When will a Court grant CPR r.81.3(5)(b) Permission, to pursue contempt of court proceedings on the basis the alleged contemor made a false statement verified by a statement of truth?

In England and Wales, there are multiple ways a person's act or omission, might amount to contempt of court ('contempt'). 'Conduct constituting contempt includes, for example, disrupting court proceedings, interference with the due administration of justice, and disobedience of court judgments and orders.' (White Book 2025, Vol 1, commentary 81.1.2)[1].

'...actions done by an individual interfering with the course of justice or attempting to interfere with the course of justice' are '...capable of constituting contempt of court.' (Kabushiki, paragraph 3)[2]). One sub-type of this, is the scenario where an individual interferes, or at least, attempts to interfere, with the course of justice, by: knowingly make a false statement within an affidavit, affirmation or other document verified by a statement of truth (for instance, a statement of case - e.g. claim form, particulars of claim, defence, reply, or a witness statement[3]), or, in a disclosure statement[4]. Such an action might also be a criminal offence[4aa]. 

Where there is an allegation (a 'contempt allegation'), that an individual (the 'alleged contemnor') has made a false statement (verified by a statement of truth), another person may (subject to eligibility rules) issue a contempt application (otherwise known as an 'application to commit' or 'application for contempt of court')[4a] in court, thereby commencing contempt of court proceedings (otherwise known as 'committal proceedings'), against the alleged contemnor, founded on the contempt allegation.

CPR Parts 

The law of contempt is an area of substantive law[5]. However, there are at least 3 relevant CPR Parts:

(a) Part 32, entitled 'Evidence';

(b) Part 22, entitled 'Statements of truth';

(c) Part 81, entitled 'Application and proceedings in relation to contempt of court'[5a]; and

Particular attention is drawn to:

(a) CPR r.32.14 (quoted below), which makes clear that contempt proceedings may be brought against a person who makes or causes to be made a false statement in a document, prepared in anticipation of or during proceedings and verified by a statement of truth, without an honest belief in its truth.

(b) CPR r.81.3(5)(b), which imposes a requirement - that Court permission (which I shall label: 'r.81.3(5)(b) Permission') must be obtained, for a contempt application, based on a contempt allegation(s), to be pursued.

When such CPR r.81.3(5)(b) Permission will be granted is, what this article will focus on. 

R.81.3(5)(b) Permission - case law

This article will consider when the Court will grant CPR r.81.3(5)(b) Permission, in light of:

(1) Malgar Ltd v RE Leach (Engineering) Ltd [2000] C.P. Rep. 39 [2000] FSR 393, High Court (Sir Richard Scott, Vice-Chancellor) on 1.11.99;

(2) Kabushiki Kaisha Sony Computer Entertainment Inc v Ball [2004] EWHC 1192 (Ch) ('Kabushiki'), High Court (Pumfrey J) on 17.5.04;

(3) KJM Superbikes Ltd v Hinton (Practice Note) (also known as Honda Motor Co Ltd v Neesam) [2009] 1 WLR 2406 ('Superbikes')

(4) Liverpool Victoria Insurance Co v Bashir [2012] EWHC 895 (Admin) ('Bashir');

(5) Berry Piling Systems Ltd v Sheer Projects Ltd [2013] EWHC 347 (TCC); [2013] BLR 232 ('Berry'), High Court (Akenhead J) on 28.2.13;

(6) AXA Insurance UK plc v. Rossiter [2013] EWHC 3806 (QB) ('Rossiter'), High Court (Stewart J) on 5.12.13; 

(7) Cavendish Square Holdings BV v Makdessi [2013] EWCA Civ 1540 ('Cavendish Square')

(8) Tinkler v Elliott (also known as Stobart Group Ltd v. Elliott) [2014] EWCA Civ 564 ('Elliott'), Court of Appeal (Gloster LJ; Christopher Clarke LJ; Arden LJ;) on 7.5.14; 

(9) Newson-Smith v Al Zawawi [2017] EWHC 1876 (QB) ('Newson-Smith')

(10) Liverpool Victoria Insurance Co Ltd v Khan [2019] 1 WLR 3833 ('Khan')

(11) Metroline Ltd v Araujo [2021] EWHC 3571 (QB) ('Metroline'), High Court (HHJ Walden-Smith (sitting as a Judge of the High Court) on 5.5.21;

(12) Clarkson v Future Resources FZE [2022] EWCA Civ 230 ('Clarkson'), Court of Appeal (Lewison LJ; Simler LJ; Snowden LJ) on 24.2.22;

(11) Verlox International Ltd v Antoshin [2023] EWHC 86 (Comm) ('Verlox'), High Court (Foxton J) on 20.1.23;

(13) Norman v Adler [2023] EWCA Civ 785 ('Norman'), Court of Appeal (Bean LJ; Thirlwall LJ; Nicola Davies LJ) on 7.7.23;

(14) UK Insurance Ltd v Ali [2024] EWHC 30 (KB) [2024] 1 WLR 4657 ('UK Insurance'), High Court (Pepperall J) on 12.1.24; 

(15) Achille v Calcutt [2024] EWHC 348 (KB) ('Achille'), High Court (Pepperall J) on 19.2.24;

(16) Dennerlein v Barclays Bank UK Plc [2025] EWHC 554 (KB) ('Dennerlein'), High Court (Soole J) on 13.3.25; 

The law of contempt has recently been the subject of a Law Commission report, entitled 'Contempt of Court: Report (Part 1) on Liability' (Law Com No 423; HC Paper No.1433 (Session 2025-26); published 18.11.25), wherein recommendations were made for reform to this area of law (almost entirely changes to the substantive law [6]).

