The Court of Appeal recently considered whether an injunction respondent can be guilty of contempt of court for acting contrary to the spirit and purpose of the injunction. It was a nuanced point, since the respondent had not actually carried out an act that was prohibited by the injunction.
The Court held that the injunction respondent could not be guilty of contempt in this way. Asserting otherwise would be an “unprincipled and uncertain” extension to the law, which would bring uncertainty into the enforcement of injunctions. Given that the consequences of breaching an injunction can be serious (including imprisonment), the law of criminal contempt cannot be invoked in order to extend the scope of the injunction beyond its terms.
The decision is interesting because it applies a strict interpretation of injunctions. Applicants must clearly define all the conduct which it seeks to prohibit in the terms of the order.
The spirit and purpose of the injunction
FW Aviation (Holdings) 1 Ltd (FWA), a special situations fund, obtained an interim injunction (the Injunction) against the airline VietJet Aviation Joint Stock Company (VietJet).
The Injunction prohibited VietJet from taking steps to re-register or taking possession of or operating four identified aircraft, or otherwise interfering with FWA’s right to possession, custody and/or control of the specified aircraft.
VietJet subsequently sent a number of letters to public authorities in Vietnam which, Lord Justice Males stated, was “at least on one view…an attempt to interfere with the export of the aircraft from Vietnam”. VietJet’s letters were addressed to Civil Aviation Authority of Vietnam (CAAV), the Vietnamese Customs Authority, the Deputy Prime Minister of Vietnam, the Deputy Transport Minister and the Ministry of Transport. The gist of the correspondence was to challenge the ability of the Vietnamese authorities to issue an Export Certificate of Airworthiness in circumstances where the relevant aircraft had been re-registered in Guernsey.
FWA needed the certificates, and the de-registration from CAAV, so that they could export the aircraft from Vietnam with a view to putting them back on the international aircraft leasing market.
FWA alleged that sending these letters constituted a contempt, saying that it was an attempt to circumvent the Injunction. They alleged that VietJet had intentionally interfered with the administration of justice.
FWA made it clear that they were not asserting that VietJet had breached the terms of the Injunction. Rather, its case was that, by sending the letters, VietJet indirectly undermined the rights conferred on FWA by the orders of the court. In other words, that this was “intentional interference with the administration of justice [which] amount[ed] to a criminal contempt of court”.
In response, VietJet argued, among other things, that it could not be liable for contempt if what it had actually done was not alleged to be a breach of the Injunction. It was emphasised on VietJet’s behalf that contempt carries “serious consequences” and there was therefore a “need for a high standard of procedural fairness”.
Civil v criminal contempt
Contempts of court are classified as being either criminal or civil:
- Criminal contempt is an act which so threatens the administration of justice that it requires punishment from the public point of view
- Civil contempt involves disobedience of a court order or undertaking by a person involved in litigation.
At the first instance hearing, FWA made clear that it did not contend that VietJet had infringed the injunction by sending the letters. On that basis, it could not be guilty of civil contempt. The case against VietJet was confined to an allegation of criminal contempt.
Criminal contempt: More limited than it appears
In some ways, the conduct which may amount to a criminal contempt is open ended. It potentially covers any conduct which intentionally impedes the administration of justice by frustrating the purpose of the injunction.
The purpose of the Injunction was to protect FWA’s entitlement to possession, custody and control of the aircraft. The Injunction prevented VietJet from interfering with that entitlement.
The letters appeared to be a deliberate attempt to prevent the export of the specified aircraft from Vietnam. The act was done with knowledge of the terms of the Injunction.
However, the case law indicates that where the conduct complained of is limited to ‘a subversion of the purpose of the injunction’ without actually breaching its terms, there is no scope for holding an injunction respondent guilty of a criminal contempt.
Comment
Litigants who are subject to freezing orders will breathe easier in the knowledge that there is no room for a broader jurisdiction for contempt of court in circumstances where they have not actually breached the terms of the order, but instead the vaguer notion of its “spirit and purpose”.
However, was an opportunity missed? In the leading judgment Mr Justice Picken said that he “would have thought that an attempt to persuade the authorities in Vietnam to bar the export of the Aircraft might well, at least arguably, constitute an interference with FWA’s control of the Aircraft in breach of the terms of the injunction.”
If that position had been put in argument, then it is possible that there may have been a different conclusion. However, the courts are generally unwilling to extend the law in a way that makes a position more uncertain, which may be the case if a breach of a prohibitory order extends to the breach of its spirit and purpose.
This serves as a reminder for applicants to cover all bases in the drafting of injunctions, and specifically spell out any action that would constitute a breach.
- Read the decision here: FW Aviation (Holdings) 1 Limited v Vietjet Aviation Joint Stock Company [2025] EWCA Civ 1458]
