Neutral Citation Number:  EWHC 1985 (KB
Case Number: QB 2015 005162 (formerly HQ15D03649)
In the High Court of Justice
King’s Bench Division
26 July 2023
His Honour Judge Pearce sitting as a Judge of the High Court
(previously known as Specialist Hygiene Solutions)
- JUDGE PEARCE: This is my judgment on the order I make further to my findings last week that the defendant is in contempt of court in three respects by breaching an undertaking that he gave to this court in August 2013. The three breaches, as I found proved, are as follows:
a. that on a date unknown, believed to be or shortly before 7 November 2022, he spoke and/or disclosed in the course of a recorded interview with Ms Cherise Seucharan of or for Canadaland the words set out in paragraph 30.1 of the grounds upon which the committal application is brought and therefore caused them to be published.
b. that on a date unknown, believed to be on or shortly before 2 December 2022, he spoke and/or disclosed in the course of a recorded interview with Mr Shaun Attwood the words set out in paragraph 31.1 of the grounds, thereby causing them to be published;
c. that on 23 December 2022, he spoke and/or disclosed in the course of a recorded and live streamed interview with Mr James De Fiore the words set out in paragraph 31.6 of the grounds, and thereby caused the same to be published.
- I adjourned the question of the appropriate order to be made consequential upon those findings in order to give the defendant a further opportunity to attend court or at least to engage with the proceedings. Sadly, he yet again has not done so.
- The first matter I have to consider is whether this order has been served. I have a certificate of service, amplified by a witness statement from Ms Katie-Jade Church, dated 25 July 2023. I am satisfied from that statement that service has been affected in accordance with the alternative means of service which have been directed in this case. I remind myself that for reasons dealt with in particular by Mr Justice Eyre in his judgment of 20 March 2023 that there is compelling evidence the defendant has sought to evade service and to go to ground in order to frustrate the application before the court.
- Second, I consider whether this case should proceed in the absence of the defendant. Of course that is a matter that requires reconsideration at every hearing but I have reminded myself of all of those matters that were raised before me last week as to why I should proceed in his absence. They are summarised within my judgment last week. Nothing has changed since then. Most particularly there is no reason to think that if this application were adjourned, there would be any greater engagement, whether by way of attendance or otherwise by filing material with the court than there is today. Frankly, an adjournment would serve no purpose whatsoever. In those circumstances, without going through each of the individual factors but reminding myself of those factors, I am satisfied that it is consistent with the overriding objective, and in the interests of justice that I proceed in the absence of the defendant.
- I turn then to deal with the substance of the order consequent upon my findings.
- The court has powers on having found a contempt to pass a custodial sentence. That might be immediate or suspended or to fine for unlimited amount. The maximum custodial term set out in section 14(1) of the Contempt of Court Act is a term of two years. The custodial sentence may be suspended. That is likely to be appropriate in particular where it is thought that it would probably secure compliance with a court order and/or where there is cogent personal mitigation.
- I am reminded within the very helpful skeleton argument of Mr Reed for the claimant of the principles considered by the Court of Appeal in Wright v Rogers  4WLR 9 at paragraph 30 where Lord Justice Edis explained the need for the court to approach dealing with contempt in a structured fashion rather similar to that of the criminal court in sentencing. The process is not a mechanistic one but requires the court to consider first of all the culpability of the defendant; secondly the harm caused; and third the purpose of the order.
- The purpose of an order in the case of a civil contempt is both to punish for breach to secure rehabilitation, but also to seek to secure compliance with the court order. In Farnsworth v Lacy  EWHC 3487, Mrs Justice Proudman set out 11 factors which were likely to be of relevance: whether the claimant is prejudiced by virtue of the contempt and whether the contempt is capable of remedy; the extent to which the contemnor has acted under pressure; whether the breach of the order was deliberate or unintentional; the degree of culpability; whether the contemnor was placed in breach by reason of the conduct of others; whether the contemnor appreciates the seriousness of the breach; whether the contemnor has co-operated; whether the contemnor has admitted his contempt and entered a guilty plea; whether the contemnor has made a sincere apology for his contempt; the contemnor’s previous good character and antecedents; and any personal mitigation advanced on his behalf.
