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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Aslani v Sobierajska [2025] EWCA Civ 391 (03 April 2025) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2025/391.html Cite as: [2025] EWCA Civ 391

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
The Honourable Mr Justice Murray
QB-2020-004166

		Royal Courts of Justice Strand, London, WC2A 2LL
		3 April 2025

This judgment was handed down remotely at 3:00pm on 3 April 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives. .............................

LORD JUSTICE BAKER :

1. This is an appeal against an interim order by Murray J in contempt proceedings brought by the appellant against the respondent. At the hearing today, the appellant has been legally represented but the respondent has appeared in person. Yesterday, we reminded the parties that the respondent, as the defendant to a committal application, was entitled under CPR rule 81.4(2)(i) and (j) to be legally represented in the proceedings and to a reasonable opportunity to obtain legal representation and apply for legal aid. We inquired whether either party wished to make any application or submissions about the application of those provisions to today's appeal hearing. In an email, the respondent indicated that she would like legal aid for the hearing. But at the outset of the hearing, she said that she wanted to proceed without legal representation, and was content to rely on the statements filed in the course of the proceedings, and on a statement filed for the purposes of responding to the appeal.
2. We therefore continued with the hearing this morning, and, at the end, informed the parties that we would be dismissing the appeal, for reasons to be given later in the day. These are my reasons for joining in that decision.
3. It is unnecessary to recite the background in any detail. The relevant points are as follows.
4. On 18 November 2020, the appellant started libel proceedings against the respondent arising out of posts on her Instagram accounts. On 6 January 2021, a default judgment was entered against the respondent. On 8 April 2021, an order for alternative service was made by Master Thornett on the basis that the respondent appeared not to live in this country.
5. At a hearing on 28 July 2021, not attended by the respondent, Saini J made an order inter alia that the respondent should pay damages in the sum of £40,000 plus costs summarily assessed at £27,041.37 and granting an injunction prohibiting the respondent from publishing, directly or indirectly, specified allegations defamatory of the appellant and the conduct of his professional practice.
6. There is an issue in these proceedings, not yet resolved, as to whether the order was served on the respondent. It is the appellant's case that it was served by email on 28 July 2021 pursuant to the order of Master Thornett and was then personally served on 28 June 2022. The defendant denies that service took place.
7. On 27 November 2021, the respondent reposted a story from another Instagram user to one of her accounts about the appellant.
8. On 13 January 2022, the appellant issued a committal application which, following amendment made with the court's permission, constitute the proceedings in which this appeal arises. It is a matter of considerable concern that a committal application, which by its nature is a matter which should be resolved swiftly, remains outstanding over three years after it was started.
9. In September 2022, the respondent put further posts on Instagram critical of the appellant which, it is contended, amounted to further breaches of the injunction.
10. In the intervening years, the appellant started bankruptcy proceedings against the respondent after she failed to pay the damages due under Saini J's order. A bankruptcy order was made and a trustee appointed, and although the respondent was subsequently discharged from bankruptcy, the trustees kept the file open.
11. At a hearing on 5 February 2024, Steyn J ordered, inter alia, that (i) personal service of the contempt application be dispensed with, (ii) the appellant was permitted to amend the contempt application to include the September 2022 posts, and (iii) any evidence upon which the respondent sought to rely in response to the contempt application must be filed and served by 4pm on 19 February 2024. The judge gave listing directions, pursuant to which the claim was listed for full hearing before Murray J on 12 April 2024. In the event, the respondent filed a statement a day late, on 20 February.
12. The statement filed by the respondent included the following two passages which led to the application and order now under appeal:

"29. My lawyers have advised me that the required standard is personal service and the Claimant has not met that standard. Therefore, the Claimant's application must fail.

…

68. I was unaware that a case filed against me in the United Kingdom, a country where neither I reside nor the doctor who performed the surgery on me – who lives in Spain, along with the location of the surgery – would have legal implications that required my attention. My understanding of the validity and implications of the communications sent to me was lacking, and I did not grasp the seriousness of the situation until it was explained in detail by a lawyer. This legal advice highlighted my mistakes and the potential consequences they could have on me."

13. By an application dated 18 March 2024, the appellant applied for (i) an order pursuant to CPR rules 31.12 and/or 31.14 that the legal advice referred to in paragraphs 29 and 68 of the respondent's witness statement be disclosed and copies provided to the appellant, and (ii) an order that the appellant be permitted to cross-examine the respondent as to the content of the legal advice because the respondent had waived privilege therein. In correspondence prior to the hearing, the respondent's then solicitors stated that the legal advice referred to at paragraphs 29 and 68 of her witness statement had been given orally and that there were, therefore, no documents to disclose. The appellant's application was therefore reduced simply to seeking a declaration that the respondent had waived legal advice privilege and that the court therefore should permit the appellant to cross-examine her on the relevant legal advice.
14. On the day before the hearing, solicitors then acting for the respondent served a further statement on the appellant's solicitors. Exhibits to that statement were served shortly after midnight on the day of the hearing. For that reason, at the start of the hearing (a transcript of which has been provided for this appeal), the appellant did not oppose the application for relief from sanctions provided the hearing was adjourned. The judge granted relief from sanctions, permitting the late filing of the statement, but also granted the adjournment, reserving the question of costs to the adjourned hearing.
15. The judge then turned to the application for specific disclosure. In the course of that argument, the respondent's counsel informed the court that his client now recollected that some of the legal advice had been given in writing. The application for disclosure was therefore, as Mr Reed put it to us, "reignited". Having heard legal argument, the judge reserved judgment which was handed down on 3 May 2024.
16. In his judgment, having summarised the background, the judge referred to the legal principles applicable in cases where it was alleged that legal advice privilege had been waived by reference to the decision of Waksman J in PCP Capital Partners LLP v Barclays Bank Plc [2020] EWHC 1393 (Comm) (paragraphs 47 to 84). He summarised those principles in these terms:

"A waiver of legal advice privilege will be held to have occurred where the party who had received the advice:

(i) referred to the content or gist of the advice, and not merely its effect; and

(ii) relied on that reference in some way to support or advance their case on an issue that the court has to decide."

He also quoted a passage from the judgment of Elias J in Brennan v Sutherland City Council [2009] ICR 479 (paragraph 67) cited by the respondent's counsel.

17. The judge concluded his summary of the legal principles with the following observation (paragraph 39):

"It is necessary for the court in any specific case, including this one, to apply the distinction between reference to content and reference to effect in a "contextual and nuanced fashion" (PCP Capital Partners at [61]) and then to consider for what purpose that reference is relied on, which is "an acutely fact-sensitive exercise" (PCP Capital Partners at [60]). The overriding principle is one of fairness. In this case that means that if [the respondent] has referred to and is relying on the content of legal advice in order to advance her case, then fairness requires disclosure of that advice so that [the appellant] can properly assess that assertion (see Mid-East Sales Limited v United Engineering & Trading Company Limited [2014] EWHC 892 (Comm) (Males J) at [15], quoted in PCP Partners at [79])."

18. The judge summarised the parties' respective submissions, and then set out his analysis. He concluded that, in both paragraph 29 and paragraph 68 of her witness statement, the respondent was "clearly referring to the content of the legal advice that she has received and not merely to the effect of it". The question was therefore whether in relation to each of the paragraphs she was relying on the substance of the advice to support or advance her case on an issue which the court had to decide. On this point, he observed (paragraph 46):

"Key issues for the Amended Committal Application are whether [the respondent] was ever properly served with the Saini J order, what (if anything) she knew about the Saini J order, and when and how she obtained that knowledge."

