CA-2025-000597 - [2025] EWCA Civ 1458

The next point, and this too is basic law, is that (leaving aside cases where the third party aids and abets a breach of the injunction by the injunction respondent, which is not the allegation in this case) a third party to whom the injunction is not addressed cannot breach the injunction, and therefore cannot be liable for civil contempt, because it does not prohibit him from doing anything. A third party can only be liable in criminal contempt for interfering with the administration of justice. As Lord Diplock explained in Attorney-General v Leveller Magazine Ltd [1979] AC 440, 449F:

‘although criminal contempts of courts may take a variety of forms they all share a common characteristic: they involve an interference with the due administration of justice either in a particular case or more generally as a continuing process. It is justice itself that is flouted by contempts of court, not the individual court or judge who is attempting to administer it.’

In cases where the complaint is that a third party has frustrated the purpose of an injunction (‘injunction cases’), the third party can only commit a criminal contempt by doing an act which is prohibited by the injunction. Common examples are where, with knowledge of the injunction, a newspaper publishes something which the injunction respondent has been prohibited from publishing or a bank, also with knowledge of the injunction, deals with funds which are frozen by a freezing order.

Thus in Attorney-General v Times Newspapers Ltd [1992] 1 AC 191 (the ‘Spycatcher’ case) the issue was whether publication of extracts from Mr Peter Wright’s book constituted the actus reus of a criminal contempt. Times Newspapers submitted that it did not: it was not itself restrained by the injunction, although it knew that other newspapers were, so its publication of the extracts was not capable of being a contempt of court. Lord Oliver analysed the submission as follows (217F-218B, emphasis added):

‘This submission involves some analysis of the particular type of contempt with which this appeal is concerned. A distinction (which has been variously described as “unhelpful” or “largely meaningless”) is sometimes drawn between what is described as “civil contempt”, that is to say, contempt by a party to proceedings in a matter of procedure, and “criminal contempt”. One particular form of contempt by a party to proceedings is that constituted by an intentional act which is in breach of the order of a competent court. Where this occurs as a result of the act of a party who is bound by the order or of others acting at his direction or on his instigation, it constitutes a civil contempt by him which is punishable by the court at the instance of the party for whose benefit the order was made and which can be waived by him. The intention with which the act was done will, of course, be of the highest relevance in the determination of the penalty (if any) to be imposed by the court, but the liability here is a strict one in the sense that all that requires to be proved is service of the order and the subsequent doing by the party bound of that which is prohibited. When however, the prohibited act is done not by the party bound himself but by a third party, a stranger to the litigation, that person may also be liable for contempt. There is, however, this essential distinction that his liability is for criminal contempt and arises not because the contemnor is himself affected by the prohibition contained in the order but because his act constitutes a wilful interference with the administration of justice by the court in the proceedings in which the order was made. Here the liability is not strict in the sense referred to, for there has to be shown not only knowledge of the order but an intention to interfere with or impede the administration of justice – an intention which can of course be inferred from the circumstances.’

It was critical, therefore, that the act committed by the third party newspaper, i.e. the publication of extracts from the book, was an act which, if committed by the newspapers which were the injunction respondents, would have been a breach of the injunction and therefore a civil contempt. The same point was made in other speeches in Spycatcher.

Lord Brandon referred to a third party (C) who does an act which, if done by the injunction respondent (B), would have constituted a breach of the injunction by B. He explained that in some cases C’s act would not constitute a contempt of court, giving the example of a trespasser who goes on the claimant’s (A’s) land solely of his own volition and in no way aiding or abetting B. But in other cases it would (see 205G to 207A: emphasis added):

‘These examples … show that the test for deciding whether C has committed a contempt of court is whether C has by his conduct knowingly impeded or interfered with the administration of justice by the court in the action between A and B. … The ground of decision in each of [certain authorities cited] was that the knowing impedance of and interference by C with the administration of justice by the court in the action between A and B, to which C was not a party, was a contempt of court. …

It seems to me, as a matter of principle that, if C’s conduct, in knowingly doing acts which would, if done by B, be a breach of the injunction against him, results in impedance to or interference with the administration of justice by the court in the action between A and B, then, so far as the question of C’s conduct being a contempt of court is concerned, it cannot make any difference whether such conduct takes the form of aiding and abetting B on the one hand or acting solely of his own volition on the other.

