There has been a spate of cases in the past couple of years where contempt of court proceedings have been brought against lawyers. Prompted by the recent decision by Leech J to imprison struck off solicitor Soophia Khan for a further period of 12 months for failing to deliver up her firm’s files to SRA intervention agents, Helen Evans KC examines what is going on. When can contempt proceedings be brought against lawyers, and are they becoming more frequent?
This article explains how contempt proceedings can be used against lawyers in cases involving:
- Refusal to comply with court orders supporting the functions of professional regulators such as the SRA;
- Failure to comply with freezing injunctions;
- Disobeying court rules and orders relating to disclosure;
- Flouting embargoes on judgments;
- Thwarting search orders;
- Giving dishonest evidence; and
- Conducting litigation when not regulated to do so.
The article also explains some of the common pitfalls of these types of case, and how lawyers can defend themselves against them.
Introductory observations
Before looking at the cases in detail, it should be pointed out that different tests apply to different types of contempt. Where there has been a breach of a court order, it is much easier to make out the necessary components of intention than where the contempt is founded on interfering with the administration of justice, or knowingly making a false statement in a court document. Applicants often overlook or underestimate what type of knowledge or intention they will have to prove on a respondent’s part. They also sometimes make errors about what types of contempt proceedings have a permission filter (or fail to realise that even if no permission is required, respondents can apply to strike out contempt applications which fail to meet the benchmark tests).
There is no substitute for careful planning in prosecuting contempt proceedings. The cases below show how applications can fall flat- particularly in cases where there are significant hurdles in terms of proving intention.
Disobedience of court orders
This review starts with cases where respondents have breached court orders- where the ingredients of a contempt allegation are easier to make out.
Refusal to comply with court orders supporting professional regulators
The long-running contempt proceedings by the SRA against Soophia Khan referred to above had their origin in the SRA intervening into her practice in 2021- and various orders made by the court thereafter to assist the SRA in that intervention.
Despite being required to do so when her practice was taken over, Ms Khan did not deliver up all of her papers to the SRA. Instead she transferred her legal work to a new company. In September 2021 the court made an order requiring her to deliver up documents relating to her Leicester office. That was followed by a further order relating to her Wimbledon office. Ms Khan did not comply with either order. Having failed to attend a committal hearing, in December 2021 she surrendered to a bench warrant, was found guilty of contempt and sentenced to 6 months in prison. However, despite this experience Ms Khan still failed to comply with the requirement to relinquish her files.
In April 2021, the SRA applied for and was granted a further order requiring Ms Khan to deliver up her documents. Again, Ms Khan did not obey. In February 2023 she was found guilty of contempt for a second time. Leech J found that:
- Ms Khan had disobeyed the new order in full knowledge of the consequences, and as part of a consistent pattern of defying both regulatory requirements and court orders;
- Ms Khan’s motive was to take a stand, and to defy the SRA.
Against this stark backdrop, it was perhaps not surprising that in a judgment handed down on 10 March 2023, Leech J sentenced Ms Khan to a further prison sentence of 12 months.
The case is a good example of courts being astute to police compliance with their own orders, and to uphold the proper processes of professional regulators.
Failing to comply with freezing injunctions
A second case which involved a solicitor deliberately flouting court orders was Law House v Eilish Adams [2020] EWHC 2344 (in which I acted for the firm which applied to commit its former partner to prison, and its professional indemnity insurers). The case arose out of a fraud perpetrated by a solicitor who specialised in the administration of estates. She engaged in forging grants of probate, “teeming and lading” money between estates, misappropriating funds and deliberately overcharging for her work. Her firm obtained a freezing injunction against her to stop her misuse of client monies. She was also required to provide an affidavit explaining her use of various funds.
The firm later applied to commit Ms Adams to prison for failing to give truthful information about her use of certain client monies, as well as for opening a new bank account and misusing monies that were supposed to be protected by the freezing injunction. Ms Adams belatedly admitted all of the charges. Despite this, she was sentenced to 8 months imprisonment, a sentence which was upheld by the Court of Appeal.
Unsurprisingly, courts are ill-disposed towards solicitors who do not obey freezing injunctions. Ms Adams is not the only lawyer who has been sent to prison in recent years for failing to reveal what has happened to client money. Stephen Jones of Jirehouse was sentenced to prison in 2019, on the application of a former client, for failing to disclose what had happened to misappropriated millions. Zacaroli J remarked that:
Disobeying court rules and orders relating to disclosure
Unless read or referred to in open court, the parties agree or the court gives permission, disclosure in one set of proceedings cannot be used in another: CPR 31.22. Although this rule is well known, the fact that breaching it can lead to contempt proceedings is often overlooked.
