2026x8, Thursday: So what?

The first rule in any contempt application is a simple one. 

Do it right.

Of course, this isn’t just for contempt. Rather, it should be stencilled into the heart of every litigator as if marbled through a stick of rock. Getting the procedural steps right first time isn’t always straightforward, but it’s a basic way of telling the pros from the dilettantes. Procedural stuff-ups are time-consuming, expensive, and on blessedly rare occasions terminal for your client’s case. 

I say “blessedly rare”, but contempt is different. It’s trite among contempt practitioners that procedural rigour isn’t a nice-to-have. The requirements built into Part 81 of the CPR (and the parallel ones in the family jurisdiction in FPR 37) - for personal service, for clear messaging to the defendant of what their rights are, for public hearings with published judgments, and for all the workings to be clearly shown - are just that: strictly-policed must-dos, which judges tend to take very seriously.

Which doesn’t mean that a failure is always fatal. Take personal service, for instance, it can be waived - and waived retrospectively even on occasion, if the circumstances and justice require it. (Business Mortgage Finance v Hussain, a case I was tangentially and briefly involved with, being a good example: the defendant’s flat refusal to tell either claimant or court his location meant Miles J didn’t have to think too long before allowing substitute service.) And particularly where litigants in person are involved on the claimant side, using a witness statement instead of an affidavit is unlikely to redirect your application into the dustbin.

But these are exceptions - even these are far from common. Generally, expect judges to be unsympathetic to procedural failings on the part of contempt claimants, particularly ones represented professionally. Contempt is different from general civil litigation, not only in its standard of proof (the criminal one, so that the court is sure, rather than the usual civil more-likely-than-not) but also in the fact that the court is wholly alive to the risk that a defendant could - rather than walking out of court considerably the poorer - find themselves not walking out at all, but instead settling nervously into the back of a Serco van. 

It’s surprising to me, therefore, that contempt claimants keep getting it wrong. I’ve seen contempt applications which simply don’t particularise what a defendant is meant to have done. Which cross-refer to document after document after document, instead of just putting the case in the application - or at worst in the affidavit that accompanies it. Which seem to have forgotten, if they ever knew, what the test for civil contempt actually is. (Or, on occasion, plead facts which might work for civil contempt where the proper test is the rather different mens rea of the criminal one.)

But till recently I’ve never seen one that forgot to establish whether the claimant had authority to bring the application in the first place - and then tried to ask a judge to handwave the problem on the basis of no evidence whatsoever.

That was one key reason why the claimant failed in Advantage Insurance Company Ltd & Wilde v Shaw [2026] EWHC 2188 (KB)- despite a case which, from the outside, looked like a bit of a slam dunk, given that its defendant was a personal injury claimant found to have been fundamentally dishonest due to having been found to have exaggerated his claim by more than £5 million. With such a background, one can understand why an insurer - because it was the insurer that was the active claimant - might want to nail down the lid on the now-defendant, if only (so to speak) pour décourager les autres”. 

My good friend Marc Livingston, of Janes Solicitors, has done an excellent job laying out the background, so I'll shamelessly piggy-back on his hard work. (Marc would be far too polite to say it or even think it, but when it comes to counsel and solicitors, what else is new?) The insurer, it seems, had simply assumed it was OK for them to bring the claim in the name of the PI defendant (their insured) - but could show the court nothing to say she’d ever in fact agreed to let them do so. 

In the procedure-sensitive world of contempt, it’s not hard to see why this would - for most judges - be a bit of a no-no. The insurer’s plea that it had always in practice been running the case fell on stonily deaf ears. As HHJ Pearc put it at [34.ii]:

Although Mr Higgins is right to say that throughout the quantum aspect of these proceedings the defence of this litigation has been entirely under the control of Advantage. I mean no disrespect if I raise the simple question, “So what?”

A last-ditch assertion - offered not during argument but after the judge had risen to consider his decision - that the insurer finally had in its possession (but hadn’t yet put before the court, let alone before the defendant) evidence of the insured’s agreement cut no ice at all. As, in my view, is right: not only is it a mockery of the cards-face-up way we do things here (none of that US courtroom drama trope of slamming documents down on the table during a hearing for the first time), but far more importantly nothing in the judgment at least indicates any explanation of why - even if the document in question was the real thing, which of course one ought to accept - it had taken so long to get to that point. Because - also as pointed out by the judge - it had been clear for getting on for a year that this was going to be a problem.

I think for me, this was the standout practice point in Advantage from a contempt perspective - and perhaps from a broader litigation perspective too. If someone has done something obviously procedurally dumb, and isn’t fixing it, my suspicious mind asks itself, not so much “so what?”, as “why not?”. Often this kind of thing is an easy solve, after all. If the other side isn’t solving it, it’s worth considering whether it’s because they can’t. And if they can’t - well, that’s the obvious bruise to poke, isn’t it? 

That’s what happened in the case with the woefully inexact particulars, incidentally. We (that is, Marc - my instructing solicitor on that one) prodded, and prodded, and prodded. And ultimately the application was withdrawn.

Sometimes, of course, they’ll fix it. But if they don’t, whether because they can’t or because they’re too arrogant to bother to, you might well find yourself on the kind of ground my friend and colleague Ben Bradley KC found himself on in Advantage. And thanks to which the defendant left court no poorer - and left court a free man.