Contempt of Court - Bargain Busting Ltd v Shenzhen SKE Technology

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Jane Lambert

Chancery Division (HH Judge Paul Matthews) Bargain Busting Ltd v Shenzhen SKE Technology Co Ltd and others [2026] EWHC 933 (Ch) (23 April 2026)

These were applications by Shenzgen SKE Technology Limited ("SST") and their trade mark attorneys to strike out an application by Bargain Busting Ltd. ("BBL") to commit them to prison for contempt of court.  There was also a cross-application from BBL to add another of SST's trade mark attorneys as an additional respondent to the contempt proceedings.

Alleged Contempt

The alleged contempt was "Criminal contempt (intentional interference with the administration of justice) by seeking to prevent or delay the registration of a trademark as directed by the High Court." BBL had applied to register CRYSTAL BAR as a UK trade mark.  SST opposed the application unsuccessfully in the Intellectual Property Office ("IPO") and the High Court.  SST applied to the Court of Appeal for permission to appeal and tried unsuccessfully to persuade the IPO to delay registration of the mark until after the Court of Appeal had disposed of its application.

The Hearing

The application and cross-application came before HH Judge Paul Matthews in the Bristol Civil Justice Centre on 20 March 2026.  By para [54] of his judgment in Bargain Busting Ltd v Shenzhen SKE Technology Company Ltd and others [2026] EWHC which he handed down on 23 April 2026, the learned judge held that the application to commit for contempt could not succeed, and should be struck out.  BBL's cross-application to join one of SST's trade mark attorneys as an additional respondent to the contempt proceedings fell away with the strike out of the contempt application, but he would have dismissed it anyway on the ground that the joinder was neither desirable nor necessary. 

 

Use of Contempt Applications

Before considering the application of the relevant legal principles to the present case, the judge made the following observations in paras [33] and [34] of his judgment:

"[33]  ........... The first point to make is a general one. What has happened in this case is nowadays an increasing problem for the courts. The courts now see even small (alleged) breaches of any orders, not necessarily injunctions, and indeed the conduct of litigation more generally, being threatened with contempt proceedings. In the old days, there would simply have been an application to enforce the original order. As one might expect, and as has happened here, such proceedings being launched are then often followed by applications from the respondents to strike out those proceedings. This slows down the litigation and consumes a lot of time and money. It is trite to say that the contempt jurisdiction is being "weaponised" in a way that it has not been before. Certainly, I do not recall anything of this kind when I first started to practise law in the 1980s. Contempt applications were rare beasts, reserved for serious cases of non-compliance with injunctions or orders for specific performance, or for serious disruption of court hearings and interference with juries.

[34] I appreciate that the contempt jurisdiction may be viewed by some litigators today as just another stick to beat your opponent with: the old adage is transmuted for modern times to All's fair in love and litigation. In some cases, too, it may also be seen as a marketing tool for professionals, whether lawyers or others, to show how strong and fearless they are, and how committed they are to their clients' cases. But in my judgment these are not functions of the contempt jurisdiction at all. Worse, and as I have said, its misuse consumes valuable judicial and legal resources, and costs a great deal of money. And this cannot help but prejudice other litigants seeking to have their disputes settled sooner rather than later. This is an unnecessary burden on society. In my judgment, the contempt jurisdiction should be exercised only where it is properly justified, and the courts should be vigilant to see that its exercise is so confined."

Relevant Law

Judge Paul Matthews noted that the relevant law concerned contempt of court and the striking out of proceedings.

Contempt of Court

He directed himself that there were two kinds of contempt of court: civil and criminal.  He explained the distinction as follows:

" Civil contempt consists in disobedience to an order of the court. It does not of itself constitute a criminal offence. It is concerned with the private interests of the litigants. On the other hand, criminal contempt consists of acts of sufficiently serious interference with the administration of justice rather than mere disobedience to a court order. This is a criminal offence. It is concerned with the public interest."

Criminal Contempt

The learned judge said that the most recent authority on criminal contempt was the Court of Appeal's decision in BHP Group (UK) Limited v Municipio de Mariana [2026] EWCA Civ 294, which had been delivered just 4 days earlier.   Lord Justice Popplewell discussed the law between paras [31] to [49] of his judgment.  He referred to page 309B-D of Lord Diplock's speech in Attorney General v Times Newspapers Limited [1974] AC 273, HL:

"The due administration of justice requires first that all citizens should have unhindered access to the constitutionally established courts of criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities; secondly, that they should be able to rely upon obtaining in the courts the arbitrament of a tribunal which is free from bias against any party and whose decision will be based upon those facts only that have been proved in evidence adduced before it in accordance with the procedure adopted in courts of law; and thirdly that, once the dispute has been submitted to a court of law, they should be able to rely upon there being no usurpation by any other person of the function of that court to decide it according to law. Conduct which is calculated to prejudice any of these three requirements or to undermine the public confidence that they will be observed is contempt of court."

