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	England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> ABC v DEF [2014] EWHC 3346 (QB) (14 October 2014) URL: http://www.bailii.org/ew/cases/EWHC/QB/2014/3346.html Cite as: [2014] EWHC 3346 (QB)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		14/10/2014

Mr Justice Stuart-Smith:

Introduction

1. On 9 August 2013 the Claimant issued an application to commit the Defendant for contempt of court, alleging that he had breached the terms of an injunction order made by HHJ Seymour QC, sitting as a Judge of the High Court, dated 30 October 2008. The Defendant issued an application on 12 August 2014 asking for the Claimant's application to be struck out or to be prosecuted forthwith. In response, on 9 September 2014 the Claimant issued a further application to commit, alleging further breaches of HHJ Seymour's order.
2. As appears later in this judgment, the factual background is complicated by the long term medical issues facing the Defendant. Because of the potential implications for the Defendant (and also for the Claimant and his family) in the event that their identities were to be disclosed, I have anonymised this judgment and direct that no steps that may lead to the identification of the parties or their respective families should be published without further order.
3. These three applications came before the Court on 17 September 2014. At the end of the hearing I gave my decision, which was that the contempts were proved and that the appropriate sanction was a term of imprisonment of 7 months suspended for 2 years. The Defendant's application was dismissed. This judgment sets out my reasons.
4. I need to provide some factual detail to explain how the case has come about and why it did not reach court for effective determination until September 2014, when the contempts upon which the Claimant relies were committed between May 2013 and March 2014.

The Factual Background

5. The Claimant is a Lebanese national. He lives in London with his wife and four children. His wife is the Defendant's sister. The Defendant lives in the United States, and has done so for some years. The extended family have interests in a group of companies ["the X Group"], which is engaged in construction and particularly active in the Middle East and Africa. The X Group headquarters are in Athens but at least one of the Group companies is registered in London. The Claimant works for the X Group. The Defendant does not: although he has had some employment in the past, he is at present unemployed. It is clear that the Claimant is wealthier than the Defendant and that, over the years, he has supported the Defendant with substantial funding. Regrettably, the Claimant and the Defendant fell out over the funding of a swimming pool and enclosure which were built at the Defendant's home in the United States. This has led to extreme anger on the part of the Defendant and a wish on the part of the Claimant to have no direct dealings with him whatsoever. No further details of the underlying dispute need to be given and it would not be profitable for me to do so: it could only add to the sense of grievance on one side or another, or both.

The interim and final injunctions

6. In April 2008 the Claimant issued proceedings alleging that the Defendant had been harassing him both directly and indirectly. He alleged that the Defendant had been sending abusive emails and making abusive phone calls to the Claimant and his lawyers, publishing derogatory comments about the Claimant, his father and the X Group to X Group Offices in England and abroad, and appearing outside the London offices of the X Group and displaying posters which referred to a website on which he was posting material relating to the Claimant.
7. On 11 April 2008, Sullivan J granted an interim injunction restraining the Defendant from "harassing, threatening, pestering or otherwise interfering with the Claimant by doing acts to cause him harm whether directly or indirectly …" That interim injunction was continued by Pitchford J on 18 April 2011 until trial.
8. The Defendant breached the terms of the interim injunction while remaining outside the jurisdiction. As a result of those breaches, in August 2008 King J issued a bench warrant for the Defendant's arrest should he return to the United Kingdom.
9. The action was tried by HHJ Seymour QC who gave judgment on 30 October 2008. The Defendant was outside the jurisdiction and was not represented. HHJ Seymour QC made findings of fact, which included that during 2008 the Defendant had:

"bombarded [the Claimant]; [the Claimant's wife]; [the Claimant's] employers in London; various other group companies around the world; [the Claimant's] lawyers, Messrs Hannah & Mould, in particular those acting on behalf of [the Claimant] at Hannah & Mould, Mr Hannah himself and his partner Mr McMillan, with a considerable volume of intemperate and offensive correspondence."

Referring to the period after the imposition of the interim injunction, HHJ Seymour QC found that:

"[the Defendant] has continued to adopt the practice of which complaint was made to Sullivan J in the first place. He has continued to send emails and documents by Facsimile transmission to [the Claimant] and to his wife. He has left messages on the voicemail of [the Claimant's wife's] mobile telephone. He has communicated with Messrs Hannah & Mould, in particular Mr Hannah and Mr McMillan, in offensive and intemperate terms. And he has made increasingly more serious threats of violence, including towards [the Claimant's wife] and the children of [the Claimant and his wife]. …"

Having found that the purpose of the communications was to persuade the Claimant to pay the money which the Defendant considered he was entitled to in respect of the construction of the swimming pool and probably additional sums to reimburse the Defendant for losses which he had incurred by unwise investments in the United States, HHJ Seymour QC referred to the possibility that the Defendant might be suffering from a mental disorder. This suggestion had been raised by the Claimant in his evidence, to which I shall return later. In the concluding paragraph of his judgment HHJ Seymour QC said:

