Contempt of Court: Westwood v Knight

I wrote about Westwood v Knight [2011] EWPCC 8 in this blog last year because the defendant, Tony Knight, came from Manchester (see "Trade Mark, Copyright and Passing Off: Westwood v Knight" 1 April 2011). In that case His Honour Judge Birss QC found that Mr. Knight had infringed Dame Vivienne Westwood's copyrights and trade marks and had passed off his goods as and for hers.  According to Westwood v Knight (No 2) [2012] EWPCC 6 (6 Feb 2012) the judge had granted injunctions, orders for delivery up of infringing goods upon verification under oath and other relief to the claimant.

It appears that Mr. Knight paid scant regard to those orders because the judge found no less than 15 breaches in Westwood v Knight (No. 3)  [2012] EWPCC 14 (24 April 2012).   These included:
  • Failure to deliver up infringing items to the claimant's solicitors;
  • Failure to serve affidavit relating to delivery up of infringing items on the claimant's solicitors;
  • Failure to transfer the domain name www.2fasttolive.co.uk to the claimant;
  • Infringement of registered Community trade mark TOO FAST TO LIVE TOO YOUNG TO DIE (+ device) and passing off by use (of the words, the device and the words and device together) in trade including (i) on the defendant's website and (ii) as the name of a limited company;
  • Infringement of the copyright in the claimant's TOO FAST TO LIVE TOO YOUNG TO DIE device;
  • Infringement of registered Community and UK trade marks for the Vivienne Westwood Orb mark and passing off by use in trade including the Defendant's website;
  • Infringement of the copyright in the claimant's VIVIENNE WESTWOOD + Orb device; 
  • Passing off by use of WESTWOOD in trade including the defendant's website; 
  • Passing off by use of WORLD'S END in trade including the defendant's website;   
  • Passing off by use of LET IT ROCK in trade including the defendant's website; 
  • Passing off by use of ARM & CUTLASS device in trade including the defendant's website; 
  • Passing off by use of I ♥ CRAP device in trade including the defendant's website;  and
  • Passing off by use of the Lips device in trade including the defendant's website.
His Honour made those findings in Mr. Knight's absence because Mr. Knight failed to attend the hearing of Dame Vivienne's application for his committal for contempt. Indeed, he failed to attend two previous hearings of the application on 20 Dec 2011 and  3 Feb 2012.

Because there were once different sets of rules of court for the High Court and the County Courts, committal proceedings in the High Court are governed by Order 52 of the Rules of the Supreme Court as preserved by Schedule 1  to the Civil Procedure Rules and those in the County Courts by Order 29 of the County Court Rules as preserved by Schedule 2.  There is also a Practice Direction which is common to both provisions (PD RSC 52 and CCR 29 - Committal Applications)

Rule1 (1) of Order 29 provides:
"Where a person required by a judgment or order to do an act refuses or neglects to do it within the time fixed by the judgment or order or any subsequent order, or where a person disobeys a judgment or order requiring him to abstain from doing an act, then, subject to the Debtors Acts 1869 and 18781 and to the provisions of these rules, the judgment or order may be enforced, by order of the judge, by a committal order against that person or, if that person is a body corporate, against any director or other officer of the body."
O29 r 1 (2) and (3) sets out a number of conditions that have to be fulfilled before such a person can be committed. The first is that a copy of the judgment or order should be served personally on the person required to do or abstain from doing the act in question and also, where that person is a body corporate, on the director or other officer of the body against whom a committal order is sought (O29 r1 (1) (a) CCR). Secondly, if a judgment or order requires that person to do an act, rule 1 (1) (b) requires the copy to be served before the expiration of the time within which that person is required to do the act. Thirdly, the judgment or order must be indorsed with a penal notice (O29 r 1 (3) CCR). 

If the person served with the judgment or order still fails to obey it, O29 r 1 (4) CCR provides that the judgment creditor may issue a claim form or, as the case may be, an application notice seeking the committal for contempt of court of that person which claim form or application notice shall be served on him personally.   The application notice is a pons assinorum that causes many committal applications to fail.   O29 r1 (4A) requires the application notice to:
"(a) identify the provisions of the injunction or undertaking which it is alleged have been disobeyed or broken;
(b) list the ways in which it is alleged that the injunction has been disobeyed or the undertaking has been broken;
(c) be supported by an affidavit stating the grounds on which the application is made,
and unless service is dispensed with under paragraph (7), a copy of the affidavit shall be served with the claim form or application notice."
It is amazing how often applicants get that provision wrong. 

