Cardiff City Football Club Limited v William Arthur McKay & Ors [2025] EWHC 1439 (Comm)

[2025] EWHC 1439 (Comm)Case No CC-2023-000006IN THE HIGH COURT OF JUSTICEBUSINESS AND PROPERTY COURTS IN WALESCIRCUIT COMMERCIAL COURT (KBD)Venue Cardiff Civil & Family Justice Centre, 2 Park Street, Cardiff, CF10 1ETDate 12 June 2025
Before
THE HONOURABLE MR JUSTICE NICKLIN
Between
Cardiff City Football Club LimitedClaimant(1) William Arthur McKayDefendants(2) Mark McKayDefendant(3) Janis McKayDefendant
Emily Betts (instructed by Capital Law Limited) for ClaimantJoe Holmes (instructed by Taylor Rose LLP) for DefendantsHearing Hearing date: 9 May 2025
Approved JudgmentThis judgment was handed down remotely at 10.00am on 12 June 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
[1]This judgment resolves an issue as to whether the Defendants are entitled to rely upon without prejudice communications between the parties. The immediate context is that the Claimant has brought a contempt application alleging that the Defendants have failed to comply with an order requiring them to give disclosure of certain categories of documents.[2]The Defendants contend that the contempt application is an abuse of process by the Claimant. In support of that case, the Defendants want to rely upon certain without prejudice communications sent on behalf of the Claimant. In summary, the Defendants argue that the contents of the without prejudice communications demonstrate that the Claimant used the contempt application improperly to pressurise them into disclosing documents to which the Claimant was not entitled. They submit that this demonstrates “unambiguous impropriety” which justifies removing the without prejudice privilege from the relevant communications.[3]The Claimant’s response is that the without prejudice communications were genuine efforts at settlement in hard-fought litigation. The contempt application, it is argued, was properly brought and maintained for legitimate reasons (principally to secure compliance with the disclosure order). The “unambiguous impropriety” exception is narrowly applied and not met in this case. The discussions were consensually without prejudice and aimed at resolving the underlying dispute between the parties.[4]For the reasons set out in this judgment, I have held that the Defendants are not entitled to rely upon the without prejudice communications. As a result, I have not included the detail, and my analysis, of the without prejudice communications in this public judgment, but in a confidential Annex that will be withheld from the public judgment. As I have concluded that the Defendants are not entitled to refer to these communications, the Court must protect them from public disclosure. Although the hearing on 9 May 2025 took place in private (necessarily, for the same reasons), this judgment (minus the Annex) is a public judgment.