"It is obvious from the material which has been put before me that [the Defendant] takes no notice whatsoever of orders of this court. He seems to take the view that as long as he is in the United States he can do whatever he likes without any risk of being found to have acted in breach of orders of this court. His error in that respect may be brought home to him should he be so bold as to visit this jurisdiction again. But it is not immaterial, as it seems to me, that even within the jurisdiction to which he is more obviously amenable, that of the United States, it appears that [the Defendant] seems to have paid no more regard to orders of the court than he does in respect of orders of this court. Unless an injunction is made on a permanent basis against [the Defendant], I am entirely satisfied that it is his intention to continue the course of harassment which he has thus far pursued against [the Claimant]."

10. Accordingly, HHJ Seymour QC gave judgment for the Claimant and made permanent the injunction, backed by a penal notice, in the following terms:

"IT IS ORDERED AND DIRECTED that:

The Defendant … be restrained and an injunction is hereby granted pursuant to section 3 of the Protection from Harassment Act 1997 restraining the Defendant whether by himself his servants or agents or otherwise from pursuing any course of conduct which amounts to harassment, threatening, pestering or otherwise interfering with the Claimant by doing acts to cause him harm whether directly or indirectly, including but not limited to the following acts:

(i) The disclosure, publication, republication, syndication, use, communication or disclosure to any person (other than to legal advisors instructed in relation to these proceedings for the purpose of obtaining legal advice) of material threatening, disparaging or insulting of the Claimant, his wife or father or of [the X Group];

(ii) Making any communication to the Claimant whether directly or indirectly, in writing or orally, by telephone, electronic mail or otherwise howsoever (save for communication with the Claimant's legal advisers solely in relation to the proper conduct of these proceedings);

(iii) Coming or remaining within 300 metres of the Claimant's home address …, or the premises of [the X Group in London];"

The 2011 committal

11. On 1 April 2011 the Defendant informed the Claimant's US lawyers that he was going to return to the United Kingdom. He arrived the next day and was detained at Heathrow. He was then brought to the Royal Courts of Justice pursuant to the bench warrant that King J had issued in August 2008. The committal hearing was first listed before Foskett J but adjourned to 7 April 2011 to give the Defendant time to prepare. On 7 April 2011 Sharp J determined that the Defendant had acted in breach of Pitchford J's order (the interim injunction) in seven identified respects between July and August 2008 and committed him to prison for 4 months.
12. On 28 April 2011 the Defendant appeared before Nicola Davies J and applied to purge his contempt. The Claimant did not oppose the application. It was submitted on the Defendant's behalf that he was a changed man. The Claimant's Counsel re-iterated in clear terms that neither the Claimant nor his wife wanted to have any contact with the Defendant, either directly or indirectly, and that the Claimant did not want to be disturbed by any means of communication from the Defendant. The Judge repeated: "[The Claimant] and his wife do not want to be disturbed or communicated with in any way by [the Defendant]. Is that the position?" Counsel confirmed that to be absolutely right. The Judge then asked the Defendant if he had heard that exchange. He confirmed that he had.
13. Nicola Davies J held that the Defendant had purged his contempt. Before doing so, the following exchange took place:

"MRS JUSTICE DAVIES: … If I were minded to allow you to purge your contempt and allow you to be released today, I want you to understand two things; the first is that the injunction which you breached will continue and that you cannot communicate in any form, directly or indirectly, with the claimant, with his wife who is your sister, with their children or with the companies? Do you understand?

THE DEFENDANT: I absolutely do, your Honour.

MRS JUSTICE DAVIES: It is not here and now and then go outside and change your mind on an impulse or whatever. It is this continues from now until any further order is made. Do you understand?

THE DEFENDANT: Absolutely, I do, your Honour.

MRS JUSTICE DAVIES: Because if you do and you attempt to come back to this country, the same thing is going to happen. You are going to go to prison.

THE DEFENDANT: Yes, I think I learned a lesson the very hard way, your Honour and I apologise to the court. I apologise.

MRS JUSTICE DAVIES: The second point is this and I want you to be absolutely clear about this. You will go back to America tomorrow.

THE DEFENDANT: Yes, Ma'am.

MRS JUSTICE DAVIES: Anything you communicate from America to the Claimant or his family or his companies will breach that injunction. Be under no illusions. Do not try and kid yourself you are doing it from America. If you do it from America or any other country you are breaching the injunction and the same thing will happen when you return to this country. Do you understand that?

THE DEFENDANT: Yes, your honour."