A few of these cases give early, and still helpful, expositions of the law: (a) Malgar[6aa]; (b) Berry[6a]; (b) Elliott[6b]. There are other summaries: (a) Metroline[6f]

SUMMARY 

Permission from the Court is required, to pursue a contempt of court application, against another person (the alleged contemnor) on the basis that the alleged contemnor, knowingly make a false statement in an affidavit, affirmation or other document verified by a statement of truth or in a disclosure statement. The Court won't grant r.81.3(5)(b) Permission, unless '...it is in the public interest for such proceedings to be brought.' (Superbikes, paragraph 16). This is the ultimate question for the Court. The foremost factors in determining this ultimate question, are (cumulatively):

(1) there is a strong prima facie case against the defendant (i.e the alleged contemnor);

(2) the public interest requires the committal proceedings to be brought;

(3) the proposed committal proceedings are proportionate; and

(4) the proposed committal proceedings are in accordance with the overriding objective.

These essential factors were set out, and explained, recently, by Pepperall J in both UK Insurance and then Achille - both discussed below (but also Achille in a footnote[7]).

FALSE STATEMENTS 
CPR r.32.14 - False statements

CPR r.32.14 is entitled 'False statements' and reads:

'Proceedings for contempt of court may be brought against a person who makes or causes to be made a false statement in a document, prepared in anticipation of or during proceedings and verified by a statement of truth, without an honest belief in its truth.

(Part 22 makes provision for statements of truth.)

(Part 81 contains provisions in relation to proceedings for contempt of court.)'

In Berry, Akenhead J, at paragraph 24:

(a) summarised CPR Part 32.14, as covering a situation '...where a person “makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth”.' and

(b) noted, 'Simply as a matter of wording, this would cover a statement made by a person who knew it to be untrue or who was reckless as to whether the statement was true or not. If a person has no idea one way or the other whether what he or she is saying is true, he or she does not have an honest belief that it is true...'

Similarly, Akenhead J in Berry later said:

'...it can be contempt of court for a witness to make a statement, supported by a statement of truth recklessly, that is, saying something which it can be proved beyond reasonable doubt that he or she consciously has no idea whether it is right or wrong.' (paragraph 28)

(for the avoidance of doubt, this subtype of contempt was not created by r.32.14. It existed before the introduction of r.32.14[8]. As Sir Richard Scott VC, in Malgar, said, 'It is not open to Rules of Court to introduce a new category of contempt, and CPR 32.14 does not do that.' (paragraph 8[9]; r.32.14 is a tool for assisting in the policing of statements of truth (Malgar, paragraph 5)[9a]).

More on this below, when r 81.3(5)(b) Permission Ingredient 1 'there is a strong prima facie case against the defendant' is discussed below. 

STATEMENT OF TRUTH

Statement of truth - requirement 

As will be apparent, to fall into this subtype, the false statement must have been made in a document verified by a statement of truth ('SOT'). 

CPR Part 22 concerns SOT. CPR r.22.1 is entitled 'Documents to be verified by a statement of truth'[10]:

(1) r.22.1.(4) states 'A statement of truth is a statement that the maker believes the facts stated in the document to which the statement refers are true.'[10a]

(2) r.22.1(1) to (3) provide:

'(1) The following documents must be verified by a statement of truth-

(a) a statement of case;

(b) a witness statement;

(c) an acknowledgement of service in a claim using the Part 8 procedure;

(d) a certificate of service;

(e) a contempt application under Part 81; and

(f) any other document where a rule or practice direction requires.

(2) Where a statement of case is amended, the amendments must be verified by a statement of truth unless the court orders otherwise.

(3) If an applicant wishes to rely on matters set out in their application notice as evidence, it must be verified by a statement of truth.'

(there are also some special Admiralty documents which must be verified by a statement of truth[11]; r.22.1 contains other provisions about statements of truth)

The phrase 'statement is case' is defined in r.2.3, entitled 'Interpretation', wherein r.2.3(1) contains

'In these Rules...

...

“statement of case”-

(a) means a claim form, particulars of claim where these are not included in a claim form, defence, counterclaim or other additional claim, or reply to defence; and

(b) includes any further information given in relation to them voluntarily or by court order under rule 18.1;'[12]

Consequently, there are a wide range of court litigation related documents, which must be verified by a SOT. False statements in any of these types of documents, will be caught by this subtype of contempt. 

In Clarkson, Simler LJ said, at paragraph 47:

'The signing of a statement of truth is no empty formality. Its importance is emphasised by the potential liability for contempt of court if signed without an honest belief in its truth.'

Simler LJ added, in respect to statements of case with statements of truth, at paragraph 47:

'At interlocutory stages a statement of case, verified by a statement of truth, is itself evidence of the truth of the facts alleged in it: CPR Part 36 (2) (a). It therefore carries considerable weight.'

Statement of truth - wording  

The SOT wording used to be 'I believe/the [X] believes that the facts stated in this [type of document e.g. witness statement] are true'. However, on 6.4.20, some additional words were added to the (end of the existing) SOT. The additional words, to come after the above, are: 

'I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.'

As to the effect of this change, in respect to witness statements was put in the White Book 2025 commmentary, as 'The effect will be to render it impossible for a witness to claim that they were unaware of the consequences of providing a false statement of truth.' (White Book 2025, Vol 1, commentary to r.32.8, paragraph 32.8.1). There is no reason, in the author's view, why this effect would not apply to all person's. All signatories to SOT will know the consequences of signing when there is a false statement in the document they are purporting to verify. 

Legal representative signed statement of truth to document containing the false statement 

The false statement can be in an affidavit, affirmation or other document verified by a statement of truth or in a disclosure statement, signed by:

(a) the person themselves; or

(b) their solicitor (or other legal representative), on their behalf.