A: The original disclosure order

[5]The claim for disclosure against the Defendants was made in the context of litigation involving the Claimant arising from the death of the footballer, Emiliano Sala, on 21 January 2019. At the time of his death, Mr Sala was the subject of a high-profile transfer from Nantes FC in France, to Cardiff City Football Club (“CCFC”). On 12 May 2023, the Claimant brought a claim against Nantes FC in the Commercial Court of Nantes claiming damages of just over €120m. Those proceedings have yet to be determined or resolved.[6]In connection with that case, on 22 December 2023, the Claimant issued a Part 8 Claim against the First Defendant in this jurisdiction. It sought disclosure by the First Defendant of six categories of documents – principally concerning the role of the First Defendant in Mr Sala’s transfer – in the period 1 November 2018 to 28 February 2019 (“the target period”).[7]On 6 February 2024, agreement was reached between the Claimant and all three Defendants, subsequently embodied in a Tomlin Order dated 7 February 2024. Under the Tomlin Order, the Second and Third Defendants were joined as parties to the claim and each Defendant agreed that, by 4pm on 19 February 2024, s/he would disclose to the Claimant documents from the target period which fell within the identified six categories. All further proceedings in the claim were stayed save for the purposes of enforcing the terms of settlement.[8]It is common ground that no documents were provided by the Defendants pursuant to the Tomlin Order.[9]Following an application to the Court by the Claimant, HHJ Keyser KC was satisfied that the Defendants were in breach of the Tomlin Order and that its terms were properly enforceable within the Part 8 proceedings. Consequently, on 22 February 2024, he made an order, endorsed with a penal notice, requiring the Defendants to comply with the Tomlin Order (“the Disclosure Order”). The material parts of the Disclosure Order provided as follows:
“1. The First Defendant do by 4pm on 26 February 2024 disclose to the Claimant the following documents and records for the period 1 November 2018 to 28 February 2019: (a) All emails and text messages (whether sent by SMS, WhatsApp or otherwise) passing between Willie McKay and any officer or employee of FC Nantes concerning the transfer or potential transfer of Emiliano Sala from FC Nantes, whether to Cardiff City Football Club Ltd or any other club or generally. (b) All emails and text messages (whether sent by SMS, WhatsApp or otherwise) passing between Willie McKay and Mark McKay concerning the transfer or potential transfer of Emiliano Sala from FC Nantes, whether to Cardiff City Football Club Ltd or any other club or generally. (c) All emails and text messages (whether sent by SMS, WhatsApp or otherwise) passing between Willie McKay and any officer or employee of any football club (other than Cardiff City Football Club Ltd) concerning the transfer or potential transfer of Emiliano Sala from Nantes, whether to Cardiff City Football Club Ltd or any other club or generally. (d) All emails and text messages (whether sent by SMS, WhatsApp or otherwise) passing between Willie McKay and any officer or employee of FC Nantes concerning arrangements for Emiliano Sala to fly from Cardiff to Nantes on 19 January 2019 and from Nantes to Cardiff on 21 January 2019. (e) All emails and text messages (whether sent by SMS, WhatsApp or otherwise) passing between Willie McKay and Mark McKay concerning arrangements for Emiliano Sala to fly from Cardiff to Nantes on 19 January 2019 and from Nantes to Cardiff on 21 January 2019. (f) All emails and text messages (whether sent by SMS, WhatsApp or otherwise) passing between Willie McKay and any other person concerning arrangements for Emiliano Sala to fly from Cardiff to Nantes on 19 January 2019 and from Nantes to Cardiff on 21 January 2019. 2. The Second Defendant do by 4pm on 26 February 2024 disclose to the Claimant the following documents and records for the period 1 November 2018 to 28 February 2019: (a) All emails and text messages (whether sent by SMS, WhatsApp or otherwise) passing between Mark McKay and any officer or employee of FC Nantes concerning the transfer or potential transfer of Emiliano Sala from FC Nantes, whether to Cardiff City Football Club Ltd or any other club or generally. (b) All emails and text messages (whether sent by SMS, WhatsApp or otherwise) passing between Mark McKay and Willie McKay concerning the transfer or potential transfer of Emiliano Sala from FC Nantes, whether to Cardiff City Football Club Ltd or any other club or generally. (c) All emails and text messages (whether sent by SMS, WhatsApp or otherwise) passing between Mark McKay and any officer or employee of any football club (other than Cardiff City Football Club Ltd) concerning the transfer or potential transfer of Emiliano Sala from Nantes, whether to Cardiff City Football Club Ltd or any other club or generally. (d) All emails and text messages (whether sent by SMS, WhatsApp or otherwise) passing between Mark McKay and any officer or employee of FC Nantes concerning arrangements for Emiliano Sala to fly from Cardiff to Nantes on 19 January 2019 and from Nantes to Cardiff on 21 January 2019. (e) All emails and text messages (whether sent by SMS, WhatsApp or otherwise) passing between Mark McKay and Willie McKay concerning arrangements for Emiliano Sala to fly from Cardiff to Nantes on 19 January 2019 and from Nantes to Cardiff on 21 January 2019. (f) All emails and text messages (whether sent by SMS, WhatsApp or otherwise) passing between Mark McKay and any other person concerning arrangements for Emiliano Sala to fly from Cardiff to Nantes on 19 January 2019 and from Nantes to Cardiff on 21 January 2019. 