19. On these issues the judge set out his conclusions in the following paragraphs which I quote in full:

"47. In relation to paragraph 29, in my view it is reasonable to infer that Ms Sobierajska is relying on her reference to the substance of the legal advice she received in order to:

(i) defend herself against the Amended Committal Application on the basis that the Saini J Order was never properly served on her, and she was therefore not bound by it; and

(ii) mitigate her breach of the Saini J Order, should any breach be established to the satisfaction of the court, on the basis that the breach was not intentional or knowing, and therefore not contumacious, given her belief, based on advice, that the Saini J Order did not bind her.

48. The first of the two purposes set out at [47] above is not a sufficient purpose to justify waiving legal advice privilege. If it is true that the Saini J Order was not properly served on Ms Sobierajska, then that is so independently of any legal advice given to her. In other words, her reference to that advice does not "advance" her case on the question of service.

49. The latter of the two purposes set out at [47] above, however, is a sufficient purpose to justify waiving legal advice privilege, but only once the question whether the Saini J Order was validly served on Ms Sobierajska has been resolved, and the court has found that she has breached it or, in other words, only at the sentencing stage, if that stage is reached.

50. In my view, it would not be fair to Ms Sobierajska to declare that she had waived legal advice privilege until Dr Aslani has established to the court's satisfaction that the Saini J Order was properly served, and that Ms Sobierajska committed one or more breaches of it.

51. Accordingly, I will not at this stage make a declaration that Ms Sobierajska's legal advice privilege has been waived in relation to the advice referred to at paragraph 29. However, it may be appropriate to do so if and when the sentencing stage is reached.

52. In relation to paragraph 68, Ms Sobierajska is relying on her reference to the substance of the legal advice she received in order to advance her case that she did not understand the Saini J Order, including what it required and the consequences of breaching it. That is a purpose sufficient to constitute a waiver of legal advice privilege in relation to the issue of her state of mind for purposes of determining the appropriate penalty if a breach of the Saini J Order is established against her. It would not, however, in my view be fair to determine that Ms Sobierajska has waived her privilege in relation to the legal advice referred to in paragraph 68 unless and until the court establishes that she has breached the Saini J Order, and the sentencing stage has been reached.

53. Accordingly, I will not at this stage make a declaration that Ms Sobierajska's legal advice privilege has been waived in relation to the advice referred to at paragraph 68. However, it may be appropriate to do so if and when the sentencing stage is reached."

20. He then summarised his conclusions as follows:

"54. I have at this stage resolved the preliminary issue raised by the Specific Disclosure Application against Dr Aslani. Ms Sobierajska is not seeking to rely on her references to legal advice in paragraphs 29 and 68 of her second witness statement to advance her case on the threshold issues that the court must decide in relation to the Amended Committal Application, namely, whether the Saini J Order was properly served on Ms Sobierajska and, if so, whether she has breached it.

55. If, however, after consideration of the Amended Committal Application, the court determines that the Saini J Order was properly served on Ms Sobierajska and that she has breached it on one or more occasions, then I consider that Ms Sobierajska has waived legal advice privilege in relation to the legal advice to which she refers in paragraphs 29 and 68 of her second witness statement as far as that legal advice is relevant to the question of the appropriate penalty for breach. This is because her evidence about that legal advice goes to the issues of what she knew about the Saini J Order, when she knew about it, and how she obtained that knowledge.

56. In relation to any other issues arising from the Specific Disclosure Application, it follows from the foregoing that it is premature to order specific disclosure of the documents …, to the extent that there are any such documents.

57. Accordingly, although I will make no declaration of waiver of legal advice privilege and no order for specific disclosure at this stage, and therefore I will dismiss the Specific Disclosure Application. I will do so, however, without prejudice so that Dr Aslani may renew his application should these proceedings reach the sentencing stage."