14. There can be no doubt at all that the Defendant understood the significance of what was being said to him and that the injunction remained fully in force. He returned to the United States and has continued to live there in the home provided by the Claimant.

The current allegations of breach

15. Despite the financial support that he has continued to receive from the Claimant, the Defendant has been short of money, not least because he has not been in employment. In May and June 2013, while still in the USA, he again started to bombard the Claimant with emails. The first application to commit lists 78 emails sent between 26 May and 24 June 2014, of which 13 were sent between 26 and 29 May and 65 between 9 and 24 June.
16. I have read all of the emails and adopt the following summary provided by Counsel for the Claimant. The Defendant:

i) Again threatened "peaceful protests" against the Claimant in London;

ii) Abused the Claimant and his family members in revolting terms;

iii) Asserted his willingness to go to prison and defiance of contempt proceedings; and

iv) Threatened the Claimant and his wife with further harassment and violence.

17. It is neither necessary nor desirable to lengthen this judgment with long extracts from the emails. The following extracts give some flavour of what was included. They omit repeated and graphic sexual abuse which was a frequent feature of the emails:

i) "harassment of [the Claimant] starts tomorrow"^[1]

ii) "Subject: Going to make your life a living hell…. Just wait and see what I have planned."^[2]

iii) "I am not going to live this way. I have made my decision. Your client has to accept that I will continue to harass and want to go to jail."^[3]

iv) "Do I need to take up the vitriol a notch to make it a real threat… I am like the Palestinian fighters. [The Claimant] is like the Israeli Army. …"^[4]

v) "I also intend on escalating my direct attacks on [the Claimant] until he takes out a new contempt order and subsequent arrest warrant. I want to make life as miserable for him, as he is doing to me. Oh, and I am tracking his whereabouts, his kids whereabouts, with social media I know where they are at all times …. And when I confront his kids, I am going to tell them simply what a fucking asshole their father is. …. You want to continue to threaten me with contempt, court, police, jail, whatever, then I will retaliate in a bigger way.. wait and see.. live in fear of me every single minute of your life's [sic] …"^[5]

18. During this period, the Defendant gave the impression that he was to visit the United Kingdom briefly, between 27 and 29 May 2013, though in the event he did not do so. The intention of the visit, as appears from the emails, was to apply further pressure upon the Claimant. Not surprisingly, the fact of his visit caused the Claimant and his family fear and distress. On 18 July 2013, Burton J ordered the issuing of a further bench warrant. By an oversight, the order and warrant as executed and served on the Defendant omitted the wording prescribed by CPR 23.10 for orders made without notice. However, on 6 August 2013, the Defendant emailed the Claimant, his wife, and his lawyers, informing them that he had contacted the Royal Courts of Justice and that the Claimant's "application for contempt will be heard in front of the emergency judge in courtroom 37 on Tuesday August 13, 2013 at 11.30 a.m."
19. Faced with the information that the Defendant was going to enter the jurisdiction again and that he had fixed a hearing for 13 August 2014, the Claimant issued his first application to commit on 8 August 2013. Despite the fact that he had emailed his ticket details to say what flight he was on, the Defendant did not attend. The hearing was listed before Singh J and started in the Defendant's absence but, predictably, the Court was not prepared to proceed on an application to commit without his being there and without any clear explanation why he was not present at the hearing he had arranged. Singh J did, however, re-issue the bench warrant, which Burton J had omitted to sign.
20. Things then went quiet. The Defendant was in the United States. The Claimant took the reasonable decision not to attempt to progress the committal application in the absence of the Defendant. In January 2014 the Claimant's solicitors were informed that the Defendant was now represented by solicitors and on 2 March 2014 the Defendant again contacted the Claimant stating that he was about to visit the United Kingdom, though it appears that he then did not do so. However, the Defendant's solicitors obtained public funding and issued their application on 11 August 2014, which was listed to be heard on 17 September 2014.
21. The Defendant arrived in the United Kingdom on 3 September 2014. He was arrested pursuant to the bench warrant and brought before Dingemans J on 4 September. The Judge adjourned the hearing of the parties' applications to 17 September; and he gave the Claimant leave to issue and serve any fresh application to commit the Defendant by 9 September 2014.
22. The Claimant's second application was issued pursuant to the leave that had been granted by Dingemans J. It identified 27 further emails sent by the Defendant between 2 August 2013 and one sent on 2 March 2014. Again, I adopt the summary provided by Counsel for the Claimant. The Defendant:

i) Asserted his defiance at the prospect of going to prison and his intention to continue breaching the orders;

ii) Threatened violence against the Claimant, his wife and representatives; and

iii) Made despicably abusive statements about the Claimant, members of his family and his representatives.