3. The Third Defendant do by 4pm on 26 February 2024, disclose to the Claimant the following documents and records for the period 1 November 2018 to 28 February 2019: (a) All emails and text messages (whether sent by SMS, WhatsApp or otherwise) passing between Janis McKay and any officer or employee of FC Nantes concerning the transfer or potential transfer of Emiliano Sala from FC Nantes, whether to Cardiff City Football Club Ltd or any other club or generally. (b) All emails and text messages (whether sent by SMS, WhatsApp or otherwise) passing between Janis McKay and Mark McKay concerning the transfer or potential transfer of Emiliano Sala from FC Nantes, whether to Cardiff City Football Club Ltd or any other club or generally. (c) All emails and text messages (whether sent by SMS, WhatsApp or otherwise) passing between Janis McKay and any officer or employee of any football club (other than Cardiff City Football Club Ltd) concerning the transfer or potential transfer of Emiliano Sala from Nantes, whether to Cardiff City Football Club Ltd or any other club or generally. (d) All emails and text messages (whether sent by SMS, WhatsApp or otherwise) passing between Janis McKay and any officer or employee of FC Nantes concerning arrangements for Emiliano Sala to fly from Cardiff to Nantes on 19 January 2019 and from Nantes to Cardiff on 21 January 2019. (e) All emails and text messages (whether sent by SMS, WhatsApp or otherwise) passing between Janis McKay and Mark McKay concerning arrangements for Emiliano Sala to fly from Cardiff to Nantes on 19 January 2019 and from Nantes to Cardiff on 21 January 2019. (f) All emails and text messages (whether sent by SMS, WhatsApp or otherwise) passing between Janis McKay and any other person concerning arrangements for Emiliano Sala to fly from Cardiff to Nantes on 19 January 2019 and from Nantes to Cardiff on 21 January 2019.” (a) All emails and text messages (whether sent by SMS, WhatsApp or otherwise) passing between Willie McKay and any officer or employee of FC Nantes concerning the transfer or potential transfer of Emiliano Sala from FC Nantes, whether to Cardiff City Football Club Ltd or any other club or generally. (b) All emails and text messages (whether sent by SMS, WhatsApp or otherwise) passing between Willie McKay and Mark McKay concerning the transfer or potential transfer of Emiliano Sala from FC Nantes, whether to Cardiff City Football Club Ltd or any other club or generally. (c) All emails and text messages (whether sent by SMS, WhatsApp or otherwise) passing between Willie McKay and any officer or employee of any football club (other than Cardiff City Football Club Ltd) concerning the transfer or potential transfer of Emiliano Sala from Nantes, whether to Cardiff City Football Club Ltd or any other club or generally. (d) All emails and text messages (whether sent by SMS, WhatsApp or otherwise) passing between Willie McKay and any officer or employee of FC Nantes concerning arrangements for Emiliano Sala to fly from Cardiff to Nantes on 19 January 2019 and from Nantes to Cardiff on 21 January 2019. (e) All emails and text messages (whether sent by SMS, WhatsApp or otherwise) passing between Willie McKay and Mark McKay concerning arrangements for Emiliano Sala to fly from Cardiff to Nantes on 19 January 2019 and from Nantes to Cardiff on 21 January 2019. (f) All emails and text messages (whether sent by SMS, WhatsApp or otherwise) passing between Willie McKay and any other person concerning arrangements for Emiliano Sala to fly from Cardiff to Nantes on 19 January 2019 and from Nantes to Cardiff on 21 January 2019. (a) All emails and text messages (whether sent by SMS, WhatsApp or otherwise) passing between Mark McKay and any officer or employee of FC Nantes concerning the transfer or potential transfer of Emiliano Sala from FC Nantes, whether to Cardiff City Football Club Ltd or any other club or generally. (b) All emails and text messages (whether sent by SMS, WhatsApp or otherwise) passing between Mark McKay and Willie McKay concerning the transfer or potential transfer of Emiliano Sala from FC Nantes, whether to Cardiff City Football Club Ltd or any other club or generally. (c) All emails and text messages (whether sent by SMS, WhatsApp or otherwise) passing between Mark McKay and any officer or employee of any football club (other than Cardiff City Football Club Ltd) concerning the transfer or potential transfer of Emiliano Sala from Nantes, whether to Cardiff City Football Club Ltd or any other club or generally. (d) All emails and text messages (whether sent by SMS, WhatsApp or otherwise) passing between Mark McKay and any officer or employee of FC Nantes concerning arrangements for Emiliano Sala to fly from Cardiff to Nantes on 19 January 2019 and from Nantes to Cardiff on 21 January 2019. (e) All emails and text messages (whether sent by SMS, WhatsApp or otherwise) passing between Mark McKay and Willie McKay concerning arrangements for Emiliano Sala to fly from Cardiff to Nantes on 19 January 2019 and from Nantes to Cardiff on 21 January 2019. (f) All emails and text messages (whether sent by SMS, WhatsApp or otherwise) passing between Mark McKay and any other person concerning arrangements for Emiliano Sala to fly from Cardiff to Nantes on 19 January 2019 and from Nantes to Cardiff on 21 January 2019. (a) All emails and text messages (whether sent by SMS, WhatsApp or otherwise) passing between Janis McKay and any officer or employee of FC Nantes concerning the transfer or potential transfer of Emiliano Sala from FC Nantes, whether to Cardiff City Football Club Ltd or any other club or generally. (b) All emails and text messages (whether sent by SMS, WhatsApp or otherwise) passing between Janis McKay and Mark McKay concerning the transfer or potential transfer of Emiliano Sala from FC Nantes, whether to Cardiff City Football Club Ltd or any other club or generally. (c) All emails and text messages (whether sent by SMS, WhatsApp or otherwise) passing between Janis McKay and any officer or employee of any football club (other than Cardiff City Football Club Ltd) concerning the transfer or potential transfer of Emiliano Sala from Nantes, whether to Cardiff City Football Club Ltd or any other club or generally. (d) All emails and text messages (whether sent by SMS, WhatsApp or otherwise) passing between Janis McKay and any officer or employee of FC Nantes concerning arrangements for Emiliano Sala to fly from Cardiff to Nantes on 19 January 2019 and from Nantes to Cardiff on 21 January 2019. (e) All emails and text messages (whether sent by SMS, WhatsApp or otherwise) passing between Janis McKay and Mark McKay concerning arrangements for Emiliano Sala to fly from Cardiff to Nantes on 19 January 2019 and from Nantes to Cardiff on 21 January 2019. (f) All emails and text messages (whether sent by SMS, WhatsApp or otherwise) passing between Janis McKay and any other person concerning arrangements for Emiliano Sala to fly from Cardiff to Nantes on 19 January 2019 and from Nantes to Cardiff on 21 January 2019.”
[10]The Defendants have never challenged the Disclosure Order, whether by appeal or otherwise.