It remains to consider in what circumstances conduct by C, in knowingly doing acts which would, if done by B, be a breach of an injunction against him, is such as to impede or interfere with the administration of justice by the court in the action between A and B.’

Lord Ackner also spoke of the third party being ‘liable for contempt by performing an act prohibited by the court’ (215A). Lord Keith of Kinkel agreed with the other speeches (200C).

Similarly in Attorney-General v Punch Ltd [2002] UKHL 50, [2003] 1 AC 1046, Lord Nicholls said that (emphasis added):

‘4. It is a contempt of court by a third party, with the intention of impeding or prejudicing the administration of justice by the court in an action between two other parties, himself to do the acts which the injunction restrains the defendant in that action from committing if the acts done have some significant and adverse effect on the administration of justice in that action: see Lord Brandon of Oakbrook in Attorney General v Times Newspapers Ltd [1992] 1 AC 191, 203D, 206G-H, and, for the latter part, Lord Bingham of Cornhill CJ in Attorney General v Newspaper Publishing plc [1997] 1 WLR 926, 936. Lord Phillips MR neatly identified the rationale of this form of contempt, at [2001] QB 1028, 1055, paragraph 87:

“The contempt is committed not because the third party is in breach of the order - the order does not bind the third party. The contempt is committed because the purpose of the judge in making the order is intentionally frustrated with the consequence that the conduct of the trial is disrupted”.’

The point was repeated in the judgment of the Supreme Court in Wolverhampton City Council v London Gypsies and Travellers [2023] UKSC 47, [2024] AC 983 (emphasis added):

‘36. We have focused thus far on the question whether an injunction can be granted against a non-party. As we shall explain, it is also relevant to consider the effect which injunctions against parties can have upon non-parties.

37.

If non-parties are not enjoined by the order, it follows that they are not bound to obey it. They can nevertheless be held in contempt of court if they knowingly act in the manner prohibited by the injunction, even if they have not aided or abetted any breach by the defendant. As it was put by Lord Oliver of Aylmerton in Attorney General v Times Newspapers Ltd [1992] 1 AC 191, 223, there is contempt where a non-party “frustrates, thwarts, or subverts the purpose of the court’s order and thereby interferes with the due administration of justice in the particular action” (emphasis in original). …

41.

There is accordingly a distinction in legal principle between being bound by an injunction as a party to the action and therefore being in contempt of court for disobeying it and being in contempt of court as a non-party who, by knowingly acting contrary to the order, subverts the court’s purpose and thereby interferes with the administration of justice. Nevertheless, cases such as Attorney General v Times Newspapers Ltd and Attorney General v Punch Ltd [2002] UKHL 50; [2003] 1 AC 1046, and the daily impact of freezing injunctions on non-party financial institutions (following Z Ltd v A-Z and AA-LL [1982] QB 558), indicate that the differences in the legal analysis can be of limited practical significance. Indeed, since non-parties can be found in contempt of court for acting contrary to an injunction, it has been recognised that it can be appropriate to refer to non-parties in an injunction in order to indicate the breadth of its binding effect: see, for example, Marengo v Daily Sketch and Sunday Graphic Ltd [1948] 1 All ER 406 at p 407; Attorney-General v Newspaper Publishing plc [1988] Ch 333, 387-388.’

There is no basis here for concluding that a third party can be liable for a criminal contempt consisting of an act which is contrary to the spirit (or essence or purpose) of an injunction but which does not involve doing anything which the injunction prohibits. Rather, in injunction cases, there will only be the actus reus of a criminal contempt by a third party if there is both (1) the commission of an act which, if done by the injunction respondent, would be a breach of the injunction and (2) an interference with the administration of justice in the action between the claimant and the injunction respondent.

Mr Lissack emphasised the references in these authorities to conduct which subverts the purpose of an injunction. But it is important to understand that the purpose of the court in granting an injunction is neither more nor less than to prohibit the conduct which the injunction restrains. There is no wider purpose of preventing conduct which the injunction does not restrain. This was clearly explained by Lord Nicholls in in Attorney General v Punch Ltd: