Knowles J. Refusal of W’s application for permission to bring contempt proceedings against H and another.

Background

H applied to prevent Sears Tooth from representing W. H claimed both he and William Harrison (WH) had engaged in a substantive conversation with Mr Tooth when H considered changing solicitors, such that Mr Tooth was conflicted and could not act for W. Mr Tooth denied having any such conversation. Later, H sought to withdraw his application, opting instead to focus on addressing remaining issues. In response, W stipulated she would consent to H's withdrawal only if he agreed to certain conditions, including a recital in the consent order acknowledging that H ‘accepts that he never should have made the application in the first place’. In the event H did not agree, W indicated she would seek permission to issue committal proceedings pursuant to FPR 17.6.

W subsequently sought permission to bring proceedings for contempt against H and WH alleging both had deliberately made false statements in support of H’s application to debar Sears Tooth from acting for W, which she alleged was part of an ongoing campaign by H to control W and was an attempt to interfere with the administration of justice.

Held

1. W’s prima facie case was weak and evidentially flawed because, amongst other things:
1. Mr Tooth's memory of a past conversation with H may be doubted due to its informal nature and the significant lapse of time. His assertion he would have made an attendance note was inconsistent with his documented practices and may well be persuasive in combination with other issues. (ZS v FS (Application to Prevent Solicitor Acting) [2017] EWHC 2660 (Fam) (paragraph 39)).
2. Evidence of telephone records may invalidate the inference the court was invited to draw on behalf of W, and Mr Tooth may have used an alternative handset to make the call.
3. W’s reliance on a holding email sent by Mr Tooth’s secretary, after the alleged call took place, could potentially be explained by WH and in any event it was difficult to see how those matters would provide a basis for an application for contempt.
4. It was plausible Mr Tooth could have made a telephone call during a pause or break in the FDR on the day H and WH allege the call took place, or after it had concluded. That Mr Tooth was in an FDR was not determinative the call could not have taken place, and no evidence was filed in support of Mr Tooth’s contention.
5. W’s allegation that H and WH fabricated false statements to maintain control over her legal representation appeared to have little tangible benefit for H when in April 2023 the substance of the financial remedy (Links to previous summaries here: interim maintenance; enforcement of interim maintenance; final hearing) and children proceedings had been resolved. H’s perception was rather his confidence had been breached, leading to his application to prevent Sears Tooth acting. Had W discharged Sears Tooth upon learning of the conflict, any application against W’s new firm of solicitors, as a means of control, would have no traction at all.
2. W was not a proper person to bring committal proceedings, and her intemperate language in correspondence and affidavits undermined submissions she would be capable of acting dispassionately as a quasi-prosecutor. W’s key motivation was to obtain a benefit in any future litigation, by demonstrating a statement of truth by H or WH could not be relied upon. The court was unable to align W’s case with the public interest arguments to prevent the making of false statements by witnesses.
3. It was not proportionate to allow W to pursue the case. It was evidentially weak. Significant costs had already been spent, and further estimates suggested £500K may be spent should permission be granted. Further, four or five days of court time would be required which would be lost to other business which was not a reasonable or appropriate use of the court’s finite resources.

Accordingly, W was refused permission. It was not in the public interest to allow the application to continue.