B: Alleged failure to comply with the Disclosure and the Contempt Application

[11]The Claimant alleges that the Defendants failed to comply with the Disclosure Order by the deadline of 26 February 2024. Consequently, the Claimant initiated contempt proceedings against the Defendants on 27 February 2024 (“the Contempt Application”).[12]As the Contempt Application has yet to be determined, I shall only give a summary of the position adopted by the Defendants. Each Defendant provided a witness statement in which s/he explained difficulties in locating and/or extracting the documents that fell within the terms of the Disclosure Order.[13]It is important to note, at this stage, that the Defendants have instructed two firms of solicitors in this matter. In relation to the original Part 8 Claim, the Defendants instructed IPS Law LLP. In relation to the Contempt Application, they instructed Taylor Rose LLP.

C: Further efforts by the Claimant to enforce the Disclosure Order

[14]On 5 March 2024, HHJ Keyser KC adjourned the Contempt Application, but he also made an order requiring each Defendant, by 12 March 2024, to provide a witness statement(a) identifying their relevant devices and email addresses/telephone numbers; and(b) explaining the nature of the search that they had carried out. Belatedly, on 21 March 2024, each Defendant provided a witness statement in which s/he stated that s/he had no disclosable documents, but offering to provide his/her devices to an independent forensic IT expert to be searched for documents that fell within the terms of the Disclosure Order.[15]Meanwhile, on 13 March 2024, the Claimant issued an Application Notice seeking delivery up of the Defendants’ devices. The Contempt Application was listed for hearing on 31 July 2024, but was subsequently adjourned due to the ill-health of the First Defendant.[16]The application for delivery up came before Griffiths J on 22 March 2024. He ordered a timetable whereby: i) the Defendants must deliver up the devices specified in the Order to an independent forensic computer expert; ii) the expert should extract documents/data that appeared to fall within the target period and provide this to the Defendants’ solicitors (“the Extracted Data”); and iii) the Defendants’ solicitors should then review the Extracted Data to identify documents that fell to be disclosed in accordance with the Disclosure Order and provide any such documents to the Claimant’s solicitors.[17]As a result, on 17 April 2024, the Defendants’ solicitors confirmed to the Claimant’s solicitors that they had reviewed the Extracted Data (which comprised 5,988 documents) and provided 392 that fell to be disclosed under the Disclosure Order to the Claimant’s solicitors.[18]The Claimant remained unsatisfied that there had been full compliance with the terms of the Disclosure Order by the Defendants. One area of challenge was the extent to which documents had been properly withheld based on legal professional privilege. On 2 May 2024, it issued a further Application Notice seeking, amongst other things, an order that an independent barrister should undertake a review of the documents identified from the target period (“the Further Disclosure Application”).[19]On 3 July 2024, the Claimant’s solicitors wrote an open letter to the Defendants’ solicitors (“the 3 July Offer”) which included the following: “4. Following your firm’s review of those documents for relevance and privilege, your clients disclosed only 392 documents to CCFC. Your rationale for the limited volume (sic) of documents disclosed was set out in a spreadsheet which, we have argued, contains many inaccuracies, and wrongly applied the principle of legal privilege. 5. CCFC now has no choice but to challenge your firm’s review of those documents by way of a further application to court, which will need to be decided before the Committal hearing listed on 31 July. 6. Mindful of the time and costs incurred by the parties to date, and eager to avoid another court application, our client wishes to put forward two alternative offers settlement for your clients’ consideration. For the avoidance of doubt, the offers are made on an open basis: 6.1. Your clients will disclose to this firm the 5,988 documents found on their devices and accounts. We will examine those documents and will return to you those that do not fall within the scope of the disclosure Order. We will not in any way disclose to our client the contents of any returned document. In exchange our client will(i) forego its costs;(ii) reiterate your clients’ release from liability; and(iii) consider your clients’ breaches of court orders to be purged. 6.2. As an alternative, our client is prepared not to issue a further application to court challenging IPS’ review of documents if your clients consent for Celine Jones of this office to attend IPS Law’s offices to review under the supervision of IPS Law the 5,988 documents found on your clients’ devices and accounts. The purpose of this exercise would be for our firms to narrow down the issues in dispute between the parties as to what documents fell or not to be disclosed. Any documents in dispute would be referred to an independent Counsel instructed by both parties for final determination. In exchange our client would (i) forego its costs; (ii) reiterate your clients’ release from liability; and (iii) consider your clients’ breaches of court orders to be purged. 7. Given the committal hearing is 4 weeks away, these alternative offers are open for acceptance until 3pm on Friday 5 July 2024. 8. If your clients do not accept either of these offers, CCFC will revive its application for an independent review of the 5,988 documents found on your clients’ devices and accounts and seek to recover its costs from your clients. Our client’s position in relation to the Committal application remains reserved in the meantime”. 6.1. Your clients will disclose to this firm the 5,988 documents found on their devices and accounts. We will examine those documents and will return to you those that do not fall within the scope of the disclosure Order. We will not in any way disclose to our client the contents of any returned document. In exchange our client will (i) forego its costs; (ii) reiterate your clients’ release from liability; and (iii) consider your clients’ breaches of court orders to be purged. 6.2. As an alternative, our client is prepared not to issue a further application to court challenging IPS’ review of documents if your clients consent for Celine Jones of this office to attend IPS Law’s offices to review under the supervision of IPS Law the 5,988 documents found on your clients’ devices and accounts. The purpose of this exercise would be for our firms to narrow down the issues in dispute between the parties as to what documents fell or not to be disclosed. Any documents in dispute would be referred to an independent Counsel instructed by both parties for final determination. In exchange our client would (i) forego its costs; (ii) reiterate your clients’ release from liability; and (iii) consider your clients’ breaches of court orders to be purged. 7. Given the committal hearing is 4 weeks away, these alternative offers are open for acceptance until 3pm on Friday 5 July 2024. 8. If your clients do not accept either of these offers, CCFC will revive its application for an independent review of the 5,988 documents found on your clients’ devices and accounts and seek to recover its costs from your clients. Our client’s position in relation to the Committal application remains reserved in the meantime”.[20]The Further Disclosure Application was heard on 31 July 2024. It was dismissed by Griffiths J ([2024] EWHC 2953 (KB)). The Judge considered 18 specific documents that were challenged by the Claimant. Of these, only three raised unresolved questions. He emphasised that the Defendants’ solicitors, as officers of the Court, were presumed to act ethically. Mistakes in a disclosure exercise did not automatically suggest bad faith or incompetence. The request for an independent barrister to review the disclosure provided was found to be disproportionate. The Court made a limited order requiring the Defendants’ solicitors to reconsider the 18 documents afresh, disclose any that were found to be within the scope of the Disclosure Order, and file a witness statement confirming the outcome of this review.[21]In compliance with Griffiths J’s order, the Defendants’ solicitor, Christopher Farnell, filed a witness statement, dated 12 August 2024, confirming that he had carried out a review of the 18 documents and that he was satisfied that none fell to be disclosed under the Disclosure Order.[22]There has been no challenge to Griffiths J’s decision or order. The Claimant has not sought to challenge the disclosure provided by the Defendants under the Disclosure Order by any further application to the Court.[23]The Claimant has argued that, in his decision, Griffiths J had not found that the Defendants had complied with the Disclosure Order. I suppose, strictly, that is correct. But that point has no real substance. The Disclosure Order required the Defendants to disclose documents that fell within the identified categories. Eventually they disclosed 392 documents. The Claimant was not satisfied that this was the full extent of the documents to which it was entitled under the Disclosure Order and so made the Further Disclosure Application. The Claimant could reasonably have been expected – and, indeed, was probably required – to bring all complaints about compliance with the Disclosure Order in a single application. Absent a change in circumstances, the Court does not usually permit a party to have several bites at the cherry.[24]On 2 September 2024, the Defendants’ solicitors sent an email to the Claimant’s solicitors asking whether the Claimant was going to withdraw the Contempt Application.[25]On 4 September 2024, the Claimant’s solicitors confirmed that the Claimant would not withdraw the contempt application. The letter:(1) raised a point on Mr Farnell’s witness statement, and generally reserved the Claimant’s position on its contents;(2) sought payment of outstanding costs of £6,078 awarded to the Claimant from the Disclosure Application; and(3) sought the listing of the Contempt Application before the end of the year. Despite the reservation of position, the Claimant has since not returned to or sought to challenge Mr Farnell’s witness statement.