Delivering the lead judgment of the Court of Appeal, Lord Justice Popplewell said at [49] of BHP:

"Drawing the strands together I would state the relevant principles as follows:
(1) A criminal contempt involves an interference with the public interest in the administration of justice. Such interference will typically take one of the three forms identified by Lord Diplock in A-G v Times Newspapers.
(2) Save in cases where the strict liability rule in the common law is preserved by the Contempt of Court Act 1981, or may continue to apply in exceptional cases, which are not here relevant, it may well be necessary to show that the alleged contemnor intended to interfere with the interests of justice (see A-G v Newspaper Publishing Plc, at pp. 374H, 383B-C), although the point is not free from controversy (see Arlidge, Eady & Smith on Contempt 5th edn at 11-23 to 11-35) and since it does not affect the outcome in this case I would not want to be taken to be deciding it.
(3) The conduct need not have the effect of interfering in the administration of justice so long as it gives rise to a sufficient risk that it will do so; it is no answer to a charge of contempt to say that the intended interference has not succeeded: see Attorney General v English [1983] 1 AC 116 at p.141F; Raymond v Honey at p.10; and Attorney General v Crosland at [22]. Witness intimidation is a contempt even if the witness is not in fact deterred from giving evidence. Here, on the Strike Out Application, the IBRAM Claim must be treated as being for the purpose alleged, namely for the purpose of preventing the MCs from pursuing their claims against BHP at all in the TCC proceedings. Had the interim or final relief been granted and complied with, which is what BHP was seeking to achieve, the MCs' claim against BHP in this jurisdiction would have come to an end. That was the intended effect of the conduct alleged to constitute the contempt, of which there was at the lowest a serious risk and substantial possibility.
(4) One type of conduct which falls within the scope of the contempt jurisdiction is the taking of steps to hinder or prevent a litigant from pursuing their claim: A-G v Times Newspapers in the passages cited above; Raymond v Honey at p. 10E. So it is a criminal contempt physically to restrain a litigant from attending court to vindicate their right, to take the example given by Lord Simon in A-G v Times Newspapers at p. 317D. So too it is a contempt to do so by threats, intimidation or bribery or other unlawful means (Smith v Lakeman, Re Mulock, A-G v Times Newspapers). The decision of the Court of Appeal in Attorney General v Hislop [1991] 1 QB 514 affords a modern example of a case in which conduct of defendants intended to deter the claimant from pursuing her claim against them was held to amount to a criminal contempt.
(5) However not all steps aimed at hindering or preventing a claimant from pursuing a claim will amount to a contempt. A defendant or non-party may properly seek to deter a litigant from commencing or pursuing a claim by forms of coercive pressure (A-G v Times Newspapers). Mediation and settlement discussions provide an obvious example of conduct which would not ordinarily amount to contempt, and other aspects of the normal conduct of litigation are given as examples in A-G v Hislop at p. 233G.
(6) The dividing line is not to be drawn by a distinction between conduct which is intrinsically lawful and that which is intrinsically unlawful: R v Kellett and A-G v Martin.
(7) The dividing line is to be drawn by determining whether the conduct is improper even if it would otherwise be lawful. Conduct which is improper and carries a sufficient risk of interference with the administration of justice is a criminal contempt, and can be rendered a contempt by the purpose being improper even if it would be lawful but for that purpose. The test is best stated by use of a single adjective 'improper', shorn of the language of what is fair, reasonable or moderate. Improper is a word which suits a characterisation of the boundary between what is and is not criminalised, and this was one way in which the test was expressed and applied in A-G v Martin. It is the test in s. 21 (1) (b) of the Theft Act 1968 as to when threats are criminal for the purposes of the law of blackmail, where it is not confined to that which is unlawful: see R v Harvey (1981) 72 Cr. App. R. 139. It was the word used to characterise the offending conduct in A-G v Hislop at p. 230B.
(8) Conduct may be undertaken for mixed motives or purposes. The mens rea of intent to interfere with the administration of justice is made out if that is an intent; it need not be the sole intent. So in determining whether the purpose of conduct is such as to render it sufficiently improper to give rise to a criminal contempt, it is sufficient if one of its purposes does so. It is not necessary that the improper purpose be the sole or dominant purpose or motive for undertaking the conduct in question: Attorney General v Butterworth, R v Kellett and A-G v Newspaper Publishing supra."