23. It is not necessary or desirable to set out the contents of these emails save to note that in one of them the Defendant said "You will always live in fear of me for the rest of your life …. You will be like Salman Rushdie … never safe."^[6]
24. The Defendant's application notice was issued before the Claimant's second one, and so addressed only the Claimant's first. The Defendant's application notice stated: "The Defendant accepts that he has sent the emails over the two periods and that these were in breach of the Order of the 5 November 2008." In addition, the Defendant made a witness statement on 31 March 2014 in which he said:

"I unreservedly apologise to the Claimant for the 78 emails that were sent to the Claimant in respect of this matter, both in terms of sending the emails to him in the first place, and in respect of the content of them. I fully appreciate that both sending the emails to the Claimant and the content of a number of them were not satisfactory and a breach of the injunction."

The Defendant's Submissions on 17 September 2014

25. The Claimant's first application was supported by affidavits from the Claimant and Mr Hannah. Mr Hannah covered the detail of what had happened; the Claimant said that he entirely agreed with the contents of Mr Hannah's affidavit. The Claimant's second application was supported by a further affidavit from the Claimant, which covered the detail of what had happened since August 2013.

Adjournment for cross-examination of the Claimant

26. As a preliminary submission, the Defendant's solicitor applied for the hearing to be adjourned so that the Claimant and Mr Hannah should attend for cross-examination.^[7] He submitted (correctly) on the authority of Hammerton v Hammerton [2007] EWCA Civ 248, that committal proceedings are to be regarded as a criminal charge for the purposes of Article 6 of the ECHR. Article 6(3)(d) provides that a person subject to a criminal charge is entitled to examine or have examined witnesses against him. On that basis it was submitted that the Defendant's solicitor must be given the opportunity to cross-examine the Claimant and Mr Hannah. Since they were not present, an adjournment should be given for them to attend.
27. I rejected this submission for two principal reasons. First, although the Defendant has had the evidence in support of the Claimant's first application for months and in support of the second application for a week, he had given no indication of any wish to cross examine either the Claimant or Mr Hannah. The relevant procedure is set out at CPR 81.10 and 81.28. CPR 81.10 sets out how to make the committal application and includes, at CPR 81.10(3)(b), that the application notice must be supported by one or more affidavits containing all the evidence relied upon. CPR 81.28(4) provides that the Court may give directions requiring the attendance for cross-examination of a witness who has given written evidence. It is plain from these two provisions that there is no automatic obligation for witnesses who have provided affidavit evidence to attend the committal hearing, for cross-examination or otherwise. That causes, or should cause, no problem because anyone who wishes to cross-examine such a witness may apply for directions requiring the witness to attend. In this respect, the procedure is closely analogous to the procedure in criminal cases, where the prosecution serves the evidence upon which it wishes to rely and the defence identifies those witnesses who it requires to attend. That is a procedure which is compliant with Article 6. What is not permissible is to ambush the bringer of a committal application (and the Court) by demanding in the course of the hearing to cross-examine witnesses who are not there. Such an ambush, if it were permitted, could only increase expense, prevent the application being dealt with fairly and result in an unnecessary additional allocation of court resources at the expense of other cases. It therefore contravenes the letter and spirit of the overriding objective as set out in CPR 1.1.
28. That said, if I had thought that the Defendant would be subjected to a material disadvantage as a consequence of not being able to cross-examine either or both of the witnesses, I would have been likely to allow an adjournment. The stakes were high for the Defendant, particularly in the light of the sentence previously imposed by Sharp J and the clear warning given by Nicola Davies J; and the failure to follow the correct course was clearly a lawyers' error. However, upon enquiry, it became clear that the cross-examination which his solicitor wished to pursue would not and could not have any bearing on the outcome of the committal application. The proposed cross-examination was stated to be as follows:

i) The Defendant wished to cross-examine on when and to what extent the Claimant had been aware of the Defendant's mental health issues. The asserted relevance of this cross-examination was that, if he knew the details of the Defendant's mental health issues, he should have provided them to the court when making his application to commit in order to satisfy the obligation of full and frank disclosure which arises when making an application ex parte. There are three reasons why such cross-examination would be of no relevance. First, it was never anticipated that the Claimant's applications to commit would be heard ex parte or without notice to the Defendant. Second, the Claimant flagged the Defendant's medical health issues clearly in his application and evidence. He exhibited the affidavit that he had sworn for the original proceedings in 2008 in which he said: "… I believe [the Defendant] has a long history of mental health problems and in many cases I find him to be not logical." Third, medical evidence now before the Court, to which I refer later, shows that the Defendant has been and remains responsible for his conduct throughout;