D: The without prejudice communications

[26]The without prejudice communications, the parties’ submissions on what they demonstrate, and my assessment of them, are set out in the Confidential Annex to this judgment.

E: The Contempt Application is listed for a hearing

[27]Due to the ill-health of the First Defendant, the Contempt Application could not be fixed for hearing until 9 May 2025.[28]On 6 March 2025, I made an order requiring the parties to exchange skeleton arguments for the Contempt Application by 4.30pm on 28 April 2025. The Order also required the parties to agree a timetable for the hearing.[29]On 7 March 2025, the Defendants applied to the Court, pursuant to Regulation 18 of the Criminal Legal Aid (Determinations by a Court and Choice of Representative) Regulations 2013, to extend the legal aid representation order to enable them to instruct Leading Counsel (“the Leading Counsel Application”). One of the several grounds advanced in support of the Leading Counsel Application was that the Contempt Application “will involve examination of the underlying motive for bringing these proceedings, as a potential abuse of process”. At that stage, the Defendants were not alleging, in terms, that the Contempt Application was an abuse of process.[30]I refused the Leading Counsel Application, without a hearing, on 24 March 2025. The Order set out my reasons and included the following: “(C) In summary, and for the reasons explained below, I am not satisfied that:(a) the Defendants’ case involves either novel or complex issues of law or fact which could not be adequately presented except by a [King]’s Counsel assisted by a junior advocate; or(b) in relation to the particular Contempt Applications, that the Defendants’ case is exceptional compared with the generality of cases involving similar contempt applications. (D) In my view, although the Contempt Applications arise in the wider context of potentially complex and high-profile litigation, there is nothing complex in the Contempt Applications or anything that marks them out as being exceptional when compared to similar contempt applications. On the contrary, they appear to be prosaically straightforward. It is to be remembered that the immediate claim, in which the Contempt Applications are made, [has] been resolved by agreement in a Tomlin Order. Beyond the Contempt Applications (and any other enforcement action), there is no further role for the Court in relation to the claim.” (a) the Defendants’ case involves either novel or complex issues of law or fact which could not be adequately presented except by a [King]’s Counsel assisted by a junior advocate; or (b) in relation to the particular Contempt Applications, that the Defendants’ case is exceptional compared with the generality of cases involving similar contempt applications.[31]My conclusion as to the issues in the Contempt Application was reached on the basis that, as matters stood when I made the Order, the Disclosure Order had required the Defendants to disclose documents in various categories by a certain deadline and they had, apparently, failed to do so (albeit belatedly providing 392 documents – see [17] above).[32]At this stage, the Defendants made no application to strike out or dismiss the Contempt Application as an abuse of process.[33]On 28 April 2025, in compliance with the directions I had given, the parties filed and exchanged skeleton arguments for the Contempt Application on 9 May 2025.[34]The Claimant’s skeleton argument addressed the relevant principles and set out the relevant history of the alleged non-compliance with the Disclosure Order. In that respect, the contents were as I would have expected.[35]The Defendants’ skeleton argument was different. Together with accompanying attachments, it ran to over 100 pages, including a witness statement from the Defendants’ solicitor. In the skeleton, the Defendants alleged, for the first time, that “the Claimants have committed a gross abuse of process in using the threat of continuing these contempt proceedings to obtain disclosures to which they are not entitled”. In consequence, the Defendants argued that the Contempt Application should be struck out pursuant to CPR 3.4(2)(b). The skeleton argument relied upon without prejudice communications including, within the documents exhibited to the skeleton, a transcript of a telephone conversation between the parties’ solicitors on 29 January 2025.[36]Perhaps unsurprisingly, the arrival of the Defendants’ skeleton argument pack provoked a flurry of (at times, acrimonious) correspondence, including communications with the Court. It was hugely disruptive. Having regard to the fact that the Defendants apparently had in mind the issue of abuse of process at the time of the Leading Counsel Application, the Defendants may well be open to criticism that they should have made a formal application to strike out the Contempt Application well in advance of announcing this in their skeleton argument for the substantive hearing. An Application Notice seeking the striking out of the Contempt Application was not issued until 29 April 2025.[37]Further, the unilateral decision by the Defendants (without warning to the Claimant) to rely upon, and to send to the Court, without prejudice communications was a breach of the procedure to be adopted in cases like this: see e.g. Berg -v- IML London Ltd [2002] 1 WLR 3271 [25], [35] approved by the Court of Appeal in Cammack -v- Gresham Pension Trustees [2016] EWCA Civ 655; [2016] 4 Costs L.O. 691 [23]-[24] per Sharp LJ.[38]If, as here, there has been no waiver of the privilege, the party asserting that s/he is nevertheless entitled to rely upon the ostensibly privileged communications must raise the issue with the opposing party and the Court, without disclosing the communications to the Court, so that the issue can be dealt with appropriately. Resolution of a dispute over privilege will usually necessitate a separate hearing, occasionally before a different Judge.