- As Mr Reed points out in other cases, other factors have been considered relevant and those factors might include: whether the breach is ongoing; whether the contemnor has purged his contempt; whether he accepts responsibility; whether he shows remorse; whether any reasonable excuse is put forward to the court.
- I consider first the harm caused by the defendant’s breach of the undertaking. The information which the defendant has put in the public domain through the interviews that constitute a breach of his undertaking involves serious and damaging allegations about the claimant company, about its directors, and about its product, Deprox. Having caused those interviews to be placed online, the evidence before me is that as of last week, they had not been taken down. I am told that that remains the case now. Given the defendant’s non-co-operation, it would seen almost certainly that he has no intention to remove the material. Accordingly, the breaches are ongoing.
- As I discussed with Mr Reed, the hard evidence before the court is that only a limited number of people have listened to and accessed one of the interviews. However, it is not known in fact how many people may have done so, for example by way of download; nor, as Mr Reed points out, can one know who it is who has accessed the interview. Many people might have no interest whatsoever in the claimant and its products; other people might have a lot of interest in it and it is perfectly possible that those with whom the claimant might otherwise do business have listened to the material or watched the third of the interviews and have been influenced in their commercial dealings with the claimant as a result thereof. One simply cannot know.
- In my judgment, then, that represents a breach of the undertaking which is perfectly capable of having caused serious harm to the claimant in a context where there is little the claimant can do to put right matters either historically or in respect of the continuing breach that arises from the fact that the interviews remain accessible, although the extent of actual harm is unknown (and probably unknowable).
- There is no evidence that the defendant has acted under any pressure. On the contrary, all of the evidence suggests he is exercising his own free will and, dealing with the third factor, that he has deliberately and intentionally breaching the undertaking, presumably with the beneficial of causing harm to the claimant and/or its directors. It is particularly notable that, having breached this undertaking previously and been subject to a suspended sentence of imprisonment made by HHJ McKenna on 30 April 2019.
- The question of culpability arises. In this respect I note the report of Dr Teresa Connolly. That report, dated 21 April 2019, was before the court on the previous occasion on which the defendant was found to be in breach of this undertaking. Within her careful report, Dr Connolly looks at the defendant’s attitude to the breaches that were before the court on the last occasion. I note, for example, at paragraph 15.4 that although Mr Marsh expressed strong feelings about the claimant company, he also said he had moved on in life and gave material which might lead the reader to think that a repetition of the breach of the undertaking was unlikely. Indeed, at paragraph 22.3 of the report, Dr Connolly set out some protective factors which she thought might make it less likely that there would be any further breach of the court order.
- I note also the diagnoses made by Dr Connolly within the report and her assertion, which I perfectly accept, that diagnoses of autism and depression can lead to consequences upon decision making, see paragraph 20.2 of the report.
- Sadly, however, the previous order of His Honour Judge McKenna committing the defendant for prison for eight months, suspended for two years, did not have the effect that was desired. That order was made in 2019 and at the very least, it might be said that the defendant sat out the period of the suspended order before further breaching the undertaking. But, he comes before the court now with a further series of breaches which even taken individually are at least as serious as that which was alleged previously. Now he can no longer have any credit for being a person of good character who had not previously breached the order.
- The defendant’s culpability is, in my judgment, of a high level. He was solely responsible for his actions in this regard. There is no suggestion that he was placed in breach by the conduct of others. There is sadly no real suggestion that he appreciates the seriousness of the breach. It is apparent from the material before the court that from an early stage, the defendant wished he had not given this undertaking, but he did do so when he had legal advice. He could, one would think, be under no misapprehension as to the seriousness of matters, given what Judge McKenna said on the previous occasion, including the fact that a further breach would be likely to lead to a lengthy custodial sentence.
- Nevertheless, he has acted in breach of the undertaking and all of the evidence is that he shows no respect for the court order or for the undertaking he has given to the court. He has not co-operated, he has not pleaded guilty, he has not apologised. He has, as I have indicated, not able to say he is of good character, given the previous order. The breaches continue. There is no attempt to purge the contempt, nor any acceptance of responsibility or show of remorse. There is certainly no suggestion of a reasonable excuse.