Where a legal representative verifies by a statement of truth on behalf of a client, containing a false statsement, it is the legal representative's client, not the legal representative, who is making the false statement. The fact it was the solicitor (or other legal representative) who actually signed the document, containing the false statement, does not mean that the (non-solicitor/non-legal representative) person impugned, did not make the false statement. In Verlox, Foxton J considered this situation (where a legal representative made a statement verified by a statement of truth on behalf of a client). Such verification was taken as confirming the client's belief in the truth of the contents of the statement: CPR PD 22, paras 3.7–3.8. Accordingly, in such a scenario, the rules on permission are applied in the same way as if the (non-solicitor/non-legal representative) person themselves had signed the relevant document. Foxton J held the position cannot be different simply because the allegation is that the defendant authorised and caused his solicitor to make a statement rather than directly making it in his own name (Pepperall J in UK Insurance, at paragraph 29, agreed with Foxton J in Verlox, on this point)[13].

Caused or encouraged some other person to make the false statement 

Where the contempt allegation is that the alleged contemnor caused or encouraged some other person to make the false statement, such a contempt allegation, will not fall within r.81.3(5)(b)[14]. Such a contempt allegation is likely to fall into r.81.3(5)(a) instead (and so, whether or not a contempt application, founded upon such a contempt allegation, requires Court permission, to be pursued, will depend on whether r.81.3(5)(a), particularly the second party, criteria is satisifed). 

LIKELY TO INTERFERE WITH THE ADMINISTRATION OF JUSTICE

In Berry, Akenhead J (in 2013) said, at paragraph 31

'It goes almost without saying after over 15 years of their deployment that statements of truth incorporated in witness statements or in pleadings are and must be regarded as important. People who sign or authorise the signing of such statements of truth must appreciate that there is a real possibility that the Court might act on the basis that they are true and that the opposing party might well have regard to them also.'

CONTEMPT OF COURT 

Standing

To pursue a contempt application, the applicant must have standing. A person only has standing if the would-be applicant is 'someone who is 'directly affected' by the alleged contempts' (UK Insurance, paragraph 36[15]).

In Superbikes (facts in a footnote[16]), Moore-Bick LJ referred to the putative contempt applicant as '...a private individual, usually a party to the proceedings...' (paragraph 9) who '...may well be directly affected by such action' (paragraph 9)[17]. Similarly, at paragraph 17, Moore-Bick LJ in Superbikes said:

'Usually the applicant will be a party to the proceedings in which the statement was made, but I would not exclude the possibility that permission might be granted to someone other than a party if he was, or was liable to be, directly affected by it.'

Public Accountability + Public Role

Contempt proceedings are, in nature, public law proceedings, not private law proceedings. They exist, and are to be pursued, in the public interest. In Superbikes, Moore-Bick LJ said that '...the proceedings are of a public nature' (paragraph 9). They are designed for public accountability (though punishment, if necessary), rather than private accountability (through the payment of damages, for instance). The upshot is that those who pursue contempt proceedings, are fulfilling a public role, rather than a private role. Moore-Bick LJ in Superbikes, at paragraph 11, said:

'When the court gives a private person permission to pursue proceedings for contempt against a witness who is alleged to have told lies in a witness statement it allows that person to act in a public rather than a private role, not to recover damages for his own benefit, but to pursue the public interest.'

As will be seen below, this filters into when r.81.3(5)(b) Permission will be granted. 

Witness Immunity 

The public nature of contempt proceedings feeds into the availablility, or more precisely, the lack of availability, of witness immunity.

While witnesses in litigation enjoy some immunity while giving evidence, this does not extend to contempt proceedings. In other words, a person facing a contempt allegation, cannot plead, as a defence, witness immunity. Immunity does not protect against public accountability[18].

PERMISSION 

CPR r 81.3(5) - when is permission needed?

CPR r 81.3(5) provides:

'Permission to make a contempt application is required where the application is made in relation to

(a) interference with the due administration of justice, except in relation to existing High Court or county court proceedings;

(b) an allegation of knowingly making a false statement in any affidavit, affirmation or other document verified by a statement of truth or in a disclosure statement.'

Accordingly, a contempt application based upon 'an allegation of knowingly making a false statement in any affidavit, affirmation or other document verified by a statement of truth or in a disclosure statement' requires Court permission. So far, so straightforward, but r.81.3(5)(b) sits alongside r.81.3(5)(a), which calls for some consideration, because it might be thought there is a potential contradiction in the provisions (as between r.81.3(5)(a) and r.81.3(5)(b)). However, the position is that any contempt application, based upon an contempt allegation(s), which falls within either situation described in the provisions (r.81.3(5)(a) and r.81.3(5)(b)), requires Court permission, to be pursued. As Pepperall J in UK Insurance said, at paragraph 21, after quoting r.81.3(5):

'Permission is undoubtedly required to bring contempt proceedings in relation to the allegations that these defendants made false statements in witness statements and claim notification forms: rule 81.3(5)(b). Permission is not, however, required pursuant to rule 81.3(5)(a) in respect of allegations that they interfered with the due administration of justice in relation to “existing” court proceedings.'

In judging whether or not a contempt allegation falls with r.81.3(5)(b), the Court looks at the substance of the allegation, not its form (the way it is drafted). In other words, clever drafting of the contempt allegation, in order to attempt to avoid it requiring permission, will not be effective, since, as stated, it is the substance of the contempt allegation which is important. Where a contempt allegation is, in substance, an allegation which comes within r.81.3(5)(b), the fact it is drafted so as to come within r.81.3(5)(a) exception (or also come with the r.81.3(5)(a) exception), does not is not material. Pepperall J in UK Insurance said, at paragraph 27:

'Even if the allegations of interference with the due administration of justice are made in relation to existing proceedings within the meaning of rule 81.3(5)(a) as explained by Bacon J, that is not the end of the matter since there is force in the submission that the court should consider the true nature of each allegation and not simply the label given to it by the claimant. Most obviously an allegation that a defendant interfered with the due administration of justice in existing proceedings by him or herself making a false statement in a document verified by a statement of truth should, in my judgment, be regarded as in substance an allegation that falls within rule 81.3(5)(b). The important issue of whether permission is required cannot turn on the skill of the draftsman but must be approached on the basis of the true substance of the allegation.'[19]

There is, therefore, no need, for the purposes of this article, to consider r.81.3(5)(a) further[20]

RULE 81.3(5)(b) PERMISSION - PRINCIPLES 

Ultimate question

The ultimate question is 'whether it is in the public interest for such proceedings to be brought.' (Superbikes, paragraph 16). In order to answer this question, the Court takes into account various factors. 