In the recent case of SRA v Otobo [2022] 3 WLUK 642, a solicitor came into possession of documents belonging to the SRA in the course of proceedings. In breach of CPR 31.22 he provided them to third parties who subsequently used them in their own claims. The court made an injunction requiring him to deliver up the documents and destroy electronic copies. He swore an affidavit suggesting that he had destroyed the documents. However, he subsequently deployed some of them in Employment Tribunal proceedings and to reopen his case in the Solicitors Disciplinary Tribunal. He was found guilty of contempt and sentenced to 18 months in prison – a sentence which again marked the court’s disapproval of the fact it was a lawyer who had flouted an order.
Flouting embargoes on judgments
A key area where the courts have expressed a concern that its processes are increasingly being disobeyed, including by lawyers, is in relation to embargoes on judgments. Two recent cases illustrate the point, and the risk for lawyers in future.
The first is R (on the application of Counsel General for Wales) v Secretary of State for Business, Energy and Industrial Strategy [2022] EWCA Civ 181. Here, information about an embargoed judgment was provided by a barrister to an internal chambers marketing team and accidentally published before the judgment was handed down. The barrister and chambers in question admitted their error and apologised for it. No application to commit for contempt of court was made, but the Master of the Rolls stated that he had:
“called this case into court because, amongst other reasons, the breaches that occurred here are not alone. I have become aware formally and informally of other breaches in other cases. It seems, anecdotally at least, that violations of the embargo on publicising either the content or the substance of draft judgments are becoming more frequent. The purpose of this judgment is not to castigate those whose inadvertent oversights gave rise to the breaches in this case, but to send a clear message to all those who receive embargoed judgments in advance of hand-down that the embargo must be respected. In future, those who break embargoes can expect to find themselves the subject of contempt proceedings.”
Shortly thereafter, a further embargo breach emerged in The Public Institution for Social Security v Banque Pictet [2022] EWCA Civ 368. In that case, information about a draft judgment was circulated by a solicitor in a WhatsApp group. The solicitor had intended to send the information to 5 partners but inadvertently sent it to a much larger group. When he was alerted to his mistake, he deleted the message so that it could not be read. The matter came to light when the outcome of the appeal was reported in the Kuwaiti media- although no link was established between the above breach and the media reports. No application for contempt was made and in the absence of a connection between the partner’s error and the media reports the court decided not to pursue contempt proceedings of its own motion. However, it can only be a matter of time before legal representatives are pursued by a party for contempt- or the court itself instigates contempt proceedings against them.
Interference with the administration of justice
These types of contempt application are harder to make out than ones based on disobedience of court orders because of the more stringent need to prove intention. Furthermore, some of these types of contempt application require the court to grant permission before they can be pursued- which in turn introduces a public interest test.
Thwarting search orders
Ocado v McKeeve [2022] 2079 (Ch) concerned a “deal lawyer”, Mr McKeeve, who acted for one of the founders of Ocado, who had set up a new company, Today, and was in discussions with Marks & Spencer about a commercial relationship. In the end, M&S decided to partner with Ocado. However, Ocado became concerned about its former founder’s activities and obtained a search order. Mr McKeeve sent a text message to Today’s IT manager, Mr Henery, in relation to a messaging app, stating that he should “burn it”. Mr Henery thereafter deleted the app from his mobile phone.
As Mr McKeeve was not himself a respondent to the search order, the application against him was not for civil contempt but for criminal contempt, manifesting itself as intentionally interfering in the due administration of justice. Multiple sets of alternative charges were formulated against Mr McKeeve. Although Mr McKeeve admitted he had made a serious error of judgment, he disputed that he had acted in contempt.
In the end, many of the charges failed because Mr McKeeve lacked knowledge of what was likely to be on the messaging app. However Mr McKeeve was found guilty of intentionally interfering with the administration of justice by intentionally causing the destruction of documentary material stored on an electronic device.
The case is a good illustration of the high hurdle faced by applicants in terms of proving a respondent’s guilty state of mind for the purposes of criminal contempt, and the need to formulate an appropriate range of charges to cater for different outcomes on that issue. This burden is often overlooked by applicants- and can prove fertile ground for respondents to oppose applications for permission to bring contempt proceedings[1].
Giving dishonest evidence
Frain v Reeves [2023] EWHC 73 (Ch) demonstrates some of the dangers of trying to rely on shortcuts in committal proceedings against lawyers, the challenge of having to prove dishonesty and the impact of the public interest filter.
The case had its origins in a dispute between family members over a 2014 will. The contempt application was made against both the purported beneficiary under that will (“Louise”) and her solicitor in regard to the case put forward at trial. The solicitor respondent had prepared the 2014 will and he gave evidence supporting Louise’s case at trial. The court found that Louise could not prove on the balance of probabilities that the deceased knew and approved the contents of the 2014 will. The judge did not make direct findings of fraud or collusion against Louise and the solicitor, though he did not accept their evidence and referred to a “strong implication of fraud” by Louise.