- In all the circumstances, given the previous breach of the order then, this is a serious contempt which in my judgment undoubtedly lies at the upper end of the range that this court has to deal with. The only significant mitigating factor I can see which is the one I have indicated already is in fact an unknown, which is the extent to which the offending material has in fact been disclosed to others. There is no credit to be had for a guilty plea, even at the last minute.
- I have considered first of all whether a financial penalty could be justified. In my judgment, this breach is too serious for that sentence. I turn to consider a custodial sentence. In my judgment, the least custodial sentence consistent with the seriousness of this matter is one of a period of 18 months’ imprisonment.
- The third question I have considered is whether in the circumstances of this case I can suspend that order. Given the defendant’s wholescale non-co-operation, coupled with his previous breach, I am entirely satisfied that it would be wrong to suspend the sentence, and therefore the order is one of 18 months’ imprisonment to take effect immediately.
18 July 2023
- JUDGE PEARCE: On 25 August 2013, an order was made staying a claim brought by the claimant against the defendant. The terms of the stay included the defendant giving an undertaking “whether by himself, his servants, his agents or otherwise howsoever not to speak, disclose, publish, or cause to be published to any person or entity anywhere in the world and in any medium any information, whether public or private, true or false, defamatory, disparaging or otherwise, of and concerning SHS, its employees, directors, servants or agents or its Deprox product, save that in the event that any person or entity approaches the defendant for any information of and concerning the claimant. The defendant may state only that he is subject to this undertaking.” (SHS was the abbreviated version of the claimant as then named, Specialist Hygiene Solutions Limited.)
- In 2019, the defendant was found to be in breach of that undertaking and was committed to a prison for a period of eight months, suspended for two years. He attended and engaged with that committal application and part of the basis upon which the judge suspended the order of committal was the material before the judge to suggest that the defendant was apologetic and regretful for his breaches and that he did not intend to breach the undertaking again. Sadly, he once again finds himself before the court for the alleged breaches as set out in the application notice.
- In the meantime, the claimant’s name has changed from Specialist Hygiene Solutions Limited to Inivos Limited. It continues to be involved in the business of supplying the decontamination product called Deprox that is referred to in the undertaking.
- The three breaches now alleged are as follows:
a. Contempt 1: The Defendant, on a date unknown, believed to be on or shortly before 7th November 2022, spoke and/or disclosed in the course of a recorded interview with Ms Cherise Seucharan of or for Canadaland the words set out at paragraph 30.1 of the Grounds, and thereby caused the same to be published.
b. Contempt 2: The Defendant, on a date unknown, believed to be on or shortly before 2nd December 2022, spoke and/or disclosed in the course of a recorded interview with Mr Shaun Attwood the words set out at paragraph 31.1 of the Grounds, and thereby caused the same to be published.
c. Contempt 3: The Defendant, on 23rd December 2022, spoke and/or disclosed in the course of a recorded and live-streamed interview with Mr James Di Fiore the words set out at paragraph 31.6 of the Grounds, and thereby caused the same to be published.
- It will immediately be noted that so long as it is proved that it is the defendant who said these words that he would be appearing to refer to the claimant and its products, and these words would appear on their face to be three further clear breaches of the injunction order.
- It is also to be noted from the third alleged breach, assuming person who is identified as Mr Marsh is indeed the defendant, that he is well aware of the change in name of the company to that which it is currently called.
- I have had in advance of this hearing the opportunity to read all the material identified most helpfully by Mr Reed KC within his skeleton argument, including most particularly the four affidavits, numbered 4, 5, 6 and 7 of Mrs Charlotte Harris; the affidavit of Mr Ray Hoffmann from the previous committal proceedings, the affidavit of Mr Robin Tiffen from the previous proceedings, and statements of Ms Rebecca Ryan and Ms Ellie Fayle. I have also read the judgment of Mr Justice Eyre and I have, during the course of this hearing this morning, had an opportunity to speed read Her Honour Judge Walden-Smith’s judgment from 26 April 2023, as well as to note a material point within the transcript of those proceedings.
- As I indicated to Mr Reed, I have been able to listen to and identify on the various recordings that have been produced the passages that are said to amount to a breach of the order.
