PI Brief Update

When Is Permission to Appeal Required in Cases of Contempt? - Sebastian Bates, Temple Garden Chambers

22/03/23. In Deutsche Bank AG v Sebastian Holdings Ltd [2023] EWCA Civ 191, the Court of Appeal addressed what Andrews LJ described at [127] of her concurring judgment as ‘the topic of permission to appeal in cases of committal for contempt’.

Summary

Males LJ recorded at [1]–[3] of his leading judgment that the appellant, Mr Vik, had been found guilty of contempt of court by an order. By a later order, he had been committed to prison for a period to be conditionally suspended. Males LJ acknowledged that Mr Vikhad a right of appeal from thesecond order, but the question ‘whether he need[ed] permission to appeal from the’ first had arisen.

At [33], Males LJ adverted to the ‘suggestion that a right to appeal without permission only lies from the order actually committing a contemnor to prison, with the consequence that an appeal from an order which goes no further than making findings of contempt cannot be appealed without permission’, observing that ‘[t]his raise[d] questions when [. . .] allegations of contempt are dealt with in two stages’.

Conclusion and Comment

Males LJ’s own view (at [39]–[40]) was that‘where for convenience the issue of contempt is dealt with in two stages and an order making a finding of contempt is later followed by committal to prison (including a suspended sentence), [an individual defendant] has a right of appeal against the order for committal and no permission is required’. The grounds of appeal in such cases ‘are not limited to a contention that the sentence was too severe, but may include a contention that the finding of contempt was wrongly made’.

Consequently, as Males LJ explained at [42], if an individual ‘defendant seeks to appeal against the finding of contempt before sentence, permission will be needed’, whereas if he ‘defers an appeal until after sentence and is then committed to prison, he will be entitled to challenge the committal on the ground that the finding of contempt was wrongly made’. If he is not ‘committed to prison after all’, then ‘he will need permission to appeal, but should be entitled to seek permission [. . .] on the ground that the finding of contempt ought not to have been made’. Judges can avoid ‘any problem that time has run for an appeal against the first order making the finding of contempt’ by ordering ‘that the time for appealing the finding of contempt will not run until after the court has determined what sanction to impose’.

Nugee LJ agreed (at [133]) with Males LJ as well as Andrews LJ, who expressed (at [127]) the hope that ‘the observations of Males LJ [. . .] and my observations [. . .] will help to avoid a repetition of the peculiar circumstances that’ had arisen in an earlier case.

Practitioners should take note of these observations and will share Andrews LJ’s hope that future complexity can thereby be avoided.

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