CONTENTS OF WITNESS STATEMENTS AND DOCUMENTS IN EMPLOYMENT TRIBUNAL GIVE RISE TO A PRIMA FACIE CASE OF CONTEMPT OF COURT

In Commerzbank Ag v Ajao [2024] EWHC 3168 (KB) Ms Justice Eady gave permission to bring committal proceedings on the basis of evidence that had been used before the Employment Tribunal.  The case is a reminder that making witness statements, in any context, is a serious business and can lead to committal proceedings. (It is important to remember that, at this stage, the court was simply giving permission. No findings have been made in relation to the allegations made).

“… there is a legitimate public interest in drawing attention to the dangers of making false statements: if the courts are seen to treat serious examples of false evidence as of little importance, they run the risk of encouraging witnesses to regard the statement of truth as a mere formality”

Avoiding pitfalls with witness statements – how to draft an effective witness statement: webinar 26th February 2025: booking details available here

This case shows that witness statements are serious documents and could lead to the makers being subject to contempt of court proceedings.

Judges regularly complain that witness statements are inadequate and do not contain sufficient information, alternatively that they contain much information that is irrelevant and the witness is unable to give.

This webinar looks at:

• The mandatory requirements for witness statements and the consequences of non-compliance
• Protecting the witness from the lawyer
• Protecting the lawyer from the witness
• Witness statements and proportionality
• Where lawyers go badly wrong with witness evidence
• Explaining the significance of the statement of truth.
• A checklist for taking a statement

THE CASE

The defendant in this action (Mr Ajao) brought two employment claims against the defendant.   In the employment cases there were claims, among other things, of sexual harassment, racial harassment, bullying and breach of contract.   Some of the claims were dismissed or struck out at an early stage. After a seven day hearing the Employment Tribunal dismissed all of the claims. The tribunal revoked an earlier anonymity order and ordered that Mr Ajao pay £20,000 in costs.

THE CURRENT APPLICATION FOR PERMISSION TO BRING COMMITTAL PROCEEDINGS

The tribunal made findings that were adverse to Mr Ajao. It found

” Sexual harassment by Q …

45 We are satisfied that the Claimant’s case under this head is simply false. We accept the evidence of Q …

46 We greatly regret to say that in our judgment the balance of the Claimant’s case on sexual harassment, which included an exceedingly serious allegation of sexual assault, is, in its entirety, pure invention. The acts and events on which he relies did not happen. There was no treatment of him by Q which could conceivably have been seen as amounting to harassment of any kind.

In its subsequent costs decision, the ET further observed:

“3. . … Numerous claims had no factual basis whatsoever… The most serious inventions were directed at … ‘Q’, whom he accused of sexual harassment including sexual assault. He had no possible ground to make any complaint against her, let alone allegations of such gravity. …”

THE CURRENT APPLICATION FOR PERMISSION TO BRING COMMITTAL PROCEEDINGS

The claimant (who had been the respondent in the Employment Tribunal proceedings) sought permission to bring committal proceedings against Mr Ajao,

1. 1. In the application notice, the grounds for the committal proceedings are stated as follows:

“4. … [The defendant’s] claims alleging sexual harassment were known by him to be and were found by the ET to be simply false and pure invention. His allegations of sexual harassment alleged against the Sixth Respondent were false, were known by him to be false and were found to be so by the ET. His claims of alleged discrimination and harassment by the Sixth Respondent were false, were known by him to be false and were found to be so by the ET.

5. [The defendant] knowingly lied in the evidence he gave to the ET. Furthermore, he sought to bolster his bogus claim, by the fabrication of events.

6. This included the manufacture by him of a “work diary” purporting to contain a contemporary record of some of his allegations. He repeatedly put forward assertions which were completely untrue and which he knew to be completely untrue. He advanced numerous claims which he knew had no factual basis whatsoever, the alleged events on which they were premised never happened.

7. He was prepared to lie and he did lie in making wholly baseless allegations of sexual harassment, including a sexual assault, allegations of great seriousness against the Sixth Respondent. The fact of and nature of these false allegations caused the Sixth Respondent to develop a serious psychiatric illness.

8. He was contemptuous of the duty to tell the truth.

9. In acting as aforesaid, [the defendant] has knowingly made false statements of truth and/or has interfered with the due administration of justice by giving evidence which he knew was false, which he knew would be likely to interfere with the due administration of justice and which had the clear and obvious potential to do so.”

The detailed particulars of the matters relied on are then set out in the affidavit of Mr Cameron.

