Committal for Contempt of Court: Alastair Keith Smart -v- Lisa Matthewman

County CourtCommittal for Contempt of Court

Case Number. L00EC797

In the County Court at Clerkenwell and Shoreditch

7 August 2024

Before:

District Judge Bell

Between:

Alastair Keith Smart

-v-

Lisa Matthewman

Judgment

DJ BELL:

  1. I am concerned today with an application for contempt of court that is being brought by Mr Smart in respect of Lisa Matthewman in relation to breaches of an undertaken given by the respondent to the Court on 16 February 2024. The claimant, Mr Smart, is represented by Mr Persson of counsel and the defendant, Ms Matthewman by Mr Fidler, solicitor/advocate. I thank both gentlemen for their skeleton arguments and submissions. I have also had the opportunity to read the bundle of documents that was submitted by the claimant and by the defendant. Today, neither party has given evidence in light of the admissions made.
  2. Mr Smart commenced a claim under the Protection from Harassment Act 1977 and sought an injunction against Ms Matthewman setting out in those underlying proceedings details as to an affair that they had and actions, he said, that Ms Matthewman had been involved in post the end of that affair. That matter was listed for a hearing on 16 February 2024, and before District Judge Hayes, Ms Matthewman gave undertakings.
  3. There were three undertakings, the relevant one for today was:
    “Not to contact or attempt to contact Mr Smart or any members of his family to include his wife, children, siblings and mother whether in person, via telephone, text message, email, social media platform or in writing in any way.”
  4. This application for contempt was issued on 8 May 2024 in relation to 13 alleged breaches of the undertaking. The matter was listed on 10 June when it came before District Judge Beecham who gave directions for today’s final hearing.
  5. I was informed at the commencement of today that the defendant had agreed to admit 10 of those breaches. Those being:
    a. at 3.20am on 12 April 2024, using a new email address, she emailed the claimant a link to a YouTube video. That was allegation two.
    b. Allegation three: at 3.28am on 12 April 2024, the defendant emailed the claimant the same link to the YouTube videos and asked the claimant to listen to the lyrics.
    c. The fourth allegation: at 3.32am on 12 April 2024, the defendant emailed the claimant with the subject “Brace yourself boy racer, we are going back to court, maybe”. In the body of the email, she said, “Told you you’d meet your match x”.
    d. The sixth allegation: at 2.42am on 14 April 2024, the defendant emailed the claimant to say “Unblock babe, I’m dying darling, please”.
    e. The seventh allegation: at 2.12am on 21 April 2024, the defendant left a voicemail on the claimant’s phone in which she told him that she needed to talk to him.
    f. The eighth allegation: at 8.31am on 23 April 2024, the defendant emailed a link to a recording of a song, “Future” by Pavros Stelar.
    g. Allegation nine: at 8.34am on 23 April 2024, the defendant emailed the claimant a link to a music video of the song “Changing” by Sigma and Paloma Faith. The tenth allegation: at 8.39am on 23 April 2024, the defendant emailed the claimant the same link as in allegation eight.
    h. The 11th allegation: at 8.40am on 23 April 2024, the defendant emailed the claimant a link to the music video for the song “Take Shelter” by Years & Years; and,
    i. at 3.11am on 4 May, the defendant emailed the claimant to a link to a video of the music artist Jacob Lee performing “Demons”.
  6. On the basis of those admissions in respect of those 10 matters, I am satisfied beyond reasonable doubt that the undertaking at paragraph (a) was breached on the dates, times and in the manner set out above.
  7. The issue for me to consider IS what punishment to apply for these breaches. Both legal representatives agree that the breaches merit a custodial sentence and both also agree that it be suspended to run for the period of the undertaking which is until 16 February 2026. Where they differ is in respect of the length of that underlying custodial sentence.
  8. Breach of a court order is always serious. The Court imposes such orders and, in this case, takes very seriously a breach of an undertaking. They are a promise to the Court regarding behaviour. Those undertakings were explained and Ms Matthewman clearly understood at the hearing before District Judge Hayes what they meant.
  9. In considering what sanction to impose, the Court will always take into account the aims to punish for the breach, ensure future compliance with the undertakings (and, of course, this is an undertaking that is to run until February 2026) and rehabilitation.
  10. While both parties included a large number of documents in their respective bundles regarding the affair that the claimant and the defendant had, those are not the issues for me. What I am concerned with are those 10 breaches of the undertaking; that promise to the Court regarding the Defendant’s behaviour. There has been some debate between Mr Persson and Mr Fidler regarding the applicable guidance that I should follow. Mr Persson addressed in his skeleton the case of McKendrick v The Financial Services Authority [2019] EWCA Civ 524 and the guidance of Popplewell J and both have also referred to Lord Justice Birss’s decision in Lovett v Wigan Borough Council [2022] EWCA Civ 1631 and a number of combined cases which, of course, considered antisocial behaviour injunctions and approved that the Civil Justice Committee’s Guidelines and appendix to their report on committal were appropriate for antisocial behaviour. Of course, there is much similarity between breaches of antisocial behaviour injunctions and those relating to protection from harassment undertakings or injunctions.
  11. In respect of both approaches, the Court looks at culpability, harm, aggravating and mitigating factors, any reduction for admissions and, of course, the totality principle.