[39]The arrival of the application to dismiss the Contempt Application and its reliance on without prejudice communications (as could have been predicted) caused significant disruption in the week before the hearing, that required the Court to get involved to referee increasingly acrimonious correspondence between the parties. In the absence of agreement as to how matters were to proceed, on 7 May 2025, I directed that the only issue that would be resolved at the hearing on 9 May 2025 would be the issue of whether the Defendants were entitled to rely upon the without prejudice communications in support of their contention that the Claimant’s continued pursuit of the Contempt Application was an abuse of process. It was my assessment that the privilege argument would take up the time available on 9 May 2025. I directed that skeleton arguments on this point were to be filed and exchanged on 8 May 2025.[40]On 8 May 2025, the Claimant filed a further witness statement from its solicitor, Celine Jones (her tenth). It advanced the Claimant’s argument that Griffiths J’s order had not determined that the Defendants had complied with the Disclosure Order (see [23] above). The witness statement referred to and exhibited further without prejudice communications. Ms Jones also gave evidence about settlement discussions by telephone between the First Defendant and the Chairman of the Claimant between October 2024 and February 2025.[41]Whilst exhibiting further correspondence, although the day before the hearing, would not have been unfair to the Defendants, Ms Jones had referred to two without prejudice telephone calls that took place, on 7 and 8 October 2024 between her and Mr Farnell, of IPS Law, the Defendants’ solicitors instructed in the main proceedings. This did potentially cause a problem, not least a practical one that the Defendants had instructed separate solicitors, Taylor Rose, for the Contempt Application and the Defendants’ new solicitors had not had an opportunity to seek Mr Farnell’s instructions on Ms Jones’ evidence about the two telephone calls in October 2024. Fairness also suggested that the First Defendant should have an opportunity to answer the allegations of what he was alleged to have said to the Chairman of the Claimant during their settlement discussions to which Ms Jones had referred.[42]At the hearing, on 9 May 2025, to avoid an adjournment of the hearing, the Claimant agreed that the Court would not admit into evidence what Ms Jones had said in her witness statement about the settlement discussions between the First Defendant and the Claimant’s Chairman. I have therefore excluded this from the evidence I have considered on this application. G: Without prejudice privilege: legal principles (1). Rationale and extent[43]I derive the following principles from Unilever plc -v- Procter & Gamble Co [2000] 1 WLR 2436 and Motorola Solutions Inc -v- Hytera Communications Group Corporation Ltd [2021] QB 744: i) The protection of without prejudice communications is a rule of public policy. It is to encourage parties to settle disputes without fear that their negotiations will later be used against them in Court: Unilever @ pp.2441H-2442D per Robert Walker LJ. Parties should be able to “speak freely about all issues in the litigation both factual and legal when seeking compromise”: @ p.2449A-B. ii) The rule is also, in part, founded on an agreement between parties (express or implied) that communications during settlement discussions are inadmissible: Unilever @ p.2442D-2443H, citing Hoffmann LJ in Muller -v- Linsley & Mortimer [1996] PNLR 74, 77. iii) The rule promotes the freedom to negotiate candidly by allowing parties to “put their cards on the table” without the risk of admissions being later used as evidence: Unilever @p.2449B; Motorola [57] per Males LJ. iv) Courts must be astute to prevent the erosion of the rule through too ready use of exceptions:
“The without prejudice rule must be scrupulously and jealously protected so that it does not become eroded”: Motorola[30]-[31]. (2). Exceptions to the without prejudice protection: “unambiguous impropriety”
[44]The principal occasions on which the protection from disclosure of without prejudice communications can be lost are identified in Unilever @ p.2444D-2445G. The Defendants contend that the current case falls in the fourth category: unambiguous impropriety. Robert Walker LJ explained:
“… one party may be allowed to give evidence of what the other said or wrote in without prejudice negotiations if the exclusion of the evidence would act as a cloak for perjury, blackmail or other ‘unambiguous impropriety’ (the expression used by Hoffmann L.J. in Forster -v-. Friedland (unreported), 10 November 1992...”
[45]Mr Holmes has relied upon Ferster -v- Ferster [2016] EWCA Civ 717. In that case,the issue was whether an email, sent in the context of a mediation, lost the protection of without prejudice privilege on the grounds that it demonstrated unambiguous impropriety. The claimant brought a petition alleging that his brothers, S and W, were pressurising him to buying their shares at an inflated price. During mediation, a mediator relayed an email from S and W that included threats of committal proceedings and criminal charges unless the claimant agreed to a higher purchase price for their shares. At first instance, Rose J held that the email had been an attempt at blackmail. It contained clear threats of criminal and civil proceedings, reputational damage, and harm to the claimant’s partner. These were intended to coerce him into paying more by way of settlement. The threats were not tied to any legitimate increase in share value and were used to gain a personal financial advantage for S and W. The impropriety was clear and not dependent on the truth of the allegations or whether the threats were carried out. The Judge held that the email was admissible, and not protected by privilege, falling into the “unambiguous impropriety” exception.[46]In dismissing the appeal, the Court of Appeal agreed that the threats unambiguously exceeded what was “permissible in settlement of hard fought commercial litigation” (Boreh -v- Republic of Djibouti [2015] EWHC 769 (Comm) [132] per Flaux J) and that was not necessary for the threats to fall within any formal definition of blackmail for them to be regarded as unambiguously improper: [23]-[24]. (3). Improper threats and the use of contempt proceedings to achieve an impermissible objective[47]The Defendants submit that the context is important. They allege that the unambiguous impropriety arises from inappropriate threats made by the Claimant to continue with the Contempt Application in order to obtain disclosure to which they were not entitled.[48]It is not uncommon for contempt proceedings to be brought while there are pending civil proceedings between the same parties. Sometimes, a defendant to a contempt application alleges that the person pursuing the contempt application is using that application to apply inappropriate pressure upon him/her to settle the main litigation. On this point, the law is clear. In Integral Petroleum SA -v- Petrogat FZE (No.2) [2020] EWHC 558 (Comm) [36], Foxton J approved the following passage (§20-024) from Gee on Commercial Injunctions (6th edition, Sweet & Maxwell, 2016) (itself derived from the Court of Appeal decision in Knox -v- D’Arcy Ltd (unreported, 19 December 1995)):