Judge Paul Matthews added that Lord Justice Popplewell had also said at para [63] of his judgment:

" … the power to grant [anti-suit injunction] relief has never been treated as something which may be invoked by the Attorney-General or any public authority solely on the grounds that the public interest in the administration of justice is sufficient to justify an injunction. The important distinction is that the law of criminal contempt is solely concerned with the public interest; whereas [anti-suit injunction] relief is only ever granted if justified by reference to the private interests of litigants."

The learned judge mentioned Lord Reid's speech in Attorney-General v Times Newspapers at page 294D:

"that the law of criminal contempt is limited to what is reasonably necessary for the purpose of protecting the public interest in the administration of justice; and that in assessing such necessity, public policy generally requires a balancing of interests which may conflict."

Finally, the judge referred to the Court of Appeal's decision in ADM International SARL v Grain House International SA [2024] 1 WLR 3262.  The Court considered circumstances in which conduct which in law amounted to a contempt should not be punished as such or even held not to be such because it would be an abuse of process. Delivering the lead judgment, Lord Justice Popplewell said:

"[81]. It is because a defendant will be in contempt if he fails to comply with an ambiguous court order that an ambiguous order puts him ' at risk of being in contempt.'
[82] However, subjective understanding is relevant to the sentence to be imposed for any contempt. Where a defendant acts in accordance with an erroneous understanding of the order, that is less culpable than a deliberate breach. And where the understanding is a reasonable one because it is one of two reasonable constructions of an ambiguous order, the usual position is that he should not be punished for contempt, to use the language of Mummery LJ in [Federal Bank of the Middle East v] Hadkinson [[2000] 1 WLR 1695].
[83] That may also mean that in an appropriate case he should not be held to be in contempt. That is not because his breach does not amount to a contempt, but by application of the abuse jurisdiction referred to by Briggs J in Sectorguard [Plc v Dienne Plc [2009] EWHC 2693 (Ch)]. When Jenkins J said in Redwing v Redwing Forest Products Ltd [1947] RPC 67 that a defendant in that position 'should not be held to be in contempt' he is to be taken to mean that where the claimant has no prospect of making a court sure that the defendant acted otherwise than in accordance with a subjective interpretation of the order which is a reasonable one in the face of an ambiguity, it will usually be an abuse to pursue the allegation of contempt, notwithstanding that the contempt exists upon what the claimant contends is the true construction of the order."

Power to Strike Out

The judge's starting point was CPR 3.4 (2) (a):

"(2) The court may strike out a statement of case if it appears to the court –
(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim … "

He referred to para [25] of Lord Justice Popplewell's judgment in BHP:

"The Judge [below] set out the principles by which a CPR 3.4 (2) (a) application falls to be determined at Judgment [41], noting that the facts pleaded in the application must be assumed to be true, and that it might be inappropriate to strike out a claim which raises complex and novel issues of law which are best determined in the light of findings of fact at trial."

Judge Paul Matthews discussed TBD (Owen Holland) Limited v Simons [2020] WLR(D) 508, [2021] 1 WLR 992, [2021] 4 All ER 889, [2021] RPC 1, [2020] EWCA Civ 1182, in which the Court of Appeal considered the possibility that a court might bring contempt proceedings to an end on its own initiative.  At first instance, Mr Justice Marcus Smith held that it could inter alia for several reasons including the following one: 

"I discern a regrettable over-enthusiasm in the Company's pursuit of committal proceedings against Mr O'Boyle, which is evidenced both by the aggressive nature in which such proceedings have been threatened, the fact that the "letter before action" has been sent, not merely to Mr Boyle, but to third-parties, and the fact that it was attempted to gain permission to bring committal proceedings whilst the Proceedings (which involve Mr O'Boyle and traverse the same subject-matter) were on-going."

In the Court of Appeal, Lord Justice Arnold said at para [244] of TBD:

"I consider that Marcus Smith J had the power to raise the matter of his own motion pursuant to CPR rule 3.1 and by analogy with Practice Direction 81 paragraph 16.1 (which provides that the court may strike out a committal application on its own initiative in certain circumstances), provided he did so without evincing an appearance of bias and without procedural unfairness to TBD."

Lord Justice Arnold also endorsed the following observations of Mr Justice Andrew Baker in Navigator Equities Ltd v Deripaska [2020] EWHC 1798 (Comm):

"[141] Contempt proceedings have a particular and distinctive character. They are civil proceedings but bear several important hallmarks of criminal proceedings … The hearing is not to be equated with a criminal trial and the process is not to be equated with a private prosecution … But the quasi-criminal character of this particular species of civil litigation process has important consequences.
[142] One consequence I have already identified, namely that the court recognises the particular capacity of contempt applications or the threat of contempt applications to be used vexatiously by litigants to further interests that it is not the function of the contempt jurisdiction to serve. That leads to the obvious materiality, at all events if there is some reason to question it on the facts of a given case, of the 'prosecutorial motive' of a claimant/applicant pursuing a contempt charge. …
[143] A further consequence is that the claimant/applicant pursues a contempt charge as much as a quasi-prosecutor serving the public interest as it does as private litigant pursuing its own interests in the underlying dispute. The claimant/applicant needs to understand that; and if it is legally represented, as here, the legal representatives need to understand that their role as officers of the court is acutely pertinent, even if (to repeat) the process is not to be equated with a private prosecution in a criminal court …'."