THE EVIDENCE CONSIDERED

It was common ground that, in the committal proceedings themselves, the claimant could not rely on the factual findings of the Employment Tribunal. The Tribunal made findings of fact based on the civil standard.  However the court could look at those findings on the question of whether permission to bring the committal proceedings should be granted.

THE JUDGE’S APPROACH TO THE APPLICATION

1. 1. The claimant seeks to bring proceedings for contempt of court in respect of conduct said to amount to interference with the due administration of proceedings before the ET, and in knowingly making a false statement in a witness statement verified by a statement of truth. There is no dispute that a contempt of court can arise in respect of ET proceedings (Peach Grey and Co v Sommers [1995] ICR 549), although it is equally common ground that permission to make a contempt application is required in these circumstances (CPR 81.3), and must be considered separately in respect of each ground of committal.

1. 1. As for what is required in any application for committal, the nature of such proceedings requires particular attention to be given to the protection of the rights of the alleged contemnor (see the observations of Vos LJ at paragraphs 73-75 Re L (A Child) [2016] EWCA Civ 173); the test is whether “such a person, having regard to the background against which the committal application is launched, be in any doubt as to the substance of the breaches alleged?” (per Re L, and see per Cockerill J at paragraph 77 Deutsche Bank AG v Sebastian Holdings Inc and anor [2020] EWHC 3536 (Comm)). In essence, the procedural rules laid down by CPR 81 set out what is required to comply with this test; thus, by CPR 81.4 it is required (relevantly) that the application must be supported by written evidence given by affidavit or affirmation, and must include a statement of the nature of the alleged contempt (here: interference with the due administration of proceedings and knowingly making a false statement in a witness statement verified by a statement of truth), and a brief summary of the facts alleged to constitute the contempt. While it is not sufficient for the application notice to merely refer to the accompanying evidence (see the observations of Nicklin J at paragraphs 24-34 QRT v JBE [2022] EWHC 2902 (KB)), it need only set out a succinct summary of the claimant’s case, to be read in the light of the background known to the parties, with the detail being set out in the evidence; see Deutsche Bank at paragraph 80, as endorsed by the Court of Appeal at paragraph 89 Ocado Group plc v McKeeve [2021] EWCA Civ 145.

1. 1. Moreover, as the case-law makes clear, the discretion to grant permission should be exercised with considerable caution, and requires that there must be a strong prima facie case shown by the claimant, albeit that I should be careful at this stage not to stray into the merits of that case: the question for the court 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; in this regard, there must be shown to be a public interest in the committal proceedings being brought; and I must be satisfied that the proceedings would be proportionate and in accordance with the overriding interest (see Kirk v Walton [2008] EWHC 1780 (QB) per Cox J at paragraph 29; KJM Superbikes Ltd v Hinton [2008] EWCA Civ 1280 at paragraphs 16-17; Cavendish Square Holdings BV v Makdessi [2013] EWCA Civ 1540 at paragraph 79; and Patel v Patel [2017] EWHC 1588 (Ch) per Marcus Smith J at paragraphs 29-30 and 31).

1. 1. In considering these questions, I accept that the wider public interest requires that the court must guard carefully against the risk of allowing litigants to use committal proceedings to harass those against whom they have a grievance, or simply to re-litigate matters that have been determined elsewhere: I must exercise great caution before giving permission, and should not do so unless there is a strong prima facie case. I also recognise, however, that there is a legitimate public interest in drawing attention to the dangers of making false statements: if the courts are seen to treat serious examples of false evidence as of little importance, they run the risk of encouraging witnesses to regard the statement of truth as a mere formality (see KJM Superbikes at paragraphs 17 and 24). As Marcus Smith J observed in Patel v Patel:

“25. … As is self-evident, and as cases make clear, evidence given to a court, whether it be in a pleading supported by a statement of truth, by witness statement, affidavit, or in oral testimony, this evidence should be true. Such evidence absolutely should not be deliberately false. There is an obvious and clear public interest in holding to account those who deliberately tell lies in court and during the course of the litigation process.”

1. In determining which side of the line a particular case falls, it will always be necessary to consider matters in context. Thus I will need to consider: (i) the strength of the evidence tending to show not only that the statement was false but that it was known at the time to be false; (ii) the circumstances in which the statement was made and its significance in the context of the case; (iii) any evidence as to the maker’s state of mind, including his understanding of the likely effect of the statement; (iv) the use to which the statement was put in the proceedings and the length of time over which, and the circumstances in which, it was maintained (regardless of whether the court or tribunal in question would have reached the same decision even if that statement had not been adduced or maintained; see Coghlan v Bailey [2017] EWHC 570 (QB)); KJM Superbikes at paragraph 16; Cavendish Square at paragraph 79. In addition, I must consider whether the proceedings would be likely to justify the resources devoted to them and whether they will further the overriding objective of the CPR, that is: to deal with the case justly and at proportionate cost, having regard to the factors set out at CPR 1.1(2).