Moore-Bick LJ in Superbikes identified both: (a) the ultimate question; and (b) some foremost factors, in determining that question; Moore-Bick LJ said, at paragraphs 16 to 18:

'Whenever the court is asked by a private litigant for permission to bring proceedings for contempt based on false statements allegedly made in a witness statement it should remind itself that the proceedings are public in nature and that ultimately the only question is whether it is in the public interest for such proceedings to be brought. However, when answering that question there are many factors that the court will need to consider. Among the foremost are the strength of the evidence tending to show not only that the statement in question was false but that it was known at the time to be false, the circumstances in which it was made, its significance having regard to the nature of the proceedings in which it was made, such evidence as there may be of the maker's state of mind, including his understanding of the likely effect of the statement and the use to which it was actually put in the proceedings. Factors such as these are likely to indicate whether the alleged contempt, if proved, is of sufficient gravity for there to be a public interest in taking proceedings in relation to it. In addition, the court will also wish to have regard to whether the proceedings would be likely to justify the resources that would have to be devoted to them.

In my view the wider public interest would not be served if courts were to exercise the discretion too freely in favour of allowing proceedings of this kind to be pursued by private persons. There is an obvious need to guard carefully against the risk of allowing vindictive litigants to use such proceedings to harass persons against whom they have a grievance, whether justified or not, and although the rules do not prescribe the class of persons who may bring proceedings of this kind, the court will normally wish to be satisfied that the applicant was liable to be directly affected by the making of the statement in question before granting permission to bring proceedings in respect of it. Usually the applicant will be a party to the proceedings in which the statement was made, but I would not exclude the possibility that permission might be granted to someone other than a party if he was, or was liable to be, directly affected by it. In my view there is also a danger of reducing the usefulness of proceedings for contempt if they are pursued where the case is weak or the contempt, if proved, trivial. I would therefore echo the observation of Pumfrey J in the Kabushiki Kaisha Sony Computer case [2004] EWHC 1192 (Ch) at [16] that the court should exercise great caution before giving permission to bring proceedings. In my view it should not do so unless there is a strong case both that the statement in question was untrue and that the maker knew that it was untrue at the time he made it. All other relevant factors, including those to which I have referred, will then have to be taken into account in making the final decision.

Para 28.3 of the Practice Direction supplementing Part 32 directs the applicant to consider whether proceedings for contempt would further the overriding objective and that is a matter which the court itself should plainly have in mind.'

In a similar vein, earlier in Superbikes, Moore-Bick LJ had said:

''As Sir Richard Scott V-C observed in Malgar Ltd v R E Leach (Engineering) Ltd [2000] FSR 393, proceedings for contempt of court are public law proceedings and therefore when considering whether to give permission for proceedings to be taken in any particular case the court must have regard to the public interest alone. Knowingly to give false evidence in a witness statement intended for use in proceedings, particularly proceedings of a kind that are ordinarily determined without oral evidence, will usually involve an attempt to interfere with the course of justice and such proceedings might therefore be regarded as a matter primarily for the public authorities. However, a private individual, usually a party to the proceedings, may well be directly affected by such action...so it is perhaps not surprising that rule 32.14(2)(b) contemplates that proceedings for contempt may in some cases properly be brought by a private person. None the less, because the proceedings are of a public nature “The court from which permission is sought will be concerned to see that the case is one in which the public interest requires the committal proceedings to be brought”: per Sir Richard Scott V-C, at p 396.' (paragraph 9)

'That is why the court will be concerned to satisfy itself that the case is one in which the public interest requires that the committal proceedings be brought and that the applicant is a proper person to bring them.' (paragraph 11)

Later, at paragraph 15, Moore-Bick LJ said:

'...the question for the court on such an application is not whether a contempt of court has in fact been committed but whether proceedings should be brought to establish whether it has or not.'

Timing 

As to when to permit contempt proceedings to be brought, Moore-Bick LJ in Superbikes said, at paragraph 18:

'It is important not to allow satellite litigation of this kind to disrupt the progress of the substantive proceedings and it may not be possible to assess the strength of the complaint until those proceedings have concluded. This danger was well described by David Richards J in Daltel Europe Ltd v Makki [2005] EWHC 749 (Ch) at [80] as follows:

“Allegations that statements of case and witness statements contain deliberately false statements are by no means uncommon and, in a fair number of cases, the allegations are well founded. If parties thought that they could gain an advantage by singling out these statements and making them the subject of a committal application, the usual process of litigation would be seriously disrupted. In general the proper time for determining the truth or falsity of these statements is at trial, when all the relevant issues of fact are before the court and the statements can be considered against the totality of the evidence. Further, the court will then decide all the issues according to the civil standard of proof and will not be applying the criminal standard to isolated issues, as must happen on an application under CPR r 32.14.”

However, Moore-Bick LJ in Superbikes then went on the say, at paragraph 19:

'In some cases, of which this is an example, it may be possible to deal with an application of this kind at a much earlier stage, especially if the alleged contempt relates to a statement made for a limited purpose which has passed and has no continuing relevance to the proceedings.

4 Ingredients

There are 4 ingredients which ought to be present, before rule 81.3(5)(b) Permission is granted. Whether these were formerly merely the 4 foremost factors, and have been elevated to mandatory ingredients, is debateable. In Achille, Pepperall J listed the 4 factors, at paragraph 22:

'Permission should only be granted to make a contempt application where:

22.1 there is a strong prima facie case against the defendant;

22.2 the public interest requires the committal proceedings to be brought;

22.3 the proposed committal proceedings are proportionate; and

22.4 the proposed committal proceedings are in accordance with the overriding objective.

