farnsworth Ltd v Lacy [2013] EWHC 3487 (Ch) and Booth J’s decision in Re L (A Ward) (Publication of Information) [1988] 1 F.L.R. 255 were referenced by counsel to emphasize that a litigant’s knowledge of the order is immaterial at the threshold of a contempt inquiry.
Warby LJ in Cuciurean v Secretary of State for Transport [2021] EWCA Civ 357, drawing on earlier decisions such as Cuadrilla Bowland Ltd v Persons Unknown [2020] EWCA Civ 9, reinforced that for civil contempt, the “service” of an order is essentially equivalent to “notice,” and that mere knowledge of the order is not an independent threshold element for establishing contempt.

Legal Reasoning

The court’s legal reasoning centered on a bifurcated analysis of the respondent’s references to legal advice:

First, it assessed whether the reference to legal advice in paragraph 29—regarding service of the order—was sufficient to constitute a waiver. The judge concluded that if the order had been improperly served then the issue would exist independently of any legal advice, and any reference would not “advance” her defense on this crucial threshold issue.
Second, the analysis of paragraph 68 clarified that the reference to legal advice concerning the respondent’s understanding of the order would justify a waiver only in the context of determining the appropriate penalty. The court underscored that the waiver was permissible when it directly advanced an element vital at the sentencing stage.

The judgment precisely delineated the stage at which evidence may be admitted: at the threshold stage the focus must remain confined to whether (a) the order was properly served and (b) a clear act of non-compliance occurred. Matters concerning the respondent’s state of mind and her knowledge of the order, although relevant, are reserved for later consideration if the breach is established.

Impact on Future Cases and the Area of Law

This judgment sets a clear precedent regarding the timing and scope of waiver of legal advice privilege in civil contempt proceedings. The delineation between pleadings on service, breach, and later considerations of intent and knowledge is likely to influence future case management and evidentiary rulings. Specifically:

Litigants seeking to rely on legal advice as part of their defense must be mindful that references to such advice will only be considered a waiver if they are directly tied to issues the court must resolve at the threshold stage.
Courts in future may adopt a similarly cautious approach, limiting disclosure of privileged documents until a later stage in the proceedings (i.e., the sentencing stage), thereby protecting litigants’ rights while still ensuring fairness.
Case management orders in contempt proceedings are likely to incorporate a split-hearing methodology—explicitly distinguishing the determination of liability from considerations of appropriate sanctions—as a way of safeguarding privileged communications.

Complex Concepts Simplified

Several complex legal concepts play a central role in this appeal:

Legal Advice Privilege: This principle protects confidential legal communications between a client and their lawyer. However, if a party makes a reference to the actual content (rather than simply the effect) of the legal advice to support a legal argument, they may effectively waive this protection, subject to strict conditions.
Threshold vs. Sentencing Stage Issues: The judgment distinguishes between issues that must be resolved at the initial determination of whether a contempt has occurred (such as proper service and compliance) versus issues that become relevant only when determining the harshness or appropriateness of a penalty (e.g., the respondent’s state of mind and knowledge).
Service of a Court Order: Essentially, service here means that the court order has been effectively brought to the attention of the respondent. The judgment emphasizes that whether the order was properly “served” is fundamental and should be determined independently of any legal advice received.

Conclusion

In summary, the Court of Appeal’s decision in Aslani v Sobierajska provides a seminal clarification on the application of legal advice privilege within contempt proceedings, particularly in distinguishing between evidence admitted at the threshold determination of liability versus at the sentencing phase. The court’s insistence on a clear demarcation — wherein only matters strictly pertaining to service and compliance should be decided upfront, and the waiver of privilege only recognized when directly relevant to the penalty — reinforces the twin objectives of fairness and judicial economy.

The judgment not only resolves the specific appeal at hand but also establishes an important procedural and evidentiary precedent that will undoubtedly influence the management of future contempt cases. Litigants and practitioners must now navigate these principles with heightened awareness of the timing and scope of disclosure requirements surrounding privileged communications.