In the contempt proceedings, the applicants alleged that the solicitor had knowingly or recklessly made false statements in his evidence. The solicitor opposed the application for permission to bring the proceedings against him. He succeeded on three core grounds:
- First, the application relied on inferences that the solicitor was dishonest. The court held that where it was apparent at the permission stage that more than one inference could reasonably be drawn, the applicant could not establish a strong prima facie case to the criminal standard at trial, and permission should not be granted;
- Second, the judge held that the judgment in the underlying proceedings was not admissible against the solicitor because he was a witness rather than a party in those proceedings. As he had been unrepresented at trial, he had not been able to shape the issues, make submissions about his truthfulness or, cross examine anyone else;
- Third, the court found that it is not in the public interest for every case in which it appears that a statement of truth may not have been true to result in an application to commit.
The case is a useful cautionary tale for anyone seeking to bring contempt proceedings arising out of evidence given at trial. It can be a lot less simple than putting a previous judge’s findings of fact before a subsequent court and asking for contempt findings on that basis.
Conducting litigation without authorisation
A case where the contempt application against a lawyer failed because of the lack of appreciation by the respondent that she was doing anything wrong is Baxter v Doble [2023] EWHC 486. There, a disappointed litigant applied to commit a member of CILEX for contempt of court. The respondent CILEX member, Ms Doble, had assisted the litigant’s opponent, Mr Persey, in possession proceedings. Mr Baxter argued that she had contravened s. 12(2) and s. 14(1) of the Legal Services Act 2007 (“the 2007 Act”), which make it a criminal offence for an unauthorised person to conduct litigation.
Ms Doble had previously worked as a paralegal in a firm of solicitors. She had then set up her own practice advising and assisting landlords who were having difficulty with tenants. She contended that she took care to ensure that she did not cross the line into conducting litigation. Ms Doble had previously had interactions with CILEX Regulation, which had disciplined her for sending out letters on her own headed paper in possession cases. Thereafter, she started drafting letters for clients to send out themselves instead. She thought that this meant that her activities did not amount to conducting litigation.
However, the High Court found that some of her work did amount to conducting litigation- in particular, drafting and serving proceedings. Indeed, the court found that Ms Doble and her company “did everything for Mr Persey in relation to proceedings that a solicitor or other authorised person would have done”. However, the court also accepted that Ms Doble was not aware that she was carrying out a reserved activity. The law was unclear, and she had adapted her work after previous interactions with CILEX. She was therefore able to rely on the statutory defence under s. 14(2) of the 2007 Act, in that she did not know and could not reasonably be expected to know that she was conducting a reserved activity. The contempt application was therefore dismissed.
What do these cases tell us?
In the recent batch of cases against lawyers, all of the contempt allegations founded on breaches of court orders succeeded. By contrast, all but one of the multiple charges in the three applications based on interfering with the administration of justice or conducting authorised work failed. This is an extreme example of the difference between the two types of allegation and the need to proceed with care, particularly in the latter type of case.
Contempt claims require great care whatever they are based on. As my colleagues Dan Saoul KC and Usman Roohani have recently explained in their article in March 2023’s edition of ThoughtLeaders4Fire Magazine, the demands on an applicant in contempt proceedings have been clarified and reduced by the Court of Appeal’s judgment in Navigator Equities v Deripaska [2021] EWCA Civ 1799. Nonetheless, contempt proceedings are not to be embarked on lightly. This is the case even where contempt is founded on breach of a court order: the recent case of MBN v McGivern [2022] EWHC 2072 is a good example of what can go wrong when a party pursues contempt proceedings against a solicitor based on ambitious interpretations of the effect of court orders, particularly where their motives appear unduly punitive or where they fail to keep the prospects of the application under constant review as the respondent’s evidence emerges.
© Helen Evans KC of 4 New Square Chambers, 20 March 2023
This article is not intended as a substitute for legal advice. Advice about a given set of facts should always be taken.
Helen Evans KC was appointed silk in March 2022. In November 2021 she was named “Professional Negligence Junior of the Year” and in April 2022 was named “Times Lawyer of the Week.” Helen has prosecuted and defended applications for contempt of court against both solicitors and barristers. She appeared in the High Court and Court of Appeal in Law House v Adams. Helen specialises in professional liability, regulatory fraud and insurance work, with a large part of her practice focusing on lawyers’ liability. She has significant experience of obtaining injunctive relief in frauds orchestrated by professionals.
[1] Permission is not always required: it depends on the type of application. Even where permission is not required, respondents can apply to strike out contempt proceedings against them.