ii) The second identified area that the Defendant wished to explore in cross-examination was why the Claimant had not attempted to protect himself and his family by obtaining an injunction in the United States. Cross-examination on this topic could not have affected the outcome of the hearing. There is no reason why the Claimant should have obtained an injunction in the United States when he already had the benefit of one issued by the Courts of the United Kingdom. As HHJ Seymour QC had noted in 2008, the Defendant was equally liable to disobey the orders of the American Courts as those of the English and no rational explanation was advanced to suggest that there would have been any benefit to the Claimant (or, for that matter, to the Defendant) in obtaining another injunction in another jurisdiction;

iii) The Defendant wished to cross-examine on why the Claimant had not reported the harassment to the police. It emerged in oral submissions that the Defendant wished to contend that, instead of pursuing his remedies through the civil courts as he has done, the Claimant should have involved the police and instigated criminal proceedings against his brother in law. The theory was that, if he had done so, great expense (in the civil courts) would have been avoided because the prosecuting authorities could have dealt with the matter instead. On further enquiry it became clear that the theory included that the prosecuting authorities should seek the extradition of the Defendant from the United States to the United Kingdom so that he could then stand trial for harassment before the criminal courts. To my mind this theory seems to be completely fanciful and to lack any sense of realism at all. I can see no reason why the Claimant should feel obliged to involve the prosecuting authorities in what all agree is a family feud. Quite apart from anything else, I can see no reason why the cost of dealing with the feud should fall on the public purse. It seems to me highly likely that, for that reason alone, the prosecuting authorities would decline to become involved at all; and the suggestion that they would seek to extradite the Defendant from the United States so as to prosecute him lacks any sense of proportion. The submission that the Claimant should be debarred from pursuing his lawful remedies as he has done so unless and until he has attempted to invoke the criminal process seems to me to be irredeemably absurd;

iv) The Defendant wished to cross-examine the Claimant about why he had not listed his committal application for hearing while the Defendant was out of the jurisdiction. The answer is provided by Singh J's reluctance to deal with the committal in the Defendant's absence even when the hearing had been arranged by the Defendant himself. That is a reluctance that would have been shared by any court and, in my judgment, there is no possibility that the outcome of the hearing could be affected by cross-examination on this topic;

v) The Defendant wished to cross-examine on why the Claimant's second application was issued, because some of the emails identified as breaches in the second application pre-dated the issuing of the first. More than six months had elapsed since the last alleged breach (in March 2014) and the issuing of the second application in September and the Defendant pointed to the fact that summary criminal proceedings would have been barred after such a period. I have already outlined the sequence of events that led to the issuing of the second application. Once the Defendant had engaged with the Court and there was a real prospect of an effective hearing in September 2014, it was reasonable to issue a further application identifying additional breaches; and the Claimant's affidavit in support explained that the additional emails that pre-dated the first application had been identified on conducting a detailed review. I can see no basis upon which it could be argued on the basis of answers to cross-examination that the second application was an abuse of the process. It was brought within time and was validly constituted. The fact that criminal proceedings would have been time barred is irrelevant;

vi) Finally, the Defendant wanted to cross-examine the Claimant on his relations with Dr Steinberg, the physician who has provided a medical report for the Court. This is essentially a sub-set of the first proposed area and is irrelevant for the same reasons. The Defendant's solicitor expressly confirmed in the course of his oral submissions that he was not contending that the Defendant was not responsible for his actions by reason of his medical problems.

29. Since the proposed cross-examination could not affect the outcome of the hearing, it followed that the Defendant could not be disadvantaged by not cross-examining the witnesses. That being so, there was no reason to adjourn the hearing for witnesses to attend. So I come to the substance of the Defendant's submissions.

"Abuse of process – delay"

30. The Defendant criticised the fact that over a year had elapsed since the Claimant's first application had been issued before it had come to court. He also criticised the Claimant for issuing his second application more than six months after the events to which they related, by which time summary criminal proceedings would have been time-barred. He submitted that "the Claimant's conduct in this matter … is a paradigm example of how a claimant and their solicitors should not conduct a contempt matter."
31. The reasons for the delay are clear: the Defendant has been out of the jurisdiction for most of the period between August 2013 and now. The first application was issued promptly when the Defendant indicated his intention to enter the jurisdiction by sending his flight details and getting the matter listed on 13 August 2013. If the Defendant had attended, there is no reason to believe that the application to commit would not have been dealt with by Singh J on 13 August 2013 or shortly thereafter. He did not attend and his whereabouts were unknown. As I have already indicated, Singh J's reluctance to deal with the committal in the absence of the Defendant is one that any judge would share and the Claimant was fully justified in not attempting to have it dealt with when the Defendant was out of the jurisdiction. When it was known that he would be returning, in September 2014, the Claimant acted promptly. I reject outright the suggestion that the delay is attributable to any fault (procedural or otherwise) on the part of the Claimant. For the reasons set out at [26(v)] above I also reject the submission that the Claimant's second application was an abuse of the process.

