In Jet 2 Holidays Ltd v Hughes [2020] 1 WLR 844 the Court of Appeal held that:
- CPR r 32.14, the provision which provides for committal proceedings against a person if they make, or cause to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth, did not confer jurisdiction to bring committal proceedings in respect of a witness statement that had been made before the commencement of proceedings.
- However, if a statement made before the commencement of proceedings interfered with the due administration of justice the court would be able to exercise its inherent power to commit for contempt in respect of it.
- Since pre-action protocols were now an integral and highly important part of litigation architecture, a dishonest witness statement made before the commencement of proceedings in purported compliance with a pre-action protocol was capable of interfering with the due administration of justice, even though, following a challenge by the prospective defendant to the truth of the statement, proceedings for substantive relief were never issued.
- The witness statements in the present case were closely connected to the administration of justice and, if false, interfered with it, thus giving rise to jurisdiction to commit the defendants for contempt.
- However, on a true construction of CPR r 81.13(2) , the witness statements had been made “otherwise than in connection with any proceedings”, which phrase referred to proceedings commenced before the contempt was committed.
- Therefore, the application for permission to make a committal application should have been made to the Administrative Court, but that procedural defect would be waived, pursuant to paragraph 16.2 of CPR Practice Direction 81, and permission would be granted.
- That, further, since the new witness statements fell within CPR r 32.14 and there was a clear public interest in the bringing of contempt proceedings in respect of them, the claimant would be granted permission to amend its claim form to add the new grounds of contempt.
In the judgment of the court it was said:
“50. It is not satisfactory that false statements made in witness statements served before the commencement of proceedings in purported compliance with a PAP fall outside CPR r 32.14 . Nor is it satisfactory or convenient that any application for permission to bring contempt proceedings for such false statements must always be made to the Administrative Court pursuant to CPR r 81.13(2) . It is highly desirable, therefore, that the possibility of contempt in relation to such statements should be expressly addressed in the Civil Procedure Rules and a practice direction.”
A few months later, on the 16 July 2020, the 122nd amendment to the CPR was produced and included an amendment to the Practice Direction: Pre-Action Conduct and Protocols with effect from 1 October 2020:
“In paragraph 2, at the end insert “A person who knowingly makes a false statement in a pre-action protocol letter or other document prepared in anticipation of legal proceedings may be subject to proceedings for contempt of court.”.”
Pre-action letters are important in sub-letting, allocation fraud, etc cases where a possession claim or other proceedings are being contemplated and are usually expressly made pursuant to Part 3 of the Pre-action Protocol for Possession Claims by Social Landlords.
This may appear to take them outside of the amended Practice Direction, which says at paragraph 2:
“This Practice Direction applies to disputes where no pre-action protocol approved by the Master of the Rolls applies.”
but a proper reading of this practice direction must rather demonstrate that the amendment will apply even if a pre-action protocol operates.
It follows that it would be good practice from 1 October 2020 to include a warning in pre-action correspondence that false statements may lead to contempt proceedings.