See [Elliott], at [44]; [Berry], at [30].'

Pepperall J was repeating the same list he had identified in his earlier judgment, namely, UK Insurance[22]. Formerly, this list contained 5 Ingredients. The 5th being 'not straying into the merits':

(a) Elliott, paragraph 44[23];

(b) Berry, paragraph 30[24]

Earlier, Pepperall J had referred (paragraph 32) to these ingredients, more pitherly, and perhaps more memorably, as: 

(1) strong prima facie case of contempt;

(2) public interest,

(3) proportionality, and the

(4) proper application of the overriding objective.

Before turning to the 4 ingredients, it can be noted:

(a A factor which is not material, is the spectacle that granting permission might appear to be the court granting permision to 'hit a man when he is down'. Such a situation can arise, where (as if often the case), the party seeking permission will have won in the underlying litigation; and the person against whom permission is sought, will have lost. As to this, Moore-Bick LJ in Superbikes commented:

'Although some may find rather distasteful the prospect of a successful litigant's pursuing proceedings for contempt against a witness who gave evidence against him, that is not a matter that can properly influence the court's decision.' (paragraph 9)

Ingredient 1 - there is a strong prima facie case against the defendant

In Achille, Pepperall J said[25]

'23. In considering the strength of the case, it is necessary to identify what will ultimately need to be proved:

...

23.2 Allegation 9:

a) Contempt in respect of making a false statement requires proof of the falsity of the statement in question; that the statement has or would be likely to have interfered with the course of justice; and that, at the time the statement was made, the maker had no honest belief in its truth and knew of its likelihood to interfere with the administration of justice: AXA Insurance UK plc v. Rossiter [2013] EWHC 3806 (QB), at [9].

b) Lack of an honest belief in the truth of the statement can be established either by proof that the contemnor had actual knowledge that the statement was false or by proof of recklessness in the sense of making the statement without any idea as to whether it is true or false: Berry, at [28]. Optimism or mere carelessness is not, however, sufficient: Berry, at [30].'

Looking at what will need to proved at the final contempt hearing (and so what informs the test of 'strong prime facie case' in Ingredient 1):

(1) In Rossiter, Stewart J, under the heading 'The Relevant Law In Outline', at paragraph 9, identified what will need to proved at the final contempt hearing, as follows:

'It is common ground that for the Claimants to establish each contempt alleged they must prove beyond reasonable doubt in respect of each statement:

(a) The falsity of the statement in question

(b) That the statement has, or if persisted in would be likely to have, interfered with the course of justice in some material respects;

(c) That at the time it was made, the maker of the statement had no honest belief in the truth of the statement and knew of its likelihood to interfere with the course of justice.'

(2) In Matovu, under the heading 'The Law', Freedman J confirmed that Rossiter, paragraph 9, summarised the test to be applied at the final contempt hearing. In addition, Freedman J said, at paragraphs 26 and 27:

'In Liverpool Victoria Insurance Company Ltd v Yavuz & Ors [2017] EWHC 3088 (QB), Warby J, as he then was, concluded at paragraph 16:

"The false statement must have a tendency to interfere with the course of justice in a material way… but I do not think it can be right to say that a person can only be in contempt if they succeed in causing actual interference."

Each ingredient is required to be proven on the criminal standard, that is beyond reasonable doubt. (See JSC BTA Bank v Ablyazov [2012] EWCA Civ 1411).'

(3) In Berry, at paragraph 28, Akenhead J said:

'On balance, I conclude that it can be contempt of court for a witness to make a statement, supported by a statement of truth recklessly, that is, saying something which it can be proved beyond reasonable doubt that he or she consciously has no idea whether it is right or wrong. This is supported by the wording of CPR Part 32.14 and by the Vice Chancellor in Malgar when he said that CPR Part 32.14 did not introduce a new category of contempt; it is not undermined by the Edward Nield case which was not concerned with whether a reckless statement could amount to contempt. Recklessness is a concept which judges can address as they do in a criminal context. Logic also suggests that a person who represents as true something which he or she consciously does not know whether it is true or not is consciously misleading the Court and that should be considered as contemptuous.'

Amount of analysis required of the merits of the contempt allegation 

Where Ingredient 1 is conceded at the r.81.3(5)(b) Permission stage, the Court hearing the r.81.3(5)(b) Permission applicant will not consider it appropriate, or necessary, to analyse the merits of the contempt allegations further. 

Similarly, in UK Insurance, Ingredient 1 had been conceded by each defendant, with the result that Pepperall J said, at paragraph 38 of UK Insurance, simply:

'In this case, each defendant has formally conceded for the purposes of this permission application that there is a strong prima facie case. In those circumstances, it is neither necessary nor appropriate to say anything further about the merits of the applications: KJM Superbikes Ltd v Hinton (Practice Note) [2009] 1 WLR 2406, para 20, Moore-Bick LJ, and Tinkler v Elliott at para 44(viii), Gloster LJ.'

A similar approach was exhibited in Kabushiki[26]. In Superbikes, Moore-Bick LJ said, at paragraph 20:

'A court dealing with an application of this kind must, of course, give reasons for its decision, but I need hardly emphasise that if the judge decides that permission should be granted he should be careful when doing so to avoid prejudicing the outcome of the substantive proceedings. At the stage of the application for permission the court is not concerned with the substance of the complaint; it is concerned only to satisfy itself that, if established, it is one that the public interest requires should be pursued. If, as in the present case, some aspects of the complaint have been admitted, the judge is free to refer to them, but it will usually be wise to refrain from saying more about the merits of the complaint than is necessary.'

In short, the judgment at this preliminary stage (the r.81.3(5)(b) Permission stage), should avoid the risk of unfairly influencing the court that finally determines the contempt application. 

