Brabners successful in contempt of court application on behalf of internationally renowned cosmetic surgeon

We have successfully pursued a contempt of court application on behalf of internationally renowned cosmetic surgeon Dr Riccardo Frati.

Dr Frati was successful in his application for the committal of the Defendant (Ms Karen Bowen-Carter) for contempt of court under the provisions of CPR Part 81. The application came after the Dr Frati became aware that Ms Bowen-Carter had breached an undertaking given to the court on four occasions.

Here, our litigation expert Ed Lunt explores the case and its verdict.

Breach of undertaking

The undertaking was given by Ms Bowen-Carter on an interim basis pending the trial of Dr Frati’s claims against her in libel, malicious falsehood and harassment.

Ms Bowen-Carter undertook that she would not:

“(1) Communicate with or contact or attempt to contact the Claimant [Dr Frati] directly or indirectly, other than through his solicitors, whether by telephone, email online or otherwise howsoever.

(2) Contact staff or other patients of the Claimant either directly or online.

(3) Intimidate, harass or pester the Claimant or his patients or staff.”

Dr Frati believed that Ms Bowen-Carter had breached the second undertaking by contacting four of his patients. He submitted that the second undertaking covered both current and former patients and that online messages posted by Ms Bowen-Carter amounted to “contact” with his patients in a clear breach of the undertaking.

Ms Bowen-Carter argued that the reference to “other patients” was unclear and ambiguous and that — on a reasonable interpretation — the second undertaking may refer to individuals currently receiving treatment from Dr Frati and may exclude individuals who have completed their treatment and care.

She sought to argue that a lack of precision in the language made the second part of the undertaking unenforceable or that it was unjust to treat her as contemptuous.

A matter of public interest

In Judgment, Her Honour Judge Farbey referred to the case of Attorney-General v Punch Limited [2002] which suggested that an interim order represents the court’s determination of how it should “hold the ring”, pending trial of the issues. Although Punch relates to injunctions, HHJ Farbey held that there is a public interest in applying the same reasoning to an order requiring a party to comply with undertakings.

When considering the defendant’s submission that the second undertaking was ambiguous and therefore unenforceable, HHJ Farbey referred to the case of Pan Petroleum AJE Ltd v Yinka Folawiyo Petroleum Co Ltd [2017] which determined that — when deciding on the meaning of a court order — its terms are to be restrictively construed. Given the penal consequences of a breach, the terms must be clear, unequivocal and strictly construed before a party will be found to have broken them.

In this instance, when determining the meaning of the second undertaking, the context of the proceedings was relevant to understanding the court’s purpose in granting interim relief. While the words of an Order are to be given their natural and ordinary meaning, they are to be construed in their context and with regard to the object of the Order.

The inherent flexibility of language means that no judicial order will enable the parties to know with complete certainty what acts fall within or outside its prohibitions. As observed by Lord Morris of Borth-y-Gest, in Knuller (Publishing, Printing and Promotions) Ltd v Director of Public Prosecutions [1973], rules of law cannot enable people to regulate their conduct with complete assurance: “[t]hose who skate on thin ice can hardly expect to find a sign which will denote the precise spot where they may fall in”. That is to say, the interests of justice at which a court order strikes should not be undermined or defeated by reference to semantic arguments about the reach of the order, if its purpose is in truth readily discernible from its context.

Clear and enforceable

HHJ Farbey found that — in the context of the underlying proceedings — the undertakings were clear and unambiguous (and therefore enforceable against Ms Bowen-Carter).

In Judgment, she stated:

“The context in which the Order was made is significant. As I have set out above, the written application for an injunction demonstrates that the claimant was seeking relief under the relevant sections of the Protection from Harassment Act. Given that the injunction application was brought under the law of harassment, it is legitimate for the court to consider the context of the harassment claim made against the defendant…

Read and interpreted in the context in which they were given, the terms of the second undertaking are clear and unambiguous. The second undertaking means that the defendant was prohibited by court order from contacting not only present but also former patients. The undertaking is enforceable by way of contempt proceedings. It is not unjust to enforce it. Further and in any event, Patients 1 and 4 were under the claimant's care when the defendant contacted them. Patient 2 was on his database of registered patients. In relation to the defendant's contact with them, the objection that the second undertaking was insufficiently clear is immaterial as the contact would fall within it even on the defendant's narrower interpretation (Cuadrilla Bowland v Persons Unknown [2020]).”

In light of the above considerations, HHJ Farbey was sure that the undertakings were clear and enforceable. She was satisfied that Ms Bowen-Carter had breached the second undertaking and that Dr Frati had proved (to the criminal standard) that Ms Bowen-Carter was in contempt of court on all the occasions that were alleged.

Contempt of court

The Defendant was ordered to pay a fine of £1,200 and an interim payment of £20,000 towards Dr Frati’s costs.

The lesson to be taken is that the Court may not be impressed when a defendant agrees to undertakings but then seeks to avoid compliance through raising semantics as to the precise meaning of the undertakings given.

The contempt proceedings and underlying claim have received significant press attention due to Dr Frati’s high profile, including in The Times and The Telegraph.

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