"Abuse of the process – family and technology"

32. The Defendant submits that the Claimant could and should have responded to the continued harassment from the Defendant by blocking his emails. He goes on to submit that because the Claimant did not do so, his incurring of cost (and, now, inflicting cost on the public purse because the Defendant has public funding) renders his applications an abuse of the process. There is no merit in this submission. When the blocking suggestion was first made, the Claimant's solicitors responded that "It is … plainly ridiculous to suggest that our client should have to defend himself against harassment by blocking your client's emails." I agree. The emails should not have been sent; but, given that they were, the Claimant was entitled to know the scale of the threats that were being made, including whether they were addressed to him alone or (as happened) to his wife and children as well. The Defendant's solicitor submitted that "[the issue] is not one that most families would resort to the Court to resolve or continue to return to the Court to resolve." The assertion cannot be proved or disproved as a matter of fact. What can be said with certainty is that the level of harassment fully justified the Claimant in seeking the Court's protection as he has.

"Abuse of process – Hamid principle"

33. The first matter on which the Defendant relies is the Claimant's alleged failure to record the Defendant's serious mental health problems. I have already dealt with this: see [26(i)] above.
34. Next, the Defendant relies upon the failure of the Claimant in the first committal application to produce emails from Mr Hannah to the Defendant sent on 26 May 2013 timed at 4:02 and 10 June 2013 timed at 2:00 and "other emails relating to ongoing conversations with the Claimant's lawyers."
35. The 26 May 2013 email was sent in response to one from the Defendant to the Claimant stating that he intended to arrive in the United Kingdom on 27 May 2013 and that he would be in London "peacefully protesting" on that day. Mr Hannah's response pointed out that emailing the Claimant was a breach of the injunction. He emphasised the gravity of the Defendant's conduct, saying that the sole purpose of the visit was to intimidate the Claimant and his family and that this would not be tolerated. He told the Defendant that the Claimant was notifying the relevant authorities on an urgent basis. No objection can be or is made so far. However, Mr Hannah made two mistakes in the latter part of his email. First, he said "you are prohibited by a High Court Judge from coming here as you well know." Second, he said "Please do not underestimate the seriousness if [sic] this situation. If you arrive in the UK, you will be committed to prison, quite probably for an indefinite period this time given your repeated breach of the Orders in force against you. A judge of the High Court has already made this abundantly clear in her judgment."^[8] The first statement was wrong because the Defendant was not formally prohibited from entering the United Kingdom, though he faced serious consequences if he did arising from his persistent breaches of the orders of the Court. The second statement was wrong because the maximum sentence on committal for contempt was and is 2 years imprisonment. However, Mr Hannah was correct to say that committal to prison was the likely outcome and his reference to a Judge of the High Court making this abundantly clear in her judgment was an obvious reference to what Nicola Davies J had said: see [12] above. It is also to be noted that Mr Hannah owed no duty of care to the Defendant and that there is no basis for any suggestion that he was acting maliciously, as opposed to merely making a mistake.
36. The Defendant's response to Mr Hannah's email was sent to the Claimant and was violently and sexually offensive. The Defendant now submits that the failure to include Mr Hannah's email in the emails attached as evidence in support of the Claimant's first application amounts to an abuse of the process because it "gives a one sided view to the emails of … someone ranting relentlessly at the Claimants." To my mind it does no such thing. When Mr Hannah's email is inserted in the sequence it shows a violent and unjustified ranting in response to an email which was substantially correct despite the errors that have been identified. It makes no overall difference to the scale of the alleged harassment of which the Claimant complains.
37. The second email upon which the Defendant relies was sent to the Defendant in error. The Defendant sent an email to Mr Hannah in which he said he intended to make life miserable for the Claimant and his wife. Mr Hannah intended to send to the Claimant an email which said "please indicate if you want me to respond to this? I was thinking of something low key and conciliatory"; but he accidentally copied in the Defendant as well. The Defendant responded by saying that he was going to get himself arrested, was going to jail and if he was going to be living a miserable life then so was the Claimant.
38. The Defendant makes two complaints. First, he submits that it was removed from the chain although "it must be obvious that such an email caused further agitation to the Defendant in its tone." Second, he submits is that it was sent from a Hannah & Mould email address although by then Mr Hannah was no longer a partner in the firm. I cannot see any basis upon which it could be said that these features rendered the Claimant's first or second applications an abuse of the process. The 10 June 2013 email showed that Mr Hannah was advocating a measured response to the Defendant. The mere fact that the Defendant overreacted does not render the email of such importance that its omission amounts to an abuse of the process.
39. In his submissions the Defendant's solicitor also complained that some of Mr Hannah's statements were made after he had ceased to be a solicitor but stated or implied that he was still in practice. It is not clear on what basis these events should, if proved, prevent the Claimant from proceeding with his applications. There is nothing to indicate that the matters complained of either did have or could have had a material impact on how things developed. It would require very serious conduct on the part of a solicitor to disentitle his client from pursuing an otherwise properly constituted committal application; and, at least normally, the Client would need to be implicated in some way. On the information that is available to the court, the matters of which the Defendant here complains were not of the requisite seriousness and there is no reason to suspect or believe that the Claimant was personally implicated in any way.

