Thursday Law Report: Costs in contempt of court application

WHERE AN application for committal for contempt of court was a wholly disproportionate response to a trivial or blameless breach of a court order, the court should dismiss the application with costs.

The claimant's application to commit the first defendant to prison for contempt of court was dismissed with costs.

The claimant claimed that the first three defendants, in violation of its copyright and in breach of confidence, had supplied the fourth defendant with certain computer software. The claimant made an application without notice, seeking injunctions restraining further use, and a "doorstep Piller" order, namely an order that, upon service, the first and second defendants should hand over certain materials.

Because the order did not require the defendants to permit entry or a search, no requirement that there should be a supervising solicitor was included. The order was served on the first defendant on a Saturday morning. He was not willing to comply with the order without reading the papers first.

The second defendant complied with the order, in particular by making copies of the computer programs referred to in it, handing those copies to the serving solicitor, and deleting the programs from the hard disk of his computer.

The first defendant subsequently handed copies of some of the programs required by the order to the solicitor, and informed him that he had simply deleted from his computer other programs of which he thought the solicitor had already been given a copy by the second defendant.

However, one of the programs deleted but not copied by the first defendant was in fact an earlier version of that copied and delivered up by the second defendant. The claimant claimed that the first defendant was thereby in breach of the order, and sought his committal to prison for contempt of court.

Whilst accepting that the first defendant had made an honest mistake and was not in any way deliberately flouting the authority of the court, the claimant contended, in reliance on Spectravest v Aperknit [1998] FSR 161, that provided he had intended to do what he did that was enough to prove contempt, and it was not necessary to prove that he had known that he was breaching the order. It was submitted on the first defendant's behalf, in reliance on Irtelli v Squatriti [1993] QB 83, that the decision in Spectravest was wrong, and that there had to be a knowing breach of the order.

Mark Vanhegan (Fox Williams) for the claimant; Richard Arnold (Rakisons) for the first to third defendants.

Mr Justice Jacob said that it was impossible to reconcile what had been said in Irtelli with what had been said in Spectravest, and he felt bound to follow the Spectravest line of authority. The first defendant's conscious deletion of the program without copying it was, therefore, a technical breach of the order, but there could be no question of a penalty's being imposed.

In some cases where there had been a slight violation of its order the court "merely" required the respondent to pay the applicant's costs, but that could still be a draconian punishment, and could amount in substance to a penalty out of all proportion to the "offence".

Contempt proceedings sought the imprisonment of the respondent, and for such proceedings to be instituted, more than a mere technicality had to be involved. In considering the question of costs where a technical but non-blameworthy contempt of court was proved, the court should consider whether the bringing of the application was appropriate, and, if the application was a wholly disproportionate response to a trivial or blameless breach, the court should dismiss the application with costs.

In the present case, the breach would probably not have occurred at all if there had been a supervising solicitor or the claimant had not chosen to serve the order on a Saturday when it was unlikely that the defendants would be able to obtain legal advice. Claimants and the court should carefully consider requiring a supervising solicitor for orders which approximated to full seizure.