THE JUDGE’S DECISION IN THIS CASE

The judge gave permission to bring committal proceedings on some, but not all, of the allegations initially put forward.

1. 1. Addressing first the complaints made regarding the notice of application, I am satisfied that this is not a case where the defendant can legitimately complain of the particularisation of the case against him. Allowing for the potential disadvantage arising from the fact that those who now act for him were not involved in the ET proceedings, the defendant does not come to this matter as a stranger: he is fully aware of the claims he pursued before the ET, and knows the detail and significance of the evidence he gave, and of the findings that the ET made. Against this background, I do not consider that the defendant can be in any doubt as to the substance of the contempt alleged.

1. 1. Moreover, the nature of the contempt (interference with the due administration of proceedings and knowingly making a false statement in a witness statement verified by a statement of truth) is clearly stated within the application notice, along with a brief summary of the facts relied on: that the defendant knowingly made false allegations of sexual harassment and discrimination against Q; that he knowingly lied in the evidence he gave to the ET and sought to bolster his claim by fabricating events, including by the manufacture of a work diary; that he repeatedly put forward assertions that were completely untrue, and advanced numerous claims which he knew had no factual basis as the alleged events on which they were premised never happened; that he was prepared to lie, and did lie, in making baseless allegations of sexual harassment, including an allegation of sexual assault against Q.

1. 1. The detail of the matters relied on is then set out within the affidavit evidence of Mr Cameron. While I accept that aspects of the particulars provided are repetitious, that seems to me to arise from an overabundance of caution on the part of the claimant: separating out points relating to individual meetings (for example), notwithstanding that the allegation made by the defendant as to what was said was essentially the same.

1. 1. The fact that the application is adequately particularised does not, however, mean, that it should be allowed. Proceeding with great caution, I first need to be satisfied that the claimant has established a strong prima facie case. In this regard, I must reach my conclusion without straying into the merits: at this stage, the question I have to answer is not whether the defendant has in fact committed any contempt, but whether the case brought by the claimant, on each ground, is sufficiently strong such that proceedings should be brought to establish whether a contempt has been committed.

1. 1. In respect of the statements made by the defendant – in his pleaded case, his witness statement, and in his oral evidence – whereby he made allegations of sexual harassment and an attempted sexual assault against Q (points 2-6 of the claimant’s schedule), I am clear that a strong prima facie case has been established. This further extends to the defendant’s evidence as to why he had not made a contemporaneous complaint about Q’s conduct and had otherwise continued friendly relations with her (points 24-26). I am not making any finding as to the merits in this regard (I recognise, for example, that, as Ms Horlick emphasised, different people may respond to sexual harassment or to a sexual assault in very different ways), but I consider the fact of the ET’s findings on these matters to be sufficient to demonstrate the strong prima facie case required.

1. 1. Equally, I am clear that a strong prima facie case has been shown in respect of the charge concerning the entries in the work diary (points 29-30). I again reach this conclusion without descending into the merits; although Ms Horlick sought to emphasise the possible expert evidence that might be adduced in this regard, it would be wrong for me to speculate in this respect. In my judgement it is sufficient at this stage that the ET, aware of the significance of the work diary entries relied on and having heard the defendant’s evidence on the point, formed the conclusion that it was more likely than not that the relevant parts of the work diary had been “manufactured“.

1. 1. I reach a similar view in respect of the ET findings as to the defendant’s explanation in relation to covert recordings he had made (or said he had made) of various meetings or conversations (point 23). The conclusions reached in this regard arise from the defendant’s testimony before the ET, which was found to be “false and entirely tactical”. Without descending into the merits of this issue, I am satisfied at this stage that the ET’s findings demonstrate a strong prima facie case of contempt in this regard.

1. 1. I also consider a strong prima facie case of a contempt arising from the defendant’s evidence is established by the ET’s findings: (i) in respect of the email alleged to have been sent to Mr Booth at 17:10 on 20 November 2019 (point 20), and (ii) in relation to the emails allegedly sent to Messrs Booth and Vogelman before the dismissal meeting on 21 November 2019 (point 22). Acknowledging that the ET was applying a civil burden of proof, it made clear findings on the evidence that the defendant was not telling the truth in relation to these emails (which were of some significance to the defendant’s case of victimisation); I am satisfied that this is sufficient to meet the required standard at this stage.

