Oliver v Shaikh

Factual and Procedural Background

On 10 December 2019, Judge A granted summary judgment in favour of the Plaintiff on a claim for harassment against the Defendant. The Defendant was found responsible for posting abusive and harassing material about the Plaintiff on various websites, primarily the website "Judges Behaving Badly" ("the JBB Website"), which was controlled by the Defendant. An injunction was granted to restrain the Defendant from further harassment, requiring removal of specified material from the JBB Website and other online platforms.

The Plaintiff contended that the Defendant breached this injunction and sought committal for contempt of court via an Application Notice dated 3 June 2020 ("the Committal Application"). The Defendant’s appeal against the initial order was refused on 12 June 2020. The injunction included prohibitions on publishing information concerning the Plaintiff on the internet and mandated removal of specified posts by 17 December 2019.

The Defendant was served with the injunction and was aware of its terms. Prior to the Committal Application, the Plaintiff’s solicitors had complained of breaches, which the Defendant denied, asserting lack of responsibility for the publications and referencing ongoing appeals. The Defendant also posted material on the JBB Website purportedly requesting removal of posts but disclaiming control over the site.

The Committal Application identified 27 alleged breaches, grouped into failure to remove existing material and posting new material. The hearing was initially set for 26 June 2020 but was limited to directions and held remotely, as the court was not satisfied that a substantive hearing was appropriate remotely. The Defendant failed to attend this hearing, citing being abroad and personal reasons but refused to participate even by telephone.

The substantive hearing was scheduled for 27 July 2020, with arrangements for the Defendant to attend remotely. The Defendant again failed to attend physically or remotely and did not provide a telephone number for contact. The Defendant submitted written evidence denying all allegations and challenging the Plaintiff’s evidence, asserting ongoing appeals and requesting a jury trial and a change of venue. The Defendant also sought to adjourn the committal hearing, citing lack of legal representation, being abroad, dissatisfaction with court safety measures, and alleged bias due to the Plaintiff’s judicial role.

The court considered the Defendant’s non-attendance and adjournment request, the procedural history, and the nature of the alleged breaches, before proceeding to hear the Committal Application in the Defendant’s absence.

Legal Issues Presented

1. Whether the Defendant breached the terms of the injunction granted on 10 December 2019 by continuing to publish or failing to remove harassing material about the Plaintiff on various websites.
2. Whether it was appropriate for the court to proceed with the committal hearing in the Defendant's absence, given the Defendant's failure to attend and participate despite notice and opportunity.
3. The extent to which the Defendant controlled the JBB Website and was responsible for the postings alleged to breach the injunction.
4. The appropriate procedural steps and safeguards in committal proceedings relating to breach of a harassment injunction.

Arguments of the Parties

Plaintiff's Arguments

• The Defendant was responsible for posting a large volume of abusive and harassing material on the JBB Website and other sites.
• The Defendant breached the injunction by failing to remove specified material and by posting new material in violation of the order.
• The Defendant was properly served with the injunction and committal application and was aware of the proceedings and consequences.
• The Defendant’s refusal to participate in hearings and failure to provide valid reasons justified proceeding in his absence.
• The Defendant’s denials were unsupported by evidence and contradicted by the similarities in authorship style and content between the Defendant’s known writings and the material on the JBB Website.
• The Defendant’s attempts to delay proceedings and make unrealistic demands demonstrated bad faith and justified refusal of adjournment.