- In the case of each of the recording, having listened and watched it, it seems to me that the person who is speaking is clearly identified and is going by the name of Mr Richard Marsh. He clearly has some detailed knowledge of the business of the claimant and, more particularly, has strong opinions on it. The evidence of Ms Harris confirms that in her opinion the person in each of the recordings is the same person who is only visible on one, but his relatively distinctive voice can be heard on all three, and she expresses the opinion that is one and the same person as the Mr Richard Marsh who is the defendant.
- Given the coincidence of all of those features, with the fact that Mr Richard Marsh has previously admitted a breach of this order by the publication of material of like allegation, I am entirely satisfied that Mr Marsh is the person on each of those recordings.
- However, before I proceed to consider the committal application, I need to determine two issues. First of all, whether there has been proper service of the material relevant to this application, namely the notice of application, the associated material, and the orders of Mr Justice Eyre and Her Honour Judge Walden-Smith, which between them establish the ground for this hearing to take place today and, secondly, whether I ought to proceed in the absence of the defendant.
- Mr Justice Eyre’s judgment is of some considerable interest because he sets out a history of the defendant using aliases and seeking to evade service. In summary, at paragraph 12 of his judgment, he indicated that he was satisfied of the following six matters:
(1) That there were substantial grounds for believing that the defendant is adept at avoiding service;
(2) that the defendant is motivated to avoid service;
(3) that one of the ways in which the defendant achieves those two objectives is by the use of aliases;
(4) that all conventional forms of attempting service are unlikely to bear fruit;
(5) that there are substantial grounds for believing that the Muhammad Sohail Facebook page is in reality an alias for the defendant and that service on that page will bring the proceedings to the attention of the defendant and
(6) that the methods proposed of the Facebook messenger message and the posting of a comment are unlikely to achieve that objective of bringing proceedings to the attention of the defendant and that there are no other reasonably practical ways of doing so.
- In order to give effect to that judgment, Mr Justice Eyre made an order for permitting service of this application by alternative means, namely by sending a bit.ly link by Facebook Messenger to the Facebook account in the name Muhammad Sohail and by leaving a posting on that Facebook account to the extent that the link had been sent out.
- Subsequently, when Her Honour Judge Walden-Smith gave directions for this hearing and dealt with the making of a final injunction, she repeated that order for service by alternative means.
- I have read the witness statements served within this case, particularly from Ms Ryan and Ms Fayle. I have read the certificate of service and I am satisfied formally that service has been achieved in accordance with the application notice.
- Moreover, I note from the evidence of Ms Harris before the court that it would appear that the Muhammad Sohail account remains active and although there has been no response to the service of this material upon the defendant, whether by attending court or otherwise by communicating, nevertheless it appears to me far more likely than not that the defendant has actual knowledge of this hearing, as well as the fact that he has been formally served in accordance with the directions that have been given.
- I turn then to consider the question of proceeding in absence. I am grateful, again, to Mr Reed KC for his careful approach to this, in particular in his skeleton argument, setting out the factors in the case of Sanchez v Oboz  EWHC 235, a family case in which Mr Justice Cobb considered other cases in other jurisdictions, particularly criminal cases, where courts have determined whether proceedings should go ahead in the absence of a party.
- I make the fairly obvious point that where a person appears to be set upon not co-operating with the court and not attending, then it is highly likely to be the case that the court will take the view that its process should not be frustrated so long as the person has been given every opportunity to attend and so long as there appears to be nothing beyond their control that prevents them attending. There are many jurisdictions where non-attendance and non-co-operation by litigants is sadly common.
- Considering in detail the nine factors, they can be identified as follows:
a. whether the defendant has been served with the relevant documentation;
b. whether he has had sufficient notice to enable him to prepare for the hearing;
c. whether there is any reason for his non-appearance;
d. whether, by nature of the circumstances, he can be taken to have waived his right to be present, in other words, does he know that this hearing is going ahead and choose not to attend?
e. whether an adjournment is likely to secure his attendance or at least secure somebody to represent him.
f. extent of the disadvantage to him in not being able to present his account of events;
g. whether undue prejudice would be caused to the applicant by delay;
h. whether undue prejudice would be caused to the forensic process if the application proceeds in the absence of the defendant; and
i. the overriding objective, including the obligation on the court to deal with matters justly, including dealing with matters expeditiously and fairly.
- Going through those in turn, I have indicated already that I am satisfied that the defendant has been served.