Mental Health

40. The Defendant asserts that the Claimant knows in detail about his mental health problems. He complains that the state of the Defendant's health was a material matter which the Claimant was obliged to disclose to the Court and that failure to do so is fatal to the Claimant's applications. The objection fails at the first hurdle because, as I have already said, the Claimant made clear reference to it in his evidence on the applications. It was then for the Defendant to assert, if he wished, that his medical condition either justified his conduct or should be seen as mitigation.
41. In the event, the Defendant has produced two documents from Dr Steinberg. The first is a letter addressed to Burton J and dated 6 August 2013. In it Dr Steinberg discloses that the Defendant

"has a longstanding history of a very treatable form of bipolar illness that manifests itself in bouts of anger and rage, in periods of distorted thinking. … Unfortunately [the Defendant] has not been willing in the past several years to follow through consistently with treatment. His rage and resentment toward family members and others become an excuse and rationale for not following through with treatment. This same rage and resentment have pushed him to cancel appointments and to throw away expensive medications, in fits of pique. As I have tried to impress upon [the Defendant], he is not responsible in any way for his illness; but he is responsible for getting treatment for this illness. …. I am quite confident that [the Defendant] would actually be able to live a very normal life if he were willing to follow through with treatment and medication."

42. Dr Steinberg's second document is a report dated 21 July 2014 which is "in respect of an issue of civil contempt before the High Court in England and Wales." He recounts a history of mental illness going back to 1989. On the Defendant's account, in May and June 2013 he "began a series of horrific and threatening and obscene emails to [the Claimant] and [the Claimant's] attorney – in violation of the restraining order." He was at that time suffering from untreated manic-depressive, or bipolar illness. His illness was untreated because he threw away his medication "in a fit of pique" and refused to follow up treatment with Dr Steinberg. He was also suffering from alcohol abuse and addiction and had a major back problem for which he had been prescribed Diazepam, which created further disinhibitions and contributed to the email and verbal attacks on the Claimant. Prognosis was then extremely poor, but he is at present sober and off valium. In July 2014 he restarted on Lamictal, which renders his prognosis much better while he continues to take it. In Dr Steinberg's opinion, imprisonment would be likely to exacerbate the Defendant's mental health and bipolar illness, intensifying his rage reactions unless he gets appropriate treatment with the expected positive response from Lamictal. It would also have a profound effect on the Defendant's close family.

Failure to obey orders

43. On 19 March 2014 Supperstone J made an order requiring the Claimant to disclose documents by 4 pm on 28 March 2014. The Defendant submitted that the Claimant had breached the order and that this was a reason why his applications to commit should be dismissed. On enquiry, it became clear that the Defendant's solicitor had no basis upon which to assert that the disclosure was given late or to contradict the terms of an email sent by the Claimant's solicitors to the Defendant's at 13:10 on 28 March 2014 which said that they had confirmation that the documents were delivered to the Defendant's solicitors' offices and signed for that morning. There is no substance in the Defendant's submission on this point.
44. On 5 September 2014 Dingemans J gave directions for the present hearing which included that skeleton arguments should be served and filed by 4pm on 16 September 2014. The Court was told that the Claimant invited exchange by email at 3.52pm, whereupon the Defendant's skeleton was served by email and fax at 3.53pm. The Claimant's solicitors did not appreciate that the Defendant was in a position to exchange and had sent his skeleton. As a result, the Claimant's skeleton was served 45 minutes late. No discernable prejudice was identified by the Defendant. In these circumstances, the submission that the Court should decline to hear the applications because of the breach of Dingemans J's order seems to me to have no merit. It fails to balance the seriousness of the applications against the relative triviality of a breach which had no impact upon the fairness of the hearing and which was swiftly remedied.

Summary

45. For the reasons that I have set out above, I reject the submission that the Court should decline to hear the Claimants' applications. The lack of realism shown in advancing the submissions is regrettable, particularly in circumstances where the Defendant has already accepted that his conduct amounted to a breach of the orders of the Court. It is clear that the submissions were generated by his lawyers and I do not in any way hold against the Defendant the fact that unmeritorious abuse points were taken on his behalf. However, time would have been better spent in addressing the real issue, namely what sanction (if any) should be imposed. I turn to that issue now.