21. On the date the judgment was handed down, the appellant's legal representatives indicated that they wished to apply for permission to appeal. The judge gave directions for the application to be made in writing, which were duly complied with. On 28 June 2024, the judge made an order granting permission to appeal on the basis that the grounds advanced had a real prospect of success. The order included a recital:

"the Court found that the Defendant had not waived privilege in respect of the issue of service of the Saini J Order but had waived privilege in respect of the issues of her knowledge of the order and the contumacy of any potential breach and the Court therefore declined to make a declaration of waiver of legal advice privilege or order for specific disclosure unless and until the Application is renewed."

22. There are two grounds of appeal:

1. It was wrong in law to conclude that the threshold issues in relation to the committal application were only (i) whether the order of Saini J dated 28 July 2021 was properly served on the respondent and (ii) if so, whether she had breached it. The respondent's knowledge of the terms of the Saini J order was also a threshold issue.

2. It was wrong in law to conclude that the respondent had waived legal advice privilege in respect of the issues of knowledge and understanding of the order and contumacy of breach but not in respect of the issues of service and breach.

23. At the start of the hearing, Mr Reed informed us that he was basing his argument solely on paragraph 68 of the respondent's statement and no longer seeking to rely on paragraph 29. Under the first ground, in clear and succinct submissions, he relied on the summary of the law on contempt at paragraph 20 in the judgment of Proudman J in FW Farnsworth Ltd v Lacy [2013] EWHC 3487 (Ch) and on a judgment of Booth J in Re L (A Ward) (Publication of Information) [1988] 1 F.L.R. 255. He submitted that, on a proper application of the relevant principles, the alleged contemnor's knowledge of the order is an essential component of the contempt itself and therefore a 'threshold issue'. The judge had therefore been wrong to conclude that knowledge of the order was not a 'threshold issue' necessary to establish that there had been a contempt and that what the respondent knew about the Saini J order and when she knew about it were only relevant to the sentencing stage. On a proper analysis, the respondent referred to the content of the legal advice received and not merely to the effect of it, and relied on the legal advice to support and advance a case on a threshold issue that the court had to decide on the substantive contempt application. As a result, an order for disclosure or a declaration to confirm the waiver of privilege ought to have been made at this stage and not only at the sentencing stage.
24. Under ground 2, Mr Reed submitted that, even if the question of knowledge of the terms of the order was not distinct from that of contumacy of the breach and was not an essential element required to make out a case of contempt, the decision to dismiss the application was wrong. Although waiver of privilege requires reliance on the reference to the content or gist of the legal advice in some way to support or advance a party's case on an issue that the court has to decide, the ability of the party to whom the advice has been disclosed or the court to rely on that evidence or take it into consideration is not limited to that issue. If there were to be such a limitation, it would mean that the court could hear evidence which is relevant to two issues it has to decide, but only be able to take it into account in relation to one. There is no authority to support the imposition of such a restriction and it would be illogical, said Mr Reed, for a court to be able to hear evidence in relation to one issue which it was not able to take into account in relation to another. Mr Reed contended that, in general, oral evidence in committal proceedings will be heard at the same time in relation to all issues, including the question of contumacy, even if sentencing itself is dealt with at a separate hearing. Following the judge's reasoning it appears that he would almost certainly make the order sought by the appellant should the application be renewed at the sentencing stage. But the case management directions given by Steyn J made no provision for a split hearing. Where all the issues are being dealt with at the same hearing and oral evidence is being given in relation to all live issues, it is artificial to divide the proceedings in the way implicitly envisaged by the judge.
25. In oral submissions, Mr Reed put forward an additional argument, based on the observation of HHJ Pelling QC sitting as a judge of the High Court in Cuadrilla Bowland Ltd and others v Ellis and others (unreported, 28 June 2019) at paragraph 14:

"There is an issue of fact that arises, which is relevant to penalty if that stage is reached. If the respondents did not, in fact, know of the terms of the order even though technically the order had been served as directed, then it is highly likely that a court would consider it inappropriate to impose any penalty for the breach. For that reason, it is appropriate to determine that issue at this stage."

