Factual and Procedural Background
The appellant initiated libel proceedings against the respondent on 18 November 2020 concerning posts on the respondent's social media accounts. A default judgment was entered against the respondent on 6 January 2021. Subsequently, on 8 April 2021, an order for alternative service was made due to the respondent's apparent residence outside the jurisdiction. At a hearing on 28 July 2021, an order was made requiring the respondent to pay damages and granting an injunction prohibiting defamatory publications. There is a dispute over whether this order was properly served on the respondent, who denies service.
Following alleged breaches of the injunction via social media posts in November 2021 and September 2022, the appellant issued a committal application on 13 January 2022, which remains unresolved over three years later. Bankruptcy proceedings were also initiated by the appellant against the respondent due to non-payment of damages, resulting in a bankruptcy order and later discharge.
At a hearing on 5 February 2024, directions were given including dispensing with personal service of the contempt application and permitting amendments to include later posts. The respondent filed a witness statement late, which contained references to legal advice concerning the service and implications of the court order.
The appellant applied for disclosure of the respondent's legal advice and permission to cross-examine on it, asserting waiver of legal advice privilege. The respondent initially claimed the advice was oral with no documents but later acknowledged some advice was written, renewing the disclosure application. The judge gave a detailed judgment on 3 May 2024 addressing the waiver of privilege and the appropriate stage for disclosure.
The judge refused to declare waiver of privilege or order disclosure at the current stage, reserving the possibility of such orders at the sentencing stage if liability is established. Permission to appeal was granted on 28 June 2024.
Legal Issues Presented
- Whether the threshold issues in the committal proceedings include only (i) service of the court order and (ii) breach of that order, or whether the respondent’s knowledge of the order also constitutes a threshold issue.
- Whether the respondent waived legal advice privilege in respect of the issues of knowledge and understanding of the order and contumacy of breach but not in respect of service and breach.
Arguments of the Parties
Appellant's Arguments
- The appellant argued that the respondent’s knowledge of the court order is an essential threshold issue in contempt proceedings, relying on established case law.
- It was submitted that the respondent referred to the content of legal advice to support her case on a threshold issue, thus waiving privilege and entitling the appellant to disclosure and cross-examination at this stage.
- Even if knowledge was not a threshold issue, the appellant contended that the judge erred in limiting the waiver of privilege to the sentencing stage, as evidence relevant to multiple issues should be considered together.
- An additional argument was advanced that disclosure at the threshold stage is necessary for the appellant to assess the proportionality of continuing the committal proceedings.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| PCP Capital Partners LLP v Barclays Bank Plc [2020] EWHC 1393 (Comm) |
Legal advice privilege waiver requires reference to content/gist of advice and reliance on it to advance the case. |
The court applied the principles to determine whether the respondent waived privilege by referring to legal advice in her witness statement. |
| Brennan v Sutherland City Council [2009] ICR 479 |
Clarification on legal advice privilege and waiver. |
Quoted to support the legal framework regarding privilege waiver. |
| Mid-East Sales Limited v United Engineering & Trading Company Limited [2014] EWHC 892 (Comm) |
Fairness requires disclosure if legal advice content is relied upon to advance a case. |
Referenced to underline the fairness principle in disclosure decisions. |
| FW Farnsworth Ltd v Lacy [2013] EWHC 3487 (Ch) |
Knowledge of court order is an essential element in contempt proceedings. |
Appellant relied on this to argue knowledge is a threshold issue; court ultimately rejected this interpretation. |
| Re L (A Ward) (Publication of Information) [1988] 1 F.L.R. 255 |
Principles regarding knowledge and contempt. |
Used by appellant to support argument that knowledge is a threshold issue. |
| Cuadrilla Bowland Ltd and others v Ellis (unreported, 28 June 2019) |
Knowledge of the order is relevant to penalty and may be determined at threshold stage. |
Appellant cited to support early determination of knowledge for proportionality of sanction. |
| Cuciurean v Secretary of State for Transport [2021] EWCA Civ 357 |
Clarification that knowledge is relevant to sanction, not an element of contempt itself. |
Adopted by the court to reject appellant’s argument that knowledge is a threshold issue. |
| Cuadrilla Bowland Ltd v Persons Unknown [2020] EWCA Civ 9 |
Approval of legal principles on contempt and knowledge. |
Referenced to support the legal framework applied by the court. |
Court's Reasoning and Analysis
The court began by considering the principles governing waiver of legal advice privilege, as laid out in PCP Capital Partners LLP v Barclays Bank Plc, emphasizing that waiver occurs only when a party refers to the content of legal advice and relies on it to advance their case on an issue the court must decide.
The judge found that the respondent’s references to legal advice in her witness statement did disclose content rather than merely effects of the advice. However, the court distinguished between two purposes for which the advice was relied upon: (i) to contest service of the order, and (ii) to mitigate any breach at the sentencing stage.
The court held that the first purpose did not justify waiver of privilege because the question of proper service is independent of the legal advice. The second purpose, relating to mitigation and the respondent’s state of knowledge at sentencing, did justify waiver but only if liability was established.
The court accepted that the committal proceedings were effectively to be conducted in two stages—liability and, if liability is found, sentencing. The legal advice privilege waiver and related disclosure were therefore premature at the liability stage.
Regarding the appellant’s argument that knowledge of the order is a threshold issue, the court relied on authoritative case law, particularly Cuciurean v Secretary of State for Transport, which clarified that knowledge is relevant to sanction but not an essential element of contempt. Consequently, knowledge is not a threshold issue for establishing contempt liability.
The court also noted that the appellant had not met the high threshold required to overturn a case management decision, and the importance of protecting legal advice privilege in proceedings where liberty may be at risk outweighed the appellant’s concerns about early disclosure.
Finally, the court urged the parties to consider the future of the litigation, highlighting the absence of further alleged breaches since 2022 and the significant resources consumed by the ongoing proceedings.
Holding and Implications
The court DISMISSED the appeal.
The effect of this decision is that the respondent’s references to legal advice do not constitute a waiver of legal advice privilege at the threshold stage of the committal proceedings. Disclosure of privileged documents and cross-examination on the legal advice are reserved for the sentencing stage, if liability is established. The court reaffirmed established legal principles that knowledge of the order is relevant only to sanction, not to establishing contempt itself.
No new precedent was established; the decision primarily upholds the existing case management discretion and legal framework concerning privilege and contempt proceedings. The court also emphasized the importance of judicial economy and encouraged the parties to evaluate the continuation of the litigation in light of its prolonged duration and limited recent activity.