An application can sometimes be saved by O29 r1 (7) CCR which provides that:
"Without prejudice to its powers under Part 6 of the CPR, the court may dispense with service of a copy of a judgment or order under paragraph (2) or a claim form or application notice under paragraph (4) if the court thinks it just to do so."
Paragraph 10 of the Practice Direction also provides: 
"The court may waive any procedural defect in the commencement or conduct of a committal application if satisfied that no injustice has been caused to the respondent by the defect."
In Westwood not all the evidence against Mr. Knight had been provided by affidavit as required by O29 41 (4A) (c) and paragraph 3.1 of the Practice Direction.  Judge Birss QC waived that defect on those grounds by considering only the acts of contempt that had been proved by affidavit evidence.

Mr. Knight's absence presented a number of difficulties for the judge. First, Mr. Knight had complained of depression and submitted a sick note from his doctor stating that he was suffering from anxiety and depression and would not be fit for work for 4 weeks. The judge reflected that the application had already been adjourned twice, that there was no evidence that Mr. Knight was unfit to attend court or conduct his own defence and that no useful purpose would be served by adjourning the hearing.

The second difficulty presented by Mr. Knight's absence was that the judge had to be satisfied that he had deliberately breached the court's order. The only possible excuse was that Mr. Knight had lodged an application for permission to appeal which the Court of Appeal had considered in the interval between the February and March hearings.  The judge observed that that of itself did not excuse non-compliance with an order since the order had not been stayed pending the appeal but it was possible that Mr. Knight might not have been aware that that was the case. That uncertainly was removed partly by the refusal of permission to appeal and partly by the dicta of Mr. Justice Christopher Clarke in Masri v Consolidated Contractors International Company SAL and Others [2011] EWHC 1024 (Comm) (5 May 2011) at paragraph [155]:
"In my judgment the power of the court to ensure obedience to its orders for the benefit of those in whose favour they are made would be inappropriately curtailed if, in addition to having to show that a defendant had breached the order, it was also necessary to establish, and to the criminal standard, that he had done so in the belief that what he did was a breach of the order – particularly when a belief that it was not a breach may have rested on the slenderest of foundations or on convenient advice which was plainly wrong."
Judge Birss QC concluded at paragraph [38] of his judgment that it is not necessary to show that Mr Knight appreciated that what he was doing was a breach of the order. If Mr Knight knew of the terms of the order, acted or failed to act in a manner which breached the order and knew of the facts which made his conduct a breach, the contempt will be proved.

The third difficulty was whether Mr. Knight should be sentenced for his contempt in his absence. In Taylor v Persico (unreported 27 Jan 1992) the Court of Appeal had held that, once contempt had been proved, "no penalty should be imposed before the contemnor had been given an opportunity to address the court as to penalty and to apologise to it for the contempt."  There was, of course, no guarantee that Mr. Knight would attend a sentencing hearing.   The obvious solution was a bench warrant but there appeared to be no authority as to whether a county court judge had jurisdiction to make such an order.   Relying on s.38 (1) of the County Courts Act 1984, the judge decided that he had.   In paragraph [149] of his judgment, he said:
"i)    This court has the power to issue a bench warrant to secure Mr Knight's attendance at court.
ii)   Mr Knight should be before the court when I decide how to punish him for the contempts of court he has committed. I will then be able to hear any mitigation which may be put forward by him or on his behalf.
iii)   Mr Knight would be well advised to obtain legal assistance in this matter. I strongly urge him to do so and to do so urgently.
iv)   Mr Knight should attend the handing down of this judgment on 24th April 2012 in order to present his mitigation. If he attends then there will be no need to issue a bench warrant.
v)   If he does not attend, and in the absence of any compelling reason why not, it is likely that on 24th April 2012 I will issue a bench warrant to bring Mr Knight before the court to decide on the proper punishment for his contempts of court."
If anyone wants to discuss this case further he or she should call me on 0161 850 0080 or use my contact form. He or she can also contact me through Facebook, Linkedin, twitter or Xing.

Comments

Anonymous said…
this woman is sad pathetic widow who has to create incorrect bloga sad woman.
Paul Ruane said…
To who ever Has wrote this Blog the information you wrote is inaccurate, I have been following this case in depth and it has been proven that the IPEC courts Richard Redgrave as finally admitted that 5 lots of Evidence submitted By Mr Knight before the hearing was lost and therefore if Mr Knight wants he can appeal the decision.

Why you failed to update this clearly show's that you failed in your report