- Second, he has had, as Mr Reed rightly says, a generous amount of time since the hearing before Her Honour Judge Walden-Smith, on 26 April, to prepare for this hearing today, on 18 July.
- Third, he has not proffered any reason for non-attendance. There is no reason to think that there is something preventing him attending at court today.
- Fourth, in terms of the question of waiver, Mr Reed draws my attention to that passage from the judgment of Mr Justice Eyre. It is, on the evidence before the court, quite clear that the defendant has a history of evading service and, in the absence of any other good explanation for his non-engagement with these proceedings, it is overwhelmingly likely that his non-attendance today is simply part of that continuing course of conduct.
- Fifth, would an adjournment secure his attendance? As Mr Reed says: if there were an adjournment, there is simply no reason to think that Mr Marsh would attend any adjourned hearing.
- Sixth, the disadvantage to him in not being able to present his account of events. There always is at least possibly a disadvantage to the non-attending party, since it may be that he has something to say that has not been anticipated. But, on the face of it, these breaches do appear to speak for themselves. As Mr Reed says, it is by no means obvious what would more clearly be achieved in terms of the question of the committal application, at least so far as liability issues are concerned, by his being present.
- Seventh, is the effect of the delay on the claimant such as to cause undue prejudice? There can be no doubt that continued delay creates expense for the claimant which may well not be recovered by it.
- Eighth, is there any undue prejudice to the forensic process? That really follows closely on the sixth point. As Mr Reed points out, in the previous committal proceedings, whilst the defendant initially denied the breach on a variety of grounds, ultimately, having been cross-examined, he admitted his breach. It is not really obvious that he could do anything different here.
- Finally, I consider the overriding objective. Of course, an application that may involve somebody being sent to prison is a serious matter where one would very much wish the person who may be committed to prison to be present. Nevertheless, if he chooses not to engage, then the overriding objective seems to me to point in the direction of not allowing him to frustrate the process of the court, but rather proceeding in his absence.
- In those circumstances, I am entirely satisfied that it is appropriate to proceed in the absence of the defendant.
- Mr Reed has drawn my attention to the procedural requirements of CPR part 81:
a. That the application be supported by affidavit. It is.
b. That the nature of the alleged contempt is clearly set out. It is very clearly set out indeed. In fact, Mr Reed was slightly apologetic at one sense for suggesting it might be too extensively set out. Compared to many committal applications I see, this is a refreshingly clear notice.
c. The grounds must state the date of personal service and confirm that the order included a penal notice. It so does.
d. The grounds must confirm that the claimant believes that the defendant understood the terms of the undertaking and the consequences of his failure to comply. It does so confirm.
e. The grounds must set out the facts alleged to constitute the contempt. It does.
f. The grounds must contain various formal notices, particularly as to consequences of not attending and legal rights. All those have been complied with.
- Turning then to the substance of the committal application, committal proceedings are often said to be quasi criminal in nature. Certainly the burden of proof, as with criminal prosecutions, lies on the party asserting the breach and the standard of proof is the criminal standard.
- In the case of FW Farnsworth v Lacy  EWHC 3487, Mrs Justice Proudman said this of the nature of contempt of court:
“A person is guilty of contempt by breach of an order only if all the following factors are proved to the relevant standard: (a) having received notice of the order the contemnor did an act prohibited by the order or failed to do an act required by the order within the time set by the order; (b) he intended to do the act or failed to do the act as the case may be; (c) he knowledge of all the facts which would make carrying out the prohibited act or the omission to do the required act a breach of the order. The act constituting the breach must be deliberate rather than merely inadvertent, but an intention to commit a breach is not necessary, although intention or lack of intention to flout the court’s order is relevant to penalty.”
- As Mr Reed says, when one is dealing with an act that is said to be a breach of an order that involves speech, it is rather difficult to foresee the circumstance in which that act will not be considered to be deliberate.
