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

The judge gave a short extempore judgment. He referred at the outset to the distinction between civil and criminal contempt, as explained in Arlidge, Eady & Smith on Contempt, 5^th Ed (2017):

‘3.1 Contempts of court have traditionally been classified as being either criminal or civil. In England, the general approach has been that a criminal contempt is an act which so threatens the administration of justice that it requires punishment from the public point of view; whereas, by contrast, a civil contempt involves disobedience of a court order or undertaking by a person involved in litigation. In these cases, the purpose of the imposition of the contempt sanction has been seen as primarily coercive or “remedial”.’

Although the terminology of ‘civil’ and ‘criminal’ contempt has often been criticised, and the practical difference between a finding of civil and criminal contempt is less significant than it once was (see Butterworth’s Law of Contempt, 4^th Ed (2010), para 6.74), it is convenient to continue using these terms and I shall do so in this judgment, while noting that the Law Commission has proposed a new framework for the law of contempt (Consultation Paper No. 262 dated 9^th July 2024, para 2.47).

After describing the proposed new grounds and recording the submission by Mr Alexander Milner KC for VietJet ‘that none of the new grounds has any real prospect of success, in circumstances where, on a proper reading of the Prohibitory Injunction, the matters complained about do not amount to a breach of the injunction made’, the judge came to his decision. The part of his reasoning which came closest to addressing this particular objection was as follows:

‘18. I take the point that Mr Milner makes, namely that at least on the face of the Contempt 3 allegations, there is an allegation of “violation” (to use the word adopted) of the Prohibitory Injunction, yet Mr Lissack has explained orally today that what he has alleged is not a breach of that injunction and, therefore, not a civil contempt, but rather a criminal contempt of the sort to which Arlidge refers. In reality, however, I regard that clarification as being no more than that. The thrust of the complaints made, it seems to me, is quite clear: it is, in very much shorthand, that VietJet and the other two proposed Defendants sought to undermine or interfere with the administration of justice, including the essence of what was ordered through the Prohibitory Injunction, if not the literal substance of that order.

19.

In those circumstances, today’s hearing has no doubt proven helpful both to the Court and to VietJet and the other proposed Defendants, in understanding the case that they have to meet. It is not a reason, however, to regard that case as being insufficiently pleaded, still less as having insufficient merit as to justify its progress to a hearing.’

It was common ground between the parties on this appeal that in this passage the judge did not grapple with the submission which Mr Milner had made, i.e. that unless VietJet had actually breached the injunction, the sending of the Letters could not put it in contempt. Rather, he appears to have understood the objection as limited to a complaint that the allegation made was not clear, which was resolved by Mr Lissack’s explanation of the way in which the case was put. It is clear, however, that the judge correctly understood this explanation, not as being that VietJet had breached the injunction, but that it had acted contrary to its spirit or ‘essence’.