Patel v Patel & Ors (2017)
Permission was granted to bring contempt proceedings following the court's decision in a probate action that a will had been forged, which gave rise to a prima facie case of a conspiracy by the respondents to make false statements to mislead the court.
The applicant applied for permission to bring contempt proceedings following the court's refusal to grant probate of a will on grounds that it had been forged.
The applicant had been the defendant in probate proceedings in which the first respondent, who was his brother, had been the claimant. The applicant had obtained a grant of probate in respect of his mother's will under which he was the sole executor and beneficiary. His brother's claim was for a grant of probate in respect of a later will from 2005, under which the brother was the sole executor and beneficiary. The court dismissed the claim with indemnity costs, holding that the 2005 will had been forged by the brother and that the brother and his witnesses had made false statements and lied in the witness box. The applicant applied for permission to bring contempt proceedings against his brother and other witnesses in the probate action on the ground that they had been part of a conspiracy to mislead the court, because they had made knowingly false statements about the execution of the 2005 will. The applicant had brought a private prosecution against his brother for forgery and attempting to pervert the course of justice.
The first respondent argued that the applicant was proceeding only out of animosity; that there had been a failure to warn of the possibility of contempt proceedings; and that the private prosecution and contempt proceedings should not both go ahead.
On an application for permission to bring contempt proceedings the court had to be satisfied in respect of five overlapping elements. It had to be shown that there was a strong prima facie case, without the court going into the merits of the case; it also had to be shown that the public interest required the committal proceedings to be brought, and that such proceedings were proportionate and in accordance with the overriding objective, Berry Piling Systems Ltd v Sheer Projects Ltd  EWHC 347 (TCC) applied. The discretion to grant permission should be exercised with great caution to guard against the risk of vindictive litigants using such proceedings to harass persons against whom they had a grievance, and against the danger of reducing the usefulness of proceedings for contempt by allowing them to be pursued where the case was weak or the contempt, if proved, trivial, Honda Motor Co Ltd v Neesam  EWCA Civ 1280 followed. The judgment in the probate action gave rise to a strong prima facie case, without the need to go further into the merits. It was unequivocally in the public interest to bring contempt proceedings where the pleadings and witness evidence had put forward a deliberately false case, Summers v Fairclough Homes Ltd  UKSC 26 considered. The lies in the probate action had not been peripheral but had been at the heart of the proceedings. If the respondents did not accept the judge's findings in the probate action they would have the opportunity to demonstrate their innocence in the committal proceedings. The proceedings were proportionate and in the public interest despite the high level of ill-will between the family members. The anxiety, inconvenience and cost to the respondents was outweighed by the public interest. Failure to warn was a factor, but the respondents had been warned in clear terms of the risk of contempt proceedings if they pursued a false claim, Comet Products (UK) Ltd v Hawkex Plastics Ltd  2 Q.B. 67 and Barnes (t/a Pool Motors) v Seabrook  EWHC 1849 (Admin) considered. The pursuit by the applicant of a private prosecution against his brother was not a bar to contempt proceedings, and vice versa, provided that there was no double punishment. There was no guarantee that the prosecution would continue. Given the exceptionally serious nature of the allegations, the contempt proceedings were proportionate and in accordance with the overriding objective.