Held, appeal dismissed. Applications for permission to appeal dismissed. Section 13 of the Administration of Justice Act 1960 gave the contemnor a right of appeal to the Court of Appeal against a decision to commit him to prison for contempt, and the CPR reflected that right by excepting appeals against such decisions from the requirement to obtain permission to appeal. However, if the decision or order in question related to an ancillary matter, such as costs, permission to appeal was required. The first question was whether the court had jurisdiction to entertain the present applications for permission to appeal. None of the parties suggested that it did not. Although, strictly speaking, the judge was not exercising his jurisdiction to punish for contempt at the time when he ruled on the recusal application and the permission to bid application, he was exercising that jurisdiction when he made the committal order which included the paragraphs dismissing those applications and awarding costs against the applicant. Moreover, the application for recusal was so closely bound up with the question whether the judge should exercise the jurisdiction to punish for contempt that it would make no sense to treat it as falling outside the jurisdictional ambit of section 13 of the 1960 Act. After initial concern the court was satisfied that the permission to bid application, too, was closely bound up with the question of whether the judge should exercise the jurisdiction to punish for contempt and if so, what (if any) sanction should be imposed. As a matter of common sense, the jurisdiction under section 13 of the Administration of Justice Act 1960 had to be treated as extending to any order or decision made by a court in the context of considering an application to commit for contempt, if that order or decision would or did have a direct bearing on the committal application. That would include, for example, an application for an adjournment of the committal application. However, the losing party required permission to appeal against any such ancillary decision or order ( paras 5–8).

When an application was made to adduce fresh evidence in the context of an appeal against committal to prison for contempt of court, the court would adopt the approach taken by the Court of Appeal (Criminal Division) to such applications in appeals against conviction or sentence. The ultimate question was whether the interests of justice required the evidence to be admitted. That did not mean that the question whether it could have been obtained with reasonable diligence and put before the judge at the hearing below ceased to be relevant, but it was a less important consideration than whether the evidence would have made a material difference to the outcome if the judge had seen it, or whether it demonstrated to the appeal court that the judge’s decision was wrong. There were also practical considerations. In a case like the present case where a complaint had been made of the judge’s behaviour at a hearing, it would be difficult, if not impossible, for the court to assess the merits of that complaint or for the parties to make proper submissions about it, without seeing the transcript of that hearing. An appellant would not require permission to refer to previous judgments; nor would he require permission to refer to a transcript of the hearing which gave rise to the judgment under appeal, if what was said and done at that hearing was relevant to the appeal. It was difficult to draw a logical distinction between that transcript, and transcripts providing a record of what was said and done at earlier hearings. In the light of that, it might be open to debate whether transcripts of previous hearings were “evidence”, and even if they were, whether the permission of the court would be required to refer to them, but in a case such as the present the interests of justice would plainly support the grant of permission if it were needed. However, there was a distinction between seeking to rely on fresh evidence and the raising of new arguments on appeal. An application to adduce fresh evidence was not to be used as a vehicle for raising arguments that were not addressed to the judge, still less, grounds of appeal that had not been identified in the appellant’s notice ( paras 10–12).

There was no proper basis for either the application for recusal or the application for permission to sell to the defendant. Both were bound to fail before the judge and were bound to fail on appeal as totally without merit. There was no arguable basis for impugning the committal order and therefore the appeal would be dismissed (paras 94, 100,107,108).