Contempt of Court?

THE recent Canal & River Trust (CaRT) Press Release concerning its filing of responses to the Nick Brown Judicial Review, publicises Nigel Johnson's open disparagement of a senior judge in an on-going case, writes Nigel Moore.

It is one thing to criticise the final judgment in a case—every appeal necessarily disparages a judge's conclusions—but to condemn a decision made by a Lord Justice of Appeal as to why a current case should go forward, is an extraordinary step to take.

A bold move

Mr Johnson claims that the case is 'misconceived', having 'no arguable case whatsoever', and cites the decisions of three previous judges who agreed with him. This pitting of his own opinion and that of lesser judges against the opinion of a more senior judge who thought otherwise, is a bold move by the man responsible for all CaRT's legal manoeuvrings.

In Moore v British Waterways (BW), Mr Johnson had considered that complaint about a breach of an undertaking to the Court, was not a matter worth responding to; the judge took a different view, and in the end Mr Johnson ended up having to proffer his unreserved apology on behalf of British Waterways—to both the Court and to the plaintiff—in the further Statement he was required by the judge (Mr Justice Hildyard) to provide.

Not their finest hour

In his subsequent judgment, Mr Justice Hildyard noted Mr Johnson's final admission that silence from his legal department was 'clearly unacceptable', and stated simply: "I agree". The matter was allowed to rest there, although it was recorded by the judge as one of the indicators that in this and other elements, BW had not shown themselves 'in their best or finest hour'!

With that background, it might have been thought that future pronouncements from Mr Johnson would be more guarded. In retrospect, in the case of Moore, it is obvious that a more knowledgeable plaintiff would have known to bring an action for Contempt of Court at the point of breach; whether that is likely to happen in the present case is unknown.

Certainly, it will be most unfortunate for the charity's image if further Court disapprobation ensues from this Press Release. Perhaps the charity's top legal advisor should have reminded himself of another of Mr Justice Hildyard's observations in Court: "It is not impossible that Mr. Johnson thinks that is still the case, but if he did it would not matter a row of beans..."