1. 1. Turning then to the separate allegations of harassment related to sex that the defendant made (in his further particulars, and then in his witness statement and oral evidence) against Ms Ogunfowora (points 10, 11 and 31), I consider that a strong prima facie case of contempt is made out. In reaching this view, I acknowledge that the ET did not hear directly from Ms Ogunfowora; it did, however, hear evidence in relation to the incidents in question from both the defendant and Ms Mehta (who was present on both occasions); doing so, the ET found it more probable than not that the defendant’s allegations against Ms Ogunfowora were false and that he had made a “tactical adjustment” in advancing this case. Without straying into the merits, I am satisfied that a strong prima facie case of contempt has been established in this respect.

1. 1. Having set out the matters on which I have found a strong prima facie case to have been established, I turn to the other side of the balance, to explain why I have not been satisfied to that standard in other respects.

1. 1. In relation to the ET’s finding on the question whether it had been agreed that three days of annual leave should be taken as sick leave (point 15), I am not persuaded that this is sufficient to demonstrate a strong prima facie case that the defendant knowingly made a false statement. Accepting that the ET found that the defendant’s evidence in this regard was “false“, the decision does not provide me with sufficient detail to be satisfied that a strong prima facie case has been established that the defendant knowingly gave false evidence.

1. 1. As for the claim of race discrimination initially made against Mr Kowalik, but withdrawn before the full merits hearing, I am not persuaded that I can reach any conclusion as to the defendant’s likely state of mind in this regard, and as to whether his apparent willingness to withdraw a particular allegation demonstrates a prima facie case of contempt. Similarly, given that no adjudication has ever been made on the defendant’s schedule of loss (and updated schedule), other than providing potentially relevant context for other aspects of the case, I cannot see that there would be a proper basis on which I could conclude that this would establish a prima facie case of contempt.

1. 1. I am also not persuaded that a strong prima facie case of contempt has been established in relation to the defendant’s various allegations that he raised oral complaints in meetings or conversations with Ms Mehta relating to Ms Ogunfowora’s conduct or about her reviewing his work (points 7-9, 13-14, 17 and 27), or about Mr Kowalik (points 12 and 27). Accepting that the ET rejected the defendant’s evidence as to particular meetings (finding that they had never taken place), and found that he was wrong to assert that he had raised formal grievances, or that Ms Mehta had actually promised that Ms Ogunfowora would not review his work, I am not persuaded that the reasoning set out within the ET’s decisions provides sufficient basis for me to be satisfied that a strong prima facie case is made out that the defendant knowingly gave false evidence in these respects. As Ms Horlick has observed, whether the raising of concerns amounts to a formal grievance may be a matter of nuance and interpretation; similarly, an agreement to try to pass work to a different reviewer may wrongly be perceived as a promise, and an erroneous assumption (even if informed by self-interest) need not equate to a dishonest falsehood. These are not matters on which I consider the claimant has been able to demonstrate the required standard.

1. 1. I take the same view in respect of the various allegations relating to meetings and conversations the claimant said he had had with Messrs Booth and Vogelman, at which he contended he had identified issues (at times raised as formal grievances) in relation to Q, Ms Ogunfowora, and/or Mr Kowalik (points 16, 18, 19, 21, and 28). I acknowledge the clear findings made by the ET, to the effect that particular meetings never took place, and that the concerns alleged were never raised, but I consider these are more nuanced points that, on the material before me, do not meet the required standard to form the basis of committal proceedings.

1. 1. Finally, on the allegation relating to whether Mr Vogelman had expressed a preference for more German or European team members in the London office (point 1), it seems to me that the application in this respect relies more on what was put to Mr Vogelman in cross-examination than on any particular finding by the ET. I am not persuaded that this provides a sufficient basis to establish the requisite strong prima facie case.

1. 1. Having carried out an assessment of the bases on which the case for committal is put, I turn to the further matters of which I must be satisfied before I can allow these proceedings to be brought. In this case, it seems to me that the questions whether such proceedings are in the public interest, whether they are proportionate, and whether they would accord with the overriding objective, are interwoven. Accepting (as I do) that there is a strong public interest in demonstrating the dangers of making false statements in court and tribunal proceedings, I also acknowledge the wider concerns as to the need for the court’s resources to be allocated in a proportionate way. Moreover, I am conscious of the need to ensure that the defendant is fairly able to address the charges made against him, ensuring that the parties are on an equal footing and can participate fully in the proceedings and that they, and their witnesses, can give their best evidence.