- In Navigatory Equities v Deripaska  EWCA Civ 1799, Lady Justice Carr outlined several well established general propositions relating to civil contempts, saying this:
“(i) the bringing of a committal application is an appropriate and legitimate means, not only of seeking enforcement of an order or undertaking, but also (or alternatively) of drawing to the court’s attention a serious (rather than purely technical) contempt …
(ii) A committal application must be proportionate (by reference to the gravity of the conduct alleged) and brought for legitimate ends …
(iii) Breach of an undertaking given to the court will be a contempt: an undertaking to the court represents a solemn commitment to the court and may be enforced by an order for committal. Breach of a court undertaking is always serious, because it undermines the administration of justice;
(iv) The meaning and effect of an undertaking ought to be construed strictly, as with an injunction …
(v) it is generally no defence that the order disobeyed (or the undertaking breached) should not have been made or accepted;
(vi) Orders and undertakings must be complied with even if compliance is burdensome, inconvenience and expensive …
(vii) In order to establish contempt, it need not be demonstrated that the contemnor intended to breach an order or undertaking and/or believed that the conduct in question constituted a breach. Rather it must be shown that the contemnor deliberately intended to commit the act or omission in question, motive is irrelevant;
(viii) Contempt proceedings are not intended as a means of securing civil compensation [and];
(ix) For a breach of order or undertaking to be established, it must be shown that the terms of the order or undertaking are clear and unambiguous …”
- Dealing then with those substantive issues in this case. First of all, in my judgment the undertaking in this case is entirely clear and unambiguous. It is written in simple language and the defendant can, in my judgment, have had no difficulty in understanding what he was undertaking not to do.
- Second, I turn to consider the question as to whether he had notice of the undertaking and knowledge of the consequences of a breach. Of course, His Honour Judge McKenna considered this issue on the previous committal application, but that does not mean that I also should not consider the issue here and now. However, there are three powerful arguments that persuade me that this is so.
a. It is apparent from the material before the court that the defendant was personally served with the order containing the undertaking, first of all on 29 April 2017 by Mr Hoffman and, secondly, on 5 February 2018 by Ms Harris.
b. The previous committal proceedings involved Mr Tiffen, the solicitor who had acted for the defendant at the time of the giving of the undertaking, giving evidence before the court. Mr Tiffen through his affidavit made clear that he had explained the terms of the undertaking to the defendant.
c. Even if there could have been any doubt about the defendant’s understanding of the undertaking and the consequences of his breaching it prior to the application to commit before Mr McKenna, it is inconceivable that the defendant could have been left in any doubt after that application to commit since in making the suspended committal order His Honour Judge McKenna was very clear as to the potential consequences of further breaches of the undertaking. It follows from this that the court need be in no doubt at all that the defendant knew of the undertaking and knew of the consequence of breaching the undertaking.
- The third issue then is whether that which the defendant said falls within the scope of the undertaking. Within the application notice the claimant has, with considerable care, set out the meaning that it contends that the words used by the defendant within the various interviews have. Those passages in relation to the first contempt appear at paragraph 36 of the amended grounds of application, in respect of the second contempt appear at paragraph 37, and in respect of the third alleged contempt appear at paragraphs 37A. They are set out with care and I do not need to repeat them, save to say that in general terms they include assertions that the claimant has been involved in defrauding the Health Service within the United Kingdom by selling a product that is of no value and that product indeed has been responsible for poisoning hospital workers.
- In my judgment, those words have the meaning set out within paragraphs 36, 37 and 37A of the amended grounds of application and clearly amount to a gross breach of the undertaking given by the defendant to the court. Those are words which he spoke in circumstances where he must have known that they would have been shared with others. Even merely saying them to the person who was interviewing him was itself a breach of the undertaking. But the truth of the matter is that it is quite apparent from the context of them that they were each interviews in which the defendant was seeking to share his opinions with other people. The evidence before the court would suggest that it probably has been shared with several hundred, if not more, people.
- Were these intentional acts? As Mr Reed says, it is difficult to imagine a circumstance in which speaking will not be an intentional act. It was clearly a conscious and deliberate act by the defendant.
- Did the defendant know that giving these interviews was a breach of the undertaking? Whilst I have indicated, the undertaking is perfectly clear. He has previously been subject to committal proceedings in which he was subject to a custodial sentence, albeit suspended, for his breach of this very same undertaking. He can have been in no doubt whatsoever that to say this would amount to a breach of the undertaking.
- In those circumstances, I am entirely satisfied to the criminal standard that the claimant makes out the three alleged breaches within the notice of undertaking.