“The threat of contempt proceedings or of continuing contempt proceedings should not be made for any purpose other than securing compliance with the relevant order of the court. To use such a threat to secure a settlement is a gross abuse of process of the court and itself constitutes a contempt of court”
. Foxton J’s decision on this point was approved by the Court of Appeal in Navigator Equities Ltd -v- Deripaska [2022] 1 WLR 3656 [121]. I would note that Integral Petroleum is not an authority on the loss of without prejudice privilege. In that case, the claimant did not object to the defendants’ reliance on without prejudice communications: [45].[49]The current edition of Gee on Commercial Injunctions (7th edition, Sweet & Maxwell, 2022) suggests (§20-014): “Contempt proceedings should only be brought in the public interest, are to be advanced in the same way as a criminal prosecutor is expected to conduct criminal proceedings, and not as a private prosecution. They should not be brought so as to obtain personal gain, which is an improper purpose. These principles apply when considering whether a threat of contempt proceedings is improper and whether contempt proceedings should be struck out as an abuse of the process. Abuse of the process is not confined to where there is malice or spite”.[50]No authority is cited for that statement, and it is perhaps important to note the Court of Appeal’s decision, in Navigator Equities, that private applicants in civil contempt applications are not required to act “as wholly disinterested parties” [137]. Indeed, the Court of Appeal held that the motivation of the applicant in prosecuting otherwise viable contempt proceedings is irrelevant [110]:
“…where a civil contempt application (i) is made in accordance with the relevant procedural requirements; (ii) is properly arguable on the merits (by reference to the necessary constituents of a claim for contempt); and (iii) has the effect (and so at least the objective purpose) of drawing to the attention of the court to an allegedly serious contempt, then the fact that the application is motivated, whether predominantly or even exclusively, by a personal desire for revenge on the part of the applicant is not a good reason for striking out the application as an abuse of process.”
[51]There is often a tension underlying the prosecution of a contempt application. A party who has obtained an injunction from the Court has an immediate and legitimate, private, interest in securing compliance with its terms, by contempt proceedings if required. S/he is also likely to have a direct interest in purely historic breaches of the Court’s order. There is a corresponding public interest – in upholding the rule of law – in ensuring that Court injunctions are obeyed (and disobedience punished, when necessary). But the litigant to whom the injunction has been granted is also likely to have a private interest in securing the best settlement s/he can achieve of the overall litigation.[52]In Integral Petroleum, Foxton J rejected the argument that the contempt application was an abuse of process. He held that the claimant had not improperly sought to force a settlement and that its actions were a legitimate response to breaches of court orders. Nevertheless, the Judge recognised that it will not always be easy to disentangle these objectives in the context of hard-fought litigation [42]: “There is no doubt that committal proceedings are a far more frequent feature of commercial litigation now than previously, and than they were at the time that Knox was decided. Once a committal application has been issued, any settlement of the overall commercial dispute is necessarily going to have to address the position of the committal application, with most respondents being understandably concerned to ensure that the settlement ties up all matters including the contempt, and most claimants themselves wanting to draw a line under the litigation in terms of further costs and management time (in circumstances in which the continuation of the committal application will inevitably involve the claimants in the further expenditure of both). It can never be proper to seek to use a committal application as a lever to bully a respondent into a settlement. However, the practical consideration that resolving an outstanding committal application will in most cases be necessary to achieve a settlement of the commercial dispute means that the court should not jump too readily to the conclusion that references in the settlement communications to the disposal of the committal proceedings or the timing of the committal proceedings evidence an improper purpose on the claimant’s part, or involve the use of the committal proceedings as some form of improper threat.[53]A principal plank of the Defendants argument as to unambiguous impropriety is that the Claimant has sought to use the Contempt Application “to obtain disclosures to which they are not entitled”. However, it is important to understand that in legal settlements, it is common and acceptable for parties to negotiate for outcomes that go beyond what the Court could order if the case went to trial. For example, in a defamation case, a claimant might ask for, and obtain, a public apology as part of a settlement – even though that is a remedy the Court cannot grant.