Ingredient 2 - public interest - the public interest requires the committal proceedings to be brought

In UK Insurance, Pepperall J said, at paragraphs 39 to 44:

'39. In Tinkler v Elliott, Gloster LJ gave the following further guidance at para 44(vii):

“In assessing whether the public interest requires that permission be granted, regard should be had to the strength of the evidence tending to show that the statement was false and known at the time to be false, the circumstances in which it came to be made, its significance, the use to which it was actually put and the maker's understanding of the likely effect of the statement bearing in mind that the public interest lies in bringing home to the profession and through the profession to witnesses the dangers of knowingly making false statements …”

40. In Cavendish Square Holdings BV v Makdessi [2013] EWCA Civ 1540, Christopher Clarke LJ gave similar guidance at para 79. He said that whether an application for committal is in the public interest will depend on a number of considerations including the significance of the statement in the context of the case, the clarity of its meaning, the strength of the contention that the respondent knew it to be untrue, the respondent's status, the seriousness of the consequences of it having been made, the length of time over which, and the circumstances in which, it was maintained, and any explanation as to why it was made. While maintaining that the extent to which a false statement had been persisted in was relevant, Christopher Clarke LJ added, at para 73, that an application to commit should not be regarded as inappropriate simply because the respondent recants before trial. As to this, he observed: 

“Any such principle would risk becoming a licence to lie until the penultimate moment. Nor is there any rule that permission to apply to commit should be refused unless the statement in question has affected the outcome of a trial.”

See also, to the same effect, Joanna Smith J in Frain at para 20.

41. Against that, Gloster LJ stressed in Tinkler v Elliott at para 111 the need for judges to “stand back and look at the overall reality of the litigation”. She observed that the matters about which the applicant complained in the contempt proceedings had been canvassed as issues in the substantive proceedings and had led, where appropriate, to adverse consequences. Those matters militated against permission being granted. The same point was made by Whipple J, as she then was, in Newson-Smith v Al Zawawi [2017] EWHC 1876 (QB) at [83], when she observed that the respondent had “paid, literally and heavily, for his misdemeanours”. See also Frain, at para 20(ii) and at para 62, where Joanna Smith J observed:

“I recognise that there is a public interest in discouraging others from making false statements in the course of court proceedings and I have firmly in mind the guidance in Berry Piling (amongst others) … as to the importance of statements of truth. However, assuming for these purposes that her statements, or some of them, were knowingly or recklessly false, Louise has already been challenged about those statements during the trial and it would appear that they have played a significant part in persuading the Judge to dismiss her case and to pronounce for the 2012 Will. For this she has already paid, as Whipple J put it in Newson-Smith ‘literally and heavily’. She was ordered to pay indemnity costs following the trial and it is common ground that she has suffered a significant amount of public and media interest. I do not consider that the public would take the view that she has ‘got away’ with her false statements or that she has not been adequately punished for them. I regard the Claimants’ submission that a refusal of permission would mean that ‘nothing’ has happened to Louise as a consequence of her alleged false statements, such that the administration of justice will be seriously damaged because others will be encouraged to regard the statement of truth as a mere formality, as neither accurate nor realistic.”

42. Factors in also declining to give permission for contempt proceedings against the solicitor in that case included the fact that he had corrected his statement on discovering that it was false, been cross-examined such that the court was not misled, and the judge had made highly uncomfortable and professionally embarrassing findings against him: Frain, at para 87.

43. Summarising the principles in Newson-Smith, Whipple J added, at para 6(c)(iv), that the court must consider any delay in warning the respondents that he or she might have committed contempt.

44. Judges have made clear in a number of cases that considerable caution is required:

44.1 In KJM Superbikes [2009] 1 WLR 2406, Moore-Bick LJ observed, at para 17, that the wider public interest would not be served if courts were to give permission too freely. Such remarks were, however, in the context of what he described as the obvious need to guard carefully against the risk of allowing vindictive litigants to use contempt proceedings to harass those against whom they have a grievance. That is plainly not this case and UK Insurance, as a motor insurer, has a real and proper interest in exposing and punishing those who pursue dishonest accident claims.

44.2 In Cavendish Square [2013] EWCA Civ 1540, Christopher Clarke LJ observed, at para 79, that permission applications should be approached with “considerable caution” and that it is not in the public interest that such applications should become a regular feature in cases where at or shortly before trial it appears that statements of fact in pleadings may have been untrue.'

 

In Achille, Pepperall J, at paragraph 24 to 26, under the heading 'Public Interest', said:

'24. Judges have made clear in a number of cases that considerable caution is required in considering whether committal proceedings are in the public interest:

24.1 In KJM Superbikes Ltd v. Hinton [2008] EWCA Civ 1280, [2009] 1 W.L.R. 2406, Moore-Bick LJ observed, at [17]:

"In my view the wider public interest would not be served if courts were to exercise the discretion too freely in favour of allowing proceedings of this kind to be pursued by private persons. There is an obvious need to guard carefully against the risk of allowing vindictive litigants to use such proceedings to harass persons against whom they have a grievance, whether justified or not, and although the rules do not prescribe the class of persons who may bring proceedings of this kind, the court will normally wish to be satisfied that the applicant was liable to be directly affected by the making of the statement in question before granting permission to bring proceedings in respect of it. Usually the applicant will be a party to the proceedings in which the statement was made, but I would not exclude the possibility that permission might be granted to someone other than a party if he was, or was liable to be, directly affected by it. In my view there is also a danger of reducing the usefulness of proceedings for contempt if they are pursued where the case is weak or the contempt, if proved, trivial. I would therefore echo the observation of Pumfrey J in the Kabushiki Kaisha Sony Computer Case [2004] EWHC 1192(Ch) at [16] that the court should exercise great caution before giving permission to bring proceedings. In my view it should not do so unless there is a strong case both that the statement in question was untrue and that the maker knew that it was untrue at the time he made it. All other relevant factors, including those to which I have referred, will then have to be taken into account in making the final decision."

