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

Mr Ali Malek KC for VietJet emphasised that there is no allegation that VietJet breached the injunction, so that the case against it is confined to an allegation of criminal contempt. He emphasised also the serious consequences of a finding of contempt and the need for a high standard of procedural fairness. He contrasted the position of injunction respondents and third parties. Third parties cannot be in breach of an injunction which is not directed against them, and can only be liable in relation to an injunction if (1) they aid or abet the respondent’s breach or (2) they knowingly do an act prohibited by the injunction, thereby subverting the court’s purpose and interfering with the administration of justice. Injunction respondents, on the other hand, either breach the injunction and are in contempt or not. There is no scope for liability in contempt on the basis that an injunction respondent has acted contrary to the court’s purpose without actually breaching the injunction. That is because the court’s purpose is to be found exclusively in the terms of the injunction.

Mr Richard Lissack KC for FWA made his submissions under five headings. In brief summary, these were as follows.

First, he submitted that the purpose of and essential rationale for the law of contempt, so far as injunctions are concerned, is to ensure that there is no usurpation of the function of the court and thereby to prevent any interference with the due administration of justice. The conduct which may amount to a criminal contempt is open ended, extending more broadly than civil contempt, and covering any conduct, including by an injunction respondent, which intentionally impedes the administration of justice by frustrating the purpose of the injunction. In support of the submission that criminal contempt extends more broadly than civil contempt Mr Lissack relied on Lord Toulson’s observation in Director of the Serious Fraud Office v O’Brien [2014] UKSC 23, [2014] AC 1246 that:

‘39. A criminal contempt is conduct which goes beyond mere non-compliance with a court order or undertaking and involves a serious interference with the administration of justice. …’

I note, however, that Lord Toulson immediately went on to say:

‘… Examples include physically interfering with the course of the trial, threatening witnesses or publishing material likely to prejudice a fair trial.’

Second, Mr Lissack submitted that the purpose of the injunction in this case was to protect FWA’s entitlement to possession, custody and control of the Aircraft and to prevent VietJet from interfering with that entitlement.

Third, he submitted that there was a real prospect that FWA would be able to discharge the burden upon it by proving at the trial that VietJet’s conduct in sending the Letters amounted to an interference with the purpose of the injunction (and therefore constituted the actus reus of a criminal contempt) and that they were sent by VietJet with that intention (so that the mens rea would be established).

Fourth, he submitted that if FWA succeeded in proving these matters, all the elements of a criminal contempt would have been established even in the absence of any breach of the injunction itself.

Finally, Mr Lissack submitted that in the light of these principles, it was apparent that the judge had committed no error of law in granting permission to amend.