Public Interest

BBL had submitted that there was no requirement for a person who brings a contempt application as of right to demonstrate some wider public interest.  Judge Paul Matthews disagreed:

"In my judgment, BBL is wrong to say that there is no requirement in the present case to demonstrate a wider public interest. On the contrary, that is exactly what must be shown. BBL seeks to invoke the criminal contempt jurisdiction, which is concerned, as both Lord Reid (in Times Newspapers) and Popplewell LJ (in BHP) said, with the public interest, and not with the private interests of the litigant."

The learned judge surmised that the words "as of right" in BBL's submission referred to CPR81.3 (5) (a) which exempts the need for permission to make a contempt application where it relates to interference with the due administration of justice in existing High Court proceedings.  

He continued:
"The fact that the procedural rules as they stand provide that no permission is needed in this particular case, because there are existing High Court proceedings, does not change matters. The relevant watershed lies between public interest and private interest, and not between permission and no permission."

He concluded:
"In my judgment, for the reasons which follow, BBL cannot show any sufficient public interest in prosecuting these allegations of criminal contempt."

SST's Trade Mark Attorneys' Messages to the  IPO

The judge considered the alleged contempt which I mentioned above. He did not agree that writing to the court and seeking to delay the registration was an interference with the enforcement of a High Court order.  As he said at para [39]:

"The appeal to the High Court, and the order which the High Court makes, are not directed to the IPO, which is not a party to the dispute. Instead, the IPO follows its own registration procedures. The enforcement of the order is not in the hands of the parties, and they cannot (in any meaningful sense) interfere with that enforcement. The parties have no power to tell the IPO what to do."

He acknowledged that parties could make suggestions.  However, asking the IPO to delay registration until after the appeal process had been exhausted was consistent with its practice. 

He analysed the messages to the IPO from SST's trade mark attorneys. Most were requests but there was one that could be regarded as a statement. At most, it amounted to an observation that the appeal process had not yet ended. In His Honour's view, the words assumed to be false could not possibly have "interfered" with the administration of justice. The IPO alone had the power to decide to register. It knew exactly what the legal position was. It acted in accordance with its own internal guidance.

There was nothing improper in a person interested in the registration of a trade mark submitting that the registration should not take place yet. That person is not denying that the law exists or is ultimately applicable, only that there is a good reason for not yet applying it. Litigants and lawyers are entitled to argue as to what the law is. Losing that argument should not put him or her in contempt of court. His Honour remarked that it would be a dark day for civil liberty if that were the law.

Mens Rea
Finally, there was no evidence that SST or its attorneys appreciated, or were reckless as to whether, their emails would put the administration of justice at risk.

Conclusion

For all the above reasons, the applications to commit for criminal contempt failed.

Joinder

As the contempt application had failed, Judge Paul Matthews did not have to consider BBL's cross-application to join a senior attorney to the proceedings.  

In case his decision on the strike-out applications turned out to be wrong, he referred to CPR19.2:

"(1) This rule applies where a party is to be added or substituted except where the case falls within rule 19.6 (special provisions about changing parties after the end of a relevant limitation period).
(2) The court may order a person to be added as a new party if –
(a) it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or
(b) there is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings, and it is desirable to add the new party so that the court can resolve that issue.
(3) The court may order any person to cease to be a party if it is not desirable for that person to be a party to the proceedings.
(4) The court may order a new party to be substituted for an existing one if –
(a) the existing party's interest or liability has passed to the new party;
(b) it is desirable to substitute the new party so that the court can resolve the matters in dispute in the proceedings."

The judge would have dismissed the cross-application.   Joining the attorney was neither necessary nor desirable. It was unnecessary because SST, their attorneys and the writers of the emails were already party to the proceedings.  Adding another attorney would not have taken the matter any further. Instead, it would simply use up resources. It was undesirable because it would have diluted the allegation without adding to its proof or benefiting the process in any other way. 

Comment

This judgment contains a very thorough discussion on the law of contempt.  It explains the difference between civil and criminal contempt and considers the elements of each.  The judgment also addresses the circumstances in which the court can strike out an application of its own motion.  Anyone wishing to discuss this article may call me on 020 7404 5252 during office hours or send me a message through my contact page.