Mr Reed submitted that a litigant in the position of the appellant needed to be able to gauge the proportionality of pursuing an application to commit. If in fact there was no prospect of a sanction being imposed, that would be relevant to his decision whether to continue with the claim. To that end, it was in the interests of justice for documents in respect of which privilege had been waived to be disclosed at the "threshold" stage, even if (contrary to his principal argument), they were only relevant to sanction.

26. I am unpersuaded by these arguments that the judge erred in law or that there is any basis on which this Court could properly interfere with his decision.
27. The legal principles applicable on a contempt application for an alleged breach of a court order were summarised by Warby LJ in Cuciurean v Secretary of State for Transport [2021] EWCA Civ 357. At paragraph 13, he referred to the judgment of Proudman J which he noted had been approved by this Court in Cuadrilla Bowland Ltd v Persons Unknown [2020] EWCA Civ 9, and also to the passage in HHJ Pelling's judgment in Cuadrilla at first instance cited above. Having considered those and other authorities, Warby LJ observed (at paragraph 58):

"These authorities indicate that (1) in this context "notice" is equivalent to "service" and vice versa; (2) the Court's civil contempt jurisdiction is engaged if the claimant proves to the criminal standard that the order in question was served, and that the defendant performed at least one deliberate act that, as a matter of fact, was non-compliant with the order; (3) there is no further requirement of mens rea, though the respondent's state of knowledge may be important in deciding what if any action to take in respect of the contempt."

28. In the light of that clear statement, I reject the appellant's submission that, in a case where it is alleged that there has been a contempt of court by reason of breach of a court order, the alleged contemnor's knowledge of the order is an essential component of the contempt itself and therefore a 'threshold issue'. The judge had therefore been entitled to conclude that knowledge of the order was not a 'threshold issue' necessary to establish that there had been a contempt and that what the respondent knew about the Saini J order and when she knew about it were only relevant to the sentencing stage. The issues to be determined at the threshold stage in this case are simply (1) whether the order was served on the respondent and (2) whether she subsequently did an act prohibited by the order.
29. As for the second ground, I agree with the judge's analysis in paragraphs 47 to 49 of his judgment. It seems to me that the decision which the appellant is inviting this Court to overturn is, in effect, a case management order. Although there is no express order setting out that the contempt hearing is to be conducted in two stages – liability/threshold first and, if that is proved, sanction/penalty second – that is in effect what Murray J was envisaging. It is correct that Steyn J's case management order did not make provision for a split hearing, but her order predated the application for specific disclosure and the raising of the argument about waiver of privilege. When hearing an appeal against a case management decision, the circumstances in which the Court of Appeal can interfere are limited. It can interfere only if satisfied that the judge erred in principle, took into account irrelevant matters, failed to take into account relevant matters, or came to a decision so plainly wrong that it must be regarded as outside the generous ambit of the discretion entrusted to the judge. A party seeking to overturn a case management decision made within the judge's discretion must therefore cross a high threshold. The appellant has fallen well short of crossing that hurdle in this case.
30. I accept that the consequence may be that the appellant is unable to predict what the outcome of the proceedings will be in terms of sanction if he succeeds on liability. But to my mind that is outweighed by the importance of confining the disclosure of privileged documents to the circumstances established by legal principle, particularly in a case where the privilege is enjoyed by a litigant whose liberty may be at stake in the proceedings.
31. For those reasons, I joined in the decision that this appeal should be dismissed.
32. In conclusion, I urge the parties to give careful consideration as to the future of this litigation. We were informed that, since 2022, there has been no alleged further breach of the order. The proceedings are doubtless having adverse consequences on both sides, and absorbing considerable amount of limited court resources. In giving directions at an earlier stage, Nicklin J referred to "a sense of unreality permeating" this litigation, and expressed the view that "the claimant needs to take stock of this litigation and decide … whether the continued use of his and the Court's resources is consistent with the overriding objective". I echo those words in dismissing this appeal.

NICOLA DAVIES LJ

33. I agree.

LEWIS LJ

34. I also agree.