24.2 In Cavendish Square Holdings BV v. Makdessi [2013] EWCA Civ 1540, Christopher Clarke LJ observed, at [79], that permission applications should be approached with "considerable caution" and that it is not in the public interest that such applications should become a regular feature in cases where at or shortly before trial it appears that statements of fact in pleadings may have been untrue.

25. Mr Achille is right to submit that subjective motive is not relevant in private committal applications for breach of orders or undertakings: Navigator Equities Ltd v. Deripaska [2021] EWCA Civ 1799, [2022] 1 W.L.R. 3656. Indeed, as Carr LJ (as she then was) observed at [123], there will nearly always be a degree of animus between parties to a civil committal application. This is, however, an application for permission to bring public law proceedings (defined by Carr LJ as committal proceedings other than for breach of an order or undertaking) and, in accordance with KJM, the court can and should guard against the risk of vindictive litigants using such public proceedings to harass those against whom they have a grievance.

26. In Stobart, Gloster LJ gave the following guidance in respect of false statement cases at [44(vii)]:

"In assessing whether the public interest requires that permission be granted, regard should be had to the strength of the evidence tending to show that the statement was false and known at the time to be false, the circumstances in which it came to be made, its significance, the use to which it was actually put and the maker's understanding of the likely effect of the statement bearing in mind that the public interest lies in bringing home to the profession and through the profession to witnesses the dangers of knowingly making false statements."'

Proper Person to litigate

A factor in this seems to be whether or not, the r.81.3(5)(b) Permission applicant, is a 'proper person' to litigate the contempt proceedings (Achille, paragraph 55.4)

 

Ingredient 3 -  'the proposed committal proceedings are proportionate' 

In UK Insurance, Pepperall J said, at paragraphs 45 to 50:

'As to proportionality, Gloster LJ added in Tinkler v Elliott [2014] EWCA Civ 564 at [44 (vi)]:

“In assessing proportionality, regard is to be had to the strength of the case against the respondents, the value of the claim in respect of which the allegedly false statement was made, the likely costs that will be incurred by each side in pursuing the contempt proceedings and the amount of court time likely 

to be involved in case managing and then hearing the application but bearing in mind the overriding objective - see Berry Piling, at para 30(d).”

In Berry [2013] BLR 232, Akenhead J observed, at para 37:

“Whilst of course there is a public interest in pursuing people who have deliberately or even recklessly misled the court, that must be weighed in what is at best a marginal case by the proportionality of the exercise; proportionality is measured in a case like this largely by reference to the cost and time likely to be involved.”

Liverpool Victoria Insurance Co Ltd v Khan [2019] 1 WLR 3833 was not a decision as to permission but rather an appeal as to the penalty imposed for proven contempts committed by an expert witness. The Court of Appeal observed, at paras 59–60:

“59. We say at once, however, that the deliberate or reckless making of a false statement in a document verified by a statement of truth will usually be so inherently serious that nothing other than an order for committal to prison will be sufficient. That is so whether the contemnor is a claimant seeking to support a spurious or exaggerated claim, a lay witness seeking to provide evidence in support of such a claim, or an expert witness putting forward an opinion without an honest belief in its truth. In the case of an expert witness, the fact that he or she is acting corruptly and makes the relevant false statement for reward, will make the case even more serious; but it will be a serious contempt of court even if the expert witness acts from an indirect financial motive (such as a desire to obtain more work from a particular solicitor or claims manager), or without any financial motivation at all, and even if the expert witness stands to gain little financial reward by it. This is so because of the reliance placed on expert witnesses by the court, and because of the corresponding importance of the overriding duty which experts owe to the court …

“60. Because this form of contempt of court undermines the administration of justice, it is always serious, even if the falsity of the relevant statement is identified at an early stage and does not in the end affect the outcome of the litigation. The fact that only a comparatively modest sum is claimed in the proceedings in which the false statement is made does not remove the seriousness of the contempt. The sum in issue in the proceedings is however relevant, because contempt of court by an expert witness will be even more serious if the relevant false statement supports a claim for a large sum, or a sum which is grossly exaggerated above the true value of any legitimate claim.”

In South Wales Fire and Rescue Service v Smith [2011] EWHC 1749 (Admin), Moses LJ stressed that the proper administration of justice is seriously damaged by false claims. He observed, at para 5:

“Those who make such false claims if caught should expect to go to prison. There is no other way to underline the gravity of the conduct. There is no other way to deter those who may be tempted to make such claims, and there is no other way to improve the administration of justice.”

Further, in Liverpool Victoria Insurance Co v Bashir [2012] EWHC 895 (Admin), Sir John Thomas P, as he then was, referred to the great difficulty of detecting fraudulent road traffic claims. The judge added that even “foot soldiers” in a conspiracy to make false road traffic claims valued at £5,000 to £15,000 must expect to be committed to prison.

The court must consider the case against and for each defendant and upon each ground separately: Patel v Patel [2017] EWHC 1588 (Ch); Attorney General v Yaxley-Lennon [2020] 3 All ER 477, para 98.'

In Achille, Pepperall J dealt with Ingredient 3 and Ingredient 4 together, under the heading 'Proportionality & the Overriding Objective'. At paragraphs 27 to 29, Pepperall J in Achille said:

'Gloster LJ added in Stobart, at [44(vi)]:

"In assessing proportionality, regard is to be had to the strength of the case against the respondents, the value of the claim in respect of which the allegedly false statement was made, the likely costs that will be incurred by each side in pursuing the contempt proceedings and the amount of court time likely to be involved in case managing and then hearing the application but bearing in mind the overriding objective - see Berry Piling, at [30(d)]."

In Berry, Akenhead J observed at [37]:

"Whilst of course there is a public interest in pursuing people who have deliberately or even recklessly misled the court, that must be weighed in what is at best a marginal case by the proportionality of the exercise; proportionality is measured in a case like this largely by reference to the cost and time likely to be involved."