H: Assessment and conclusion

[54]For the reasons explained in the Confidential Annex, the Defendants have fallen well short of demonstrating any unambiguous impropriety. Viewed in context, the negotiations between the parties were unremarkable and, indeed, fairly typical of hard-fought commercial litigation. Both sides, represented throughout by experienced legal advisors, clearly and candidly expressed their objectives during these discussions. Notably, there was no complaint at the time from the Defendants suggesting that the Claimant was using the pending Contempt Application to pressure them into an unfavourable settlement. In my view, this silence is telling. It indicates that the Defendants were fully prepared to negotiate, with the potential discontinuance of the Contempt Application being one of several bargaining chips on the table. At the time, neither the Defendants nor their legal representatives considered the Claimant’s position to be improper. The cry of “unambiguous impropriety” has only been raised – much later, and after negotiations failed to reach an agreement – in an effort to provide an evidential platform from which to argue that the Contempt Application should be struck out as an abuse of process.[55]Consequently, the without prejudice communications remain protected and are inadmissible as evidence in the Defendants’ application to strike out the Contempt Application as an abuse of process.

I: Next steps

[56]The Contempt Application has been outstanding for far too long. Proceedings for contempt of court must be dealt with as soon as fairly possible. Part of the delay in this case has been caused by the ill-health of the First Defendant, but it is not in his interests to have these proceedings hanging over him. As I indicated at the hearing, the Contempt Application will be fixed to be heard before the end of July.