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The comments by Mr Justice Smith against Sports Direct

Written by Michael Coyle on 22 January 2016

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SDI = Sports Direct 

The Judgement at paras 84-90.

"ABUSE

The above failings on the part of SDI might be said to be technical but committal applications are highly technical. The reason of course is because an application if established can lead to a visitation of periods of imprisonment. It is regularly the case that the court is driven to commit a person to prison for contempt because it is the only way in which the court can demonstrate that interlocutory orders that are made are meant to be obeyed. If the court does not enforce breaches of those interlocutory orders the whole system will be weakened and it is likely that the ability of the court to provide interim protection will be correspondingly weakened.

Against that the procedures for establishing liability are set with a number of clear and well established requirements designed to protect the recipient from oppressive conduct on the part of an applicant.

In Sectorguard Plc v Dienne Plc [2009] EWHC 2693 (Ch) Mr Justice Briggs (as he then was) set out the fact that the CPR introduced a new concept of proportionality and as part of the overriding objective it was an abuse of process to pursue litigation where the value to the litigant of a successful outcome was so small as to make the exercise pointless viewed against the expenditure of court time (see generally paragraphs 44 – 47). As he said in paragraph 47 "committal proceedings are an appropriate way as a last resort of seeking to obtain compliance with the court's order".

I have referred to Mr King's evidence which is unchallenged that Mr Ashley is pursuing a vendetta against him. Further, I questioned what damage was being sustained by SDI even if it established the breaches. I cannot see what disadvantage sustained by reason of the revelation that meetings had taken place and would take place in the future to discuss the continuing relationship when it is clear that it is at least arguable that the existence of that passed meeting and future meeting was in the public domain or was being leaked to the press by SDI.

Equally the evidence has shown no details of the contents that were allegedly disclosed has been identified either in the video or in the Sky Article. Once again this seems to me to be a very slender basis for committal proceedings.

There is then the question of costs. I was presented with schedules of costs for the parties totalling over £300,000. That was not limited to the committal application it is true to say but nevertheless significant amounts of money and court time were being spent on this application. It seems to me that SDI regards the committal application as merely another method of enforcing bargains. I refer in this context to Mr King's very reasonable letter on 4th August 2015 seeking a way forward. Mr Blair's letter was equally pacific. The response of SDI was to issue the present application which had the flaws in it which I have identified above and appears to me to be utterly disproportionate compared with what benefits would ensue.

It is therefore in my view undoubtedly the case that SDI's whole procedure is an abuse and it should be dismissed for that reason in addition to the various failings that I have identified above. That is not to say that Mr King may not be found to have made the disclosures upon which SDI relies when this matter is tried, but even assuming that he did breach the June Order as alleged it is inappropriate to police those breaches with the heavy hand of committal proceedings. These are my reasons for dismissing SDI's committal application."

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