Delay in bringing contempt proceedings can be a significant factor: Barnes v, Seabrook [2010] EWHC 1849 (Admin), at [47]. Further, the court must consider the case against each defendant and upon each ground separately: Patel v. Patel [2017] EWHC 1588 (Ch); Attorney General v. Yaxley-Lennon [2019] EWHC 1791 (QB), [2020] 3 All E.R. 477, at [98]'

Ingredient 4 - Overriding Objective 

r.81.3(5)(b) Permission will only be granted, if it would be 'in accordance with the overriding objective' (paragraph 53) that there be the intended committal application.

Additional Points 

A few additional points can briefly be made:

(1) Caution - in Kabushiki, Pumfrey J said, at paragraph 16:

'...in the light of the judgment in [Malgar], that the discretion to permit applications of this nature to proceed must be exercised with very great caution.'

(2) Collateral method of placing unjustifiable pressure - in Kabushiki, Pumfrey J said, at paragraph 20:

'...it is important to ensure that proceedings of this description are not used as a collateral method of placing unjustifiable pressure on defendants by wealthy claimants.'

(3) Attorney General - the Attorney General's consent is not needed to commence contempt proceedings.

Furthermore, when faced with a r.81.3(5)(b) Permission application, though a referral could be made to the Attorney General, it is not the 'normal' course for the Court to prefer to make a referral to the Attorney General (instead of granting r.81.3(5)(b) Permission). Moore-Bick LJ in Superbikes said, at paragraph 15:

'...I can see no good reason for saying that the most appropriate course is normally to direct that the matter be referred to the Attorney General.'[28]

and

'The court is free to take whichever course appears most appropriate in the circumstances...'

(4) obligation to give contemporaneous warnings to would-be contemnor at earliest opportunity (without improper pressure) - Moore-Bick LJ in Superbikes, at paragraph 18, said 'Although we did not hear argument on this point, I think that in general a party who considers that a witness may have committed a contempt of this kind should warn him of that fact at the earliest opportunity (as the applicant did in this case) and that a failure to do so is a matter that the court may take into account if and when it is asked to give permission for proceedings to be brought. However, it is important not to impose any improper pressure on a witness who may later be called to give oral evidence. In particular, if the alleged contemnor is to be called as a witness, an application under rule 32.14 should not be made, and if made should not be entertained by the court, until he has finished giving his evidence.'

(see also Barnes (t/a Pool Motors) v Seabrook [2010] EWHC 1849 (Admin); [2010] CP Rep. 42)

(5) already cross-examined on false statement - which itself was an ordeal for the alleged contemnor. A danger was identified, of placing undue weight, or being unduly influenced by the alleged contemnor already having been cross examined, during the underlying proceedings, as to the false statement. 

In Superbikes, the alleged contemnor admitted (post summary judgment hearing) that he'd given false statements in an earlier witness statement used (unsuccessfully) by his employer to seek summary judgment against the contempt applicant. When the underlying matter had reached trial, the alleged contemnor was cross examined, an experience which the 1st instance judge described as 'a “difficult and stressful” time' (paragraph 7). The unpleasant nature of the cross examination had then been one of the factors which lead the 1st instance judge to refuse  to r.81.3(5)(b) Permission. Moore-Bick LJ on appeal, held that this was wrong; the 1st instance judge had been 'unduly influenced...by [the alleged contemnor's] experience in cross examination...' (paragraph 22) - '...that is not a factor that should carry much, if any, weight on an application of this kind'[29] (paragraph 22).

(similarly, the fact the alleged contemnor attend, in person, the trial, was not a factor against granting r.81.3(5)(b) Permission[30])

(6) likely sanction upon conviction - is a factor (as a reflection of the seriousness of the contempt allegation) - which plays a part in assessing the overall public interest in bringing proceedings. 

'However, it is necessary to bear in mind that any penalty ultimately imposed will reflect not only the true nature and seriousness of the contempt that has been committed but also other factors, including factors personal to the contemnor. Those are not matters that the judge hearing the application for permission is well placed to assess...' (Superbikes, paragraph 22)[31]

(7) promote the integrity of the legal process or respect for it in the future - is a factor. The correct impression of how the system views false evidence should be maintained, rather than undermined. Bringing home to potential witnesses/lay clients, the importance of honesty/avoiding the impression being given that statements of truth are a mere formality, can be achieved through: (a) prominent cases, which may, through direct pubicity, convey this message; but also (b) ordinary cases, which may convey this to the legal profession, who may in turn, convey this to their lay clients/witnesses (Superbikes, paragraph 23)[32]

(8) cost of contempt proceedings - is a factor[33];

(9) inability to impose any practical sanction on alleged contemnor - is a modest factor[34].

(10) prison overcrowding 

It is not a factor in determining whether to grant r.81.3(5)(b) Permission, what '...the current pressure in the prison estate...' (UK Insurance, paragraph 51) is. Pepperall J said 'I agree' (UK Insurance, paragraph 53) to the following submission:

'...the court should leave prison conditions out of account when considering an application for permission to bring contempt proceedings.' (UK Insurance, paragraph 53)[35]

It will be a factor at the sanctions stage[37] (assuming a contempt allegation is proved), but that is separate.  

(11) Passage of time since alleged contempt actions/omissions occurred. It is a factor in determining whether to grant r.81.3(5)(b) Permission:

(a) the amount of time that has, simply, passed since the alleged contempt actions/omissions occurred. In UK Insurance, paragraph 54, Pepperall J said he would, when exercising his discretion whether to grant  r.81.3(5)(b) Permission, '...take into account the overall passage of time in this case.';

(b) any unreasonably delay by the claimant. Metroline[38] gives an example of the Court considering the importance of delay in commencing the contempt application

(12) delay in warning the person that they may be committing a contempt. 

Balance in a few cases

On the facts in few cases: (a) Malgar[39]; (b)   

 

Conclusion 

In si

SIMON HILL © 2025*

BARRISTER 

33 BEDFORD ROW  

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