Defendant's Arguments

• The Defendant denied responsibility for many of the postings alleged to breach the injunction.
• The Defendant asserted ongoing appeals challenging the original injunction and alleged procedural irregularities involving the Plaintiff and Judge A.
• The Defendant claimed lack of evidence provided by the Plaintiff supporting the allegations beyond mere accusations.
• The Defendant sought a jury trial, a change of venue, and a delay to secure legal representation, citing the Covid-19 pandemic and personal health concerns.
• The Defendant argued that some postings were made by third parties and that he lacked control over the JBB Website and other online materials.
• The Defendant refused to attend hearings physically or remotely, citing being abroad and personal reasons without providing detailed explanations or contact information.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Lamb v Lamb [1984] FLR 278	Exceptional nature of proceeding with a trial in the absence of a party in quasi-criminal contempt proceedings.	Referenced to emphasize the need for justification before proceeding in the Defendant’s absence in the committal hearing.
JSC BTA Bank v Stepanov [2010] EWHC 794 (Ch)	Application of criminal principles by analogy to civil contempt proceedings regarding absence of defendant.	Applied to guide the court’s approach in deciding to proceed with the hearing despite Defendant’s absence.
JSC BTA Bank v Solodchenko [2011] EWHC 1613 (Ch)	Further guidance on proceeding in absence and adjournment considerations in contempt proceedings.	Supported the court’s decision to hear liability in absence and consider penalty separately.
Barnet LBC v Hurst [2003] 1 WLR 722	Public interest in prompt and decisive dealing with contempt and enforcement of court orders.	Reinforced the court’s emphasis on swift resolution and the importance of compliance with injunctions.
M v M (Contempt: Committal) [1997] 1 FLR 762	Principles surrounding contempt proceedings and committal for breach of court orders.	Supported the court’s approach to contempt and committal applications.
Calderdale and Huddersfield NHS Foundation Trust v Atwal [2018] EWHC 961 (QB)	Checklist of factors for deciding whether to proceed with a trial in the absence of the defendant in contempt proceedings.	Adopted as a framework for assessing the appropriateness of proceeding in Defendant’s absence.
Sanchez v Oboz [2015] EWHC 235 (Fam)	Further elaboration on considerations for proceeding in absence in civil proceedings.	Used to supplement the factors considered in Calderdale and Huddersfield.
Pirtek (UK) Limited v Jackson [2018] EWHC 1004 (QB)	Requirement to advise respondents of legal aid availability and opportunity to obtain representation in committal proceedings.	Applied in assessing procedural fairness and Defendant’s opportunity to obtain representation.
Barnet LBC v Hurst (Practice Note) [2002] EWCA Civ 1009	Principle that committal proceedings should be dealt with without delay to uphold the authority of court orders.	Supported the court’s refusal to adjourn and the need for expedition in committal cases.
Lomas v Parle [2003] EWCA Civ 1804	Emphasis on prompt determination of committal proceedings related to breach of court orders.	Reinforced the court’s approach to timely resolution in contempt cases.

Court's Reasoning and Analysis

The court began by confirming the procedural validity of the injunction and committal application, noting that the Defendant had been properly served, notified of the allegations, and made aware of the consequences of non-compliance. The Defendant’s failure to attend hearings, despite being offered multiple remote participation options, was deliberate and without adequate justification.

The court considered the Defendant’s submissions and witness statement, finding that while the Defendant denied responsibility for many postings, the evidence, including striking textual similarities between a letter authored by the Defendant and the key text of the JBB Website, established beyond reasonable doubt that the Defendant was the Webmaster and responsible for the material on the JBB Website.

The court carefully examined each alleged breach, distinguishing those proven to the criminal standard from those not proven. It found 20 of the 27 alleged breaches proved, including failure to remove specified material and posting new harassing content. The Defendant’s denials were rejected where contradicted by evidence and the Defendant’s own admissions.

Regarding proceeding in the Defendant’s absence, the court applied established principles from case law governing quasi-criminal contempt proceedings. Factors such as the Defendant’s deliberate non-attendance, adequate notice, opportunity to respond, and lack of credible reasons for absence supported the decision to proceed. The court acknowledged the need to balance fairness with the public interest in enforcement of court orders and timely resolution.

The court also addressed the Defendant’s requests for adjournment, jury trial, change of venue, and delay pending appeal to the European Court of Human Rights, finding these to be unsubstantiated attempts to delay proceedings and contrary to the overriding objective of expeditious justice.

Finally, the court indicated it would hear the question of penalty separately, following the approach of affording the Defendant an opportunity to address mitigation, consistent with safeguarding fairness despite proceeding in absence on liability.

Holding and Implications

The court FOUND THE DEFENDANT IN CONTEMPT OF COURT for breach of the injunction order in respect of 20 identified breaches. The Defendant’s denials that he controlled the JBB Website were rejected, and the Defendant was found responsible for the ongoing publication of harassing material despite the injunction.

The court refused the Defendant’s application to adjourn the committal hearing and proceeded in his absence due to deliberate non-attendance without valid reasons, having afforded multiple opportunities to participate.

The court ordered a further hearing to determine penalty, providing the Defendant with an opportunity to make submissions on mitigation and warning that continued failure to comply with the injunction (including removal of the JBB Website and related material) would be a serious aggravating factor.

No new precedent was established by this decision; it applied well-established principles governing contempt proceedings, injunction enforcement, and procedural fairness in the context of committal applications.