1. 1. Having regard to these matters, I am satisfied that, even if I was wrong in my assessment of the strength of the case demonstrated in respect of points 1, 7-9, 12-19, 21, 27 and 28 (and the additional points identified in respect of the (withdrawn) claim against Mr Kowalik and the schedule of loss), these are not grounds that would satisfy the requirements of public interest, or proportionality, or that would advance the overriding objective. I do not, for example, consider it would be in the public interest to require the court to effectively oversee the litigation of a claim that had previously been withdrawn. As for the various meetings and conversations at which concerns or grievances were alleged to have been raised, these are matters that have been litigated before a specialist tribunal; it would simply not be proportionate to re-open these points for the purpose of committal proceedings. Similarly, I do not consider it would be proportionate to permit the claimant to pursue a case for committal in respect of the question whether the defendant knowingly made a false statement in saying it had been agreed that he was to take three days of annual leave as sick leave, or in relation to how an allegation was put in cross-examination in respect of a one-off comment.

1. 1. As for the matters on which I have found a prima facie case to have been demonstrated to the required standard, I do not consider it would be proportionate, or in accordance with the overriding objective, to permit committal proceedings to be pursued in respect of the ET’s findings relating to the defendant’s explanation about covert recordings of meetings (point 23). The case in this regard would be likely to require some form of agreed record of what precisely the defendant had said in evidence, but that gives rise to the difficulty that the ET hearing will not have been recorded and it would be difficult, at this stage, to obtain the Employment Judge’s notes. Although I do not consider that such difficulties are necessarily fatal to committal proceedings, in this instance I am satisfied that this would be a disproportionate exercise and would be counter to the overriding objective.

1. 1. I have reached a similar conclusion in respect of the allegations relating to emails said to have been sent on 20 and 21 November 2019 (points 20 and 22). Accepting that a strong prima facie case has been demonstrated that the defendant was dishonest in his account before the ET in this regard, I am not persuaded that it would be proportionate for these allegations to be the subject of trial in proceedings for committal, not least given the likely forensic exercise that would be required to investigate these matters at such a hearing.

1. 1. I take a different view, however, in relation to the charge relating to the falsification of entries in the defendant’s work diary (points 29-30). Accepting, as Ms Horlick submitted, that this is a matter that might require expert analysis and evidence (albeit that this would be highly focused, given that the disputed entries are limited), I am satisfied that there is a strong public interest in determining whether the defendant did indeed commit a contempt of court in manufacturing evidence in this regard and that it would be proportionate, and in accordance with the overriding objective, to allow this matter to proceed.

1. 1. I am also clear that there is a strong public interest in permitting the application in respect of the allegations of sexual harassment and attempted sexual assault made against Q (points 2-6). Although the related points – arising from the defendant’s explanation for why he had not made a contemporaneous complaint but had maintained friendly relations with Q (points 24-26) – are less clear-cut in this regard, I see these as all part of the evidential matrix that will need to be considered on points 2-6; as such it is both in the public interest and proportionate to permit all these points to proceed. In so ruling, I take account of the points made by Ms Horlick as to the potential difficulties facing witnesses giving evidence about these events after so many years, and as to how this might impact on Q and/or the defendant if they are suffering health issues (as is alleged). Recognising such possible difficulties, I also bear in mind the serious nature of allegations of discrimination of this form; just as it is right to recognise the need for such complaints to be the subject of public adjudication, it is also important that an allegation of making a false complaint of this nature is similarly the subject of public judicial determination. Balancing the different interests in this regard, I am satisfied that it is in accordance with the overriding objective, and is both proportionate and in the public interest for these matters to proceed.

1. 1. I take the same view in respect of the allegations of harassment that were made against Ms Ogunfowora (points 10, 11, and 31). Although I understand that these were pursued as allegations of harassment related to sex, I can appreciate the serious nature of the case pursued by the defendant, given that he was saying that, as a black man, he had been referred to as “boy”. If that was in fact an entirely false allegation, made purely to counter a valid complaint that the defendant had referred to a female colleague as a “girl” – and I have found that the ET’s decision demonstrates a strong prima facie case in this regard – then I consider there would be a strong public interest in permitting the current proceedings to be pursued on these points. Accepting that these points relate to events in 2019, it seems to me that the very specific nature of the allegation should mean that this is not something that will have been entirely forgotten. Moreover, the limited nature of the evidence relevant to these points (the three individuals present on the two occasions in question would seem to be the defendant, Ms Ogunfowora and Ms Mehta) gives me further reassurance as to the proportionality of permitting this to proceed.

1. 1. I therefore permit the claimant’s application in relation to points 2-6, 10-11, 24-26, 29-30 and 31 identified in the schedule. As previously agreed, the parties are now directed to seek to agree directions, to be filed by 4pm 6 November 2024, with any points of dispute identified.