Conclusion on Breach

46. There can be no doubt at all that the Defendant's course of conduct as identified by the Claimant in his two applications constituted serious and sustained breaches of the injunction imposed by HHJ Seymour QC. They are made more serious by the fact that the Defendant has previously been imprisoned for similar breaches and that Nicola Davies J left him in no possible doubt about the need to leave the Claimant alone (both directly and indirectly) when she permitted him to purge his contempt in April 2011. To his credit, the Defendant had accepted that his conduct amounted to breaches of the order both when making his witness statement in March 2014 and in his application notice. That concession was (or should have been) inevitable.

Penalty

47. I have very considerable sympathy for the Defendant because of his mental health issues. On the evidence of Dr Steinberg, they provide a significant degree of mitigation; but they do not come close to justifying or excusing what has happened. As Dr Steinberg makes clear, the Defendant has at all material times been responsible for his conduct and the rage that he has undoubtedly felt would have been greatly reduced had he not rejected his treatment, typically in a fit of pique.
48. The Defendant's solicitor submitted that imprisonment was not appropriate in this case. He relied heavily upon the Sentencing Guidelines Council Definitive Guideline for Magistrates' Courts when sentencing for breach of a protection order. On the basis of that Guideline he submitted that this was a case of "more than one breach involving no/minimal contact or some direct contact" for which the appropriate range would be "low level community order to high level community order." I am not able to accept that the Guideline is applicable either directly or by analogy, for a number of reasons. First, the present case does not involve breach of an order imposed by a magistrates' court but by the High Court. Second, when the High Court is dealing with a contempt of Court, its powers are different from those available to the magistrates' court. Third, the Court is concerned not merely with ensuring future compliance but with bringing home to a defendant the seriousness of past breaches. Fourth, the Defendant in this case has shown a sustained disregard for the orders of the Court both before and since the imposition of the permanent injunction by HHJ Seymour QC. Fifth, his previous contempts were regarded as sufficiently serious by Sharp J to merit the imposition of a four month period of immediate imprisonment. Sixth, the 2013-2014 contempts came after the Defendant had been allowed by Nicola Davies J to purge his previous contempts and had been told in the clearest possible terms that any future breaches would be viewed as serious and that he would be sent to prison again if he ignored her warnings.
49. A further, and worrying development, is that in July and August 2014 the Defendant broadened his indirect attack on the Claimant by sending two emails to the wife of one of the Claimant's company's in-house lawyers, she herself being a lawyer in an international law firm. In the emails he abused her husband roundly, describing his behaviour in one email as "reprehensible and immoral" and asking in the other whether he has no shame. What makes these emails particularly worrying is that (as is clear from the terms of the emails) the Defendant knew that by August 2014 the recipient of his emails was on maternity leave; and that he copied the emails to what appears to be all of her colleagues at her law firm whose name begins with the letter A.
50. These emails are not relied on as specified breaches of the injunction, and I do not treat them as proven breaches for the purpose of this committal. But they do show the continuing need for the Court to enforce its previous orders and to prevent further breaches in future.
51. But for two things, a period of immediate imprisonment would be the inevitable result of the Defendant's renewed and contemptuous breaches. However, I am heavily influenced by the report of Dr Steinberg and by the underlying intention of all the orders that have been made against the Defendant to date, namely to protect the Claimant and his family. That intention will best be served if the Defendant reaches a mental state which is robust and stable enough to ensure that he resists the temptation to lash out at the Claimant again. There is some reason to believe that he may now be able to achieve that state and every reason to hope that he will.
52. Two things are clear. First, unless he remains sober and keeps taking his medication his mental health issues will almost certainly overwhelm him again; and, second, to impose an immediate custodial sentence upon him would be likely to lead to a significant aggravation of his current mental state, at a time when he is sober, taking his medication and inching his way back to stability. It therefore seems probable that the balance between reflecting the seriousness of the breaches that have been proved and taking steps that will maximise the possibility of future compliance is to impose a sentence of imprisonment but to suspend it. My intention is to make clear to the Defendant that the Court will not tolerate breaches such as have occurred but, in addition, the Court recognises and has sympathy for the difficulties which he faces and, so far as reasonably possible, wishes to facilitate his recovery both in his own interests and those of the Claimant.
53. For these reasons I decided that the appropriate sanction was and is a term of imprisonment of 7 months suspended for 2 years.

Note 1   9 June 2013, 21:30    [Back]

Note 2   10 June 2013, 06:53    [Back]

Note 3   10 June 2013, 17.27:35 CEST    [Back]

Note 4   11 June 2013, 04:44    [Back]

Note 5   19 June 2013, 3.31 pm.    [Back]

Note 6   3 August 2013, 20:03.    [Back]

Note 7   At one point he appeared to submit that the Claimant’s applications should be dismissed because of the absence of the Claimant and Mr Hannah; but that submission was not pursued.    [Back]

Note 8   Emphasis added.    [Back]