  12. Dealing with the issue of culpability, the breaches all involve direct attempts by the defendant either by sending emails or voicemail messages to the claimant. As such, they were clearly intentional; an attempt by the defendant to contact him in some manner. They continued even though on 12 April, the claimant’s solicitors sent her a warning letter in which they referred to contact and a voicemail message being on 15 March 2024 albeit I accept that the underlying events of 15 March are not an admission. However, the solicitor pointed out that contact with Mr Smart was a “flagrant and deliberate breach of your undertakings to the Court which my client is well within his rights to enforce”. As such, Ms Matthewman could have had no doubt that if she continued to act in breach of the undertaking, it would be considered as a serious act. There was no reason for her to contact him in any of the manners set out in the 10 incidents that she has admitted and clearly no pressure from anyone else for her to do so. As such, I would classify each of the breaches as a deliberate breach of undertaking (a).
  13. As to harm, I do accept that the repeated attempts to contact Mr Smart in the manner that Ms Matthewman did would cause him a degree of harm. However, none of the communications were addressed to his family and it is not explained to me in the evidence or in the submissions how they have caused his family distress beyond the mere assertion of counsel that they would inevitably do so. While the contents of six of the 10 admitted incidents are, in effect, links to lyrics, a number of the incidents go beyond that, namely incidents four, six and seven. As such, in particular, incident four in which she says “Brace yourself boy racer, we’re going back to court maybe; told you you’d met your match” could be considered a form of threat to him of future actions by the defendant. As such, in relation to those four contempts, the harm, I consider, is greater. They border on “very serious” and clearly go way beyond “little or no harm”.
  14. The incidents occurred less than two months after the undertaking was given and continued for approximately a month with a number occurring on the same day. There does appear to have then been a period of compliance with the undertaking since the application albeit an email was sent to Mr Smart’s solicitors yesterday which contained a letter dated 30 July addressed directly to Mr Smart from the Defendant. I appreciate that that is not a letter that was sent to him directly and it is not relied on as a breach. However, it is, I consider, a further aggravating factor in that she still seeks to contact him albeit through the solicitors.
  15. I am not sure that the defendant really appreciates the seriousness of her breaches. Despite this hearing having been listed today, she sent that email to the solicitors containing the letter to the claimant. It is premised as an apology. Much of it goes back over the previous relationship and goes on to state:
    “I ask you for no more revengeful and vindictive actions on your part in view of me fundamentally seeing through you, seeing who you are really, rejecting and ending it as you messed it up. It was not our time, Alastair and you have much learning to do. I will conclude with a quote from Bob Marley: a man who likes a woman’s love but has no intention of loving her is a coward.”
  16. That document echoes very much the letter that she has written to the Court by way of apology and mitigation. I accept that she apologises and takes responsibility but again, she refers to “Mr Smart has only made his various applications as a cost-generating exercise; the way of continuum to exert control over me”.
  17. Whilst I appreciate that there is some remorse shown and Mr Fidler has, today, stated on her behalf, her remorse, it appears to be caught up in her inability to put behind what happened between these two in the past.
  18. She has submitted a letter from her GP dated 1 August which refers to various health issues saying she has a diagnosis of post-traumatic relationship syndrome and states she suffers from anxiety. She has been referred to various agencies. She is on medication. It is also said that she is attending therapy.
  19. It is also submitted that she has children aged 18 and 13 and the youngest child had a period of illness and that she is the main carer given that she is separated from her husband albeit that in her statement to the Court of 13 July at page 234 of the bundle, it is also stated that her husband is living in the property although they are separated.
  20. Considering the position, either following Popplewell J’s guidelines or those of Lord Justice Birss in Lovett, one comes to the same conclusion in this case. Adopting Lovett, Mr Fidler says it is a case where on that breakdown of culpability and harm, one would place it somewhere between culpability A and B which I with would agree looking at it on either case guidelines. It is though, in considering Lovett a Category 2 harm. I have considered the Lovett approach and the Popplewell guidelines on all these factors, the aggravating and mitigating factors that I have already addressed. It clearly is a case that meets the custodial threshold in light of the breaches. It also meets that given that the aim is of seeking punishment and enforcement of the terms going forward.
  21. The breaches in respect of contempts two, three, eight, nine, 10, 11 and 13, each has a 60-day custodial sentence. In relation to contempts four, six and seven, I consider that these are of a higher degree of seriousness and harm and each bears 100 days. I consider the totality principle. Each will run concurrently. I also reduce the custodial sentence for each by 10% for the making of admissions relayed to the Court today. I do not award any greater reduction than 10% despite Mr Fidler’s submissions that it was said that the claimant did not need to attend and that was relayed to the solicitors yesterday. I have during the course of the hearing referred to a letter that the defendant wrote yesterday evening addressed directly to the Court in which she states he should attend.
  22. Thus, for the first group of contempts, each will have a custodial sentence of 54 days and the second group, 90 days. Each will run concurrently. They will be suspended for the same period as the undertakings are due to last.
  23. I understand from the parties that costs have been agreed in amount and the date of payment.
  24. As contempt proceedings there will, of course, be a transcript produced and provided to the parties and the necessary publication made and, as it is a contempt, there is no requirement for any application to me for permission to appeal if the party seeks to pursue it.
  25. I should stress to Ms Matthewman that judgment of the custodial sentence is suspended on compliance with the undertakings that she gave to the Court back in February. If it comes before the Court again it is up to the judge as to whether that is, in effect, activated.