CC-2023-000006 - [2025] EWHC 1439 (Comm)

On 28 April 2025, in compliance with the directions I had given, the parties filed and exchanged skeleton arguments for the Contempt Application on 9 May 2025.

The Claimant’s skeleton argument addressed the relevant principles and set out the relevant history of the alleged non-compliance with the Disclosure Order. In that respect, the contents were as I would have expected.

The Defendants’ skeleton argument was different. Together with accompanying attachments, it ran to over 100 pages, including a witness statement from the Defendants’ solicitor. In the skeleton, the Defendants alleged, for the first time, that “the Claimants have committed a gross abuse of process in using the threat of continuing these contempt proceedings to obtain disclosures to which they are not entitled”. In consequence, the Defendants argued that the Contempt Application should be struck out pursuant to CPR 3.4(2)(b). The skeleton argument relied upon without prejudice communications including, within the documents exhibited to the skeleton, a transcript of a telephone conversation between the parties’ solicitors on 29 January 2025.

Perhaps unsurprisingly, the arrival of the Defendants’ skeleton argument pack provoked a flurry of (at times, acrimonious) correspondence, including communications with the Court. It was hugely disruptive. Having regard to the fact that the Defendants apparently had in mind the issue of abuse of process at the time of the Leading Counsel Application, the Defendants may well be open to criticism that they should have made a formal application to strike out the Contempt Application well in advance of announcing this in their skeleton argument for the substantive hearing. An Application Notice seeking the striking out of the Contempt Application was not issued until 29 April 2025.

Further, the unilateral decision by the Defendants (without warning to the Claimant) to rely upon, and to send to the Court, without prejudice communications was a breach of the procedure to be adopted in cases like this: see e.g. Berg -v- IML London Ltd [2002] 1 WLR 3271 [25], [35] approved by the Court of Appeal in Cammack -v- Gresham Pension Trustees [2016] EWCA Civ 655; [2016] 4 Costs L.O. 691 [23]-[24] per Sharp LJ.

If, as here, there has been no waiver of the privilege, the party asserting that s/he is nevertheless entitled to rely upon the ostensibly privileged communications must raise the issue with the opposing party and the Court, without disclosing the communications to the Court, so that the issue can be dealt with appropriately. Resolution of a dispute over privilege will usually necessitate a separate hearing, occasionally before a different Judge.

The arrival of the application to dismiss the Contempt Application and its reliance on without prejudice communications (as could have been predicted) caused significant disruption in the week before the hearing, that required the Court to get involved to referee increasingly acrimonious correspondence between the parties. In the absence of agreement as to how matters were to proceed, on 7 May 2025, I directed that the only issue that would be resolved at the hearing on 9 May 2025 would be the issue of whether the Defendants were entitled to rely upon the without prejudice communications in support of their contention that the Claimant’s continued pursuit of the Contempt Application was an abuse of process. It was my assessment that the privilege argument would take up the time available on 9 May 2025. I directed that skeleton arguments on this point were to be filed and exchanged on 8 May 2025.

On 8 May 2025, the Claimant filed a further witness statement from its solicitor, Celine Jones (her tenth). It advanced the Claimant’s argument that Griffiths J’s order had not determined that the Defendants had complied with the Disclosure Order (see [23] above). The witness statement referred to and exhibited further without prejudice communications. Ms Jones also gave evidence about settlement discussions by telephone between the First Defendant and the Chairman of the Claimant between October 2024 and February 2025.

Whilst exhibiting further correspondence, although the day before the hearing, would not have been unfair to the Defendants, Ms Jones had referred to two without prejudice telephone calls that took place, on 7 and 8 October 2024 between her and Mr Farnell, of IPS Law, the Defendants’ solicitors instructed in the main proceedings. This did potentially cause a problem, not least a practical one that the Defendants had instructed separate solicitors, Taylor Rose, for the Contempt Application and the Defendants’ new solicitors had not had an opportunity to seek Mr Farnell’s instructions on Ms Jones’ evidence about the two telephone calls in October 2024. Fairness also suggested that the First Defendant should have an opportunity to answer the allegations of what he was alleged to have said to the Chairman of the Claimant during their settlement discussions to which Ms Jones had referred.

At the hearing, on 9 May 2025, to avoid an adjournment of the hearing, the Claimant agreed that the Court would not admit into evidence what Ms Jones had said in her witness statement about the settlement discussions between the First Defendant and the Claimant’s Chairman. I have therefore excluded this from the evidence I have considered on this application.