Bargain Busting Limited v Shenzhen Ske Technology Company Limited & Ors

1. You are in Find Case Law
2. Bargain Busting Limited v Shenzhen Ske Technology Company Limited & Ors

Bargain Busting Limited v Shenzhen Ske Technology Company Limited & Ors

[2026] EWHC 933 (Ch)

Bargain Busting Limited v Shenzhen Ske Technology Company Limited & Ors

[2026] EWHC 933 (Ch)

---

Introduction

---

1. This is my judgment on applications made by two notices, one dated 10 January 2026 and the other 14 January 2026. The applications are made by Shenzhen SKE Technology Co Ltd, Stobbs IP Ltd, Ms Wan-Yi Tsai and Mr Jixuan Si, the four respondents to an earlier application by Bargain Busting Ltd by notice dated 18 August 2025 to commit those respondents for contempt of court. The notice dated 10 January 2026 concerns the application of the 2 nd to 4 th respondents, and the notice dated 14 January 2026 concerns the application of the first respondent. The applications made by the two notices are to strike out the contempt proceedings. The original contempt application notice dated 18 August 2025 was amended on 14 November 2025 in order also to make an application for the joinder of Mr Jan-Caspar Rebling as a further respondent to the contempt proceedings.

---

1. This judgment accordingly deals with the applications to strike out the contempt proceedings and also with the joinder application. Obviously, if the contempt proceedings were struck out, the joinder application would fall away. I mention here, to avoid any confusion, that these applications are being dealt with in the Chancery Appeals List, not because they are an appeal from another judge, but simply because they are made in the context of an appeal to the Chancery Division of the High Court from a decision of the Intellectual Property Office, and that appeal was in the Chancery Appeals List.

---

1. In these applications, the first respondent on the one hand, and the 2 nd to 4 th respondents on the other hand, are represented by separate firms of solicitors, but they have jointly instructed the same leading and junior counsel to conduct the advocacy of their applications, on the basis that their interests are aligned. Because the applicant in the contempt proceedings is the respondent in the strike out applications, and the respondents in the contempt applications are the applicants in the strike out applications, I will not refer further to “applicant” and “respondent” in this judgment. Instead, I will describe the contempt applicant as “BBL”, the first contempt respondent as “SST”, the second contempt respondent as “SIP”, the third contempt respondent as “Ms Tsai”, and the fourth contempt respondent as “Mr Si”.

---

1. The applications with which I am concerned are supported by witness statements from Stefano Ruis (of Hickman and Rose) dated 10 January 2026 and from William Christopher (of Kingsley Napley LLP) dated 14 January 2026. Further witness statements in support are from Mr Ruis, dated 30 January 2026 and 27 February 2026. The applications are opposed by a witness statement dated 13 February 2026 of Stephen Lowry of Brandsmiths, who are BBL’s solicitors. Mr Lowry also made affidavits dated 18 August 2025 and 14 November 2025 in support of the two contempt application notices.

---

Background

---

1. The present applications arise on the periphery of intellectual property litigation between BBL and SST. Those two companies are both competitors in the UK vaping market. In that litigation, SIP have been acting as lawyers for SST. For present purposes I need only set out a limited amount of detail. Briefly, therefore, BBL applied to register a trade mark, known as “Crystal Bar”, for one of its products. SST opposed this. The opposition to the registration was considered by the UK Intellectual Property Office (“IPO”). Following a hearing, the IPO dismissed SST’s opposition. SST appealed that decision to the High Court. On 4 July 2025, Michael Tappin KC, sitting as a deputy High Court judge, handed down a written judgment, dismissing that appeal ([2025] EWHC 1629 (Ch)). The order giving effect to that judgment was agreed between the parties’ lawyers (who were intellectual property specialists), and sealed on 7 July 2025. Paragraph 2 of that order provided that the trade mark application “shall proceed to registration”. The order did not provide for any stay on registration of the trade mark, although it did expressly provide that any appellant’s notice seeking permission to appeal against the decision of the High Court should be lodged with the Court of Appeal by 25 July 2025.

---

1. On 14 July 2025 the IPO wrote to the parties, asking what had happened to the appeal to the High Court. The following day, BBL’s lawyers sent a copy of the court’s order of 4 July 2025 to the IPO. The letter was copied to SIP on behalf of SST. On 16, 17 and 18 July 2025, Ms Tsai and Mr Si, who are solicitors employed by SIP, sent written representations to the IPO. These are set out below. Those representations form the basis of the allegations of contempt of court against the respondents.

---

1. At that time, the IPO Manual of Trade Marks Practice, as updated in September 2024, relevantly provided that:

---

“7. Any decision made by the Tribunal under the Act (‘decision’ includes an exercise of discretion) can be appealed. An appeal seeks to have the Tribunal’s decision reversed, set aside or varied. A party who files an appeal will become the ‘appellant’ in the ensuing appeal and the other party becomes the ‘respondent’ to that appeal. If both parties file appeals, this will give rise to cross-appeals in which each party becomes the appellant in relation to their own appeal and the respondent in relation to the appeal of the other party.

---

---

There are two possible routes of appeal which are:

---

• to the ‘Appointed Person’ (a person appointed by the Lord Chancellor to hear and decide appeals, and who meets the eligibility set out in the Act) or

---

---

• to the High Court in England, Wales and Northern Ireland and the Court of Session in Scotland

---

If a decision of the Tribunal is appealed, the implementation of the decision will be suspended until the appeal process has been concluded (POINT FOUR Trade Mark BL O/373/02).”

---

(Emphasis supplied. The reference to “POINT FOUR” is explained below.)

---

The correspondence

---

1. The substance of the relevant correspondence is as follows. On 16 July 2025, Ms Tsai replied to the IPO inquiry of 14 July as follows:

---

“Thank you for your e-mail. We write further to the below for Shenzhen SKE Technology Co Limited.

---

---

Please kindly note that the judge’s order, which we attach again for ease, includes a deadline of 25 July 2025 to apply to the Court of Appeal for permission to appeal at paragraph 4.

---

---

We therefore respectfully request that no registry updates are effected at present. We will update the Tribunal in due course at that deadline. Please let us know if you have any questions.”

---

---

1. On the same day, Mr Lowry of Brandsmiths wrote to the IPO, commenting on Ms Tsai’s email. He said that

---

“The order has immediate effect and applying for permission to appeal does not stay the order”,

---

and that Brandsmiths repeated their earlier request for the status of the mark to be updated.

---

1. On 17 July 2025, Mr Si sent an email to the IPO, saying:

---

“On behalf of Shenzhen SKE, we respectfully disagree. Our client presently intends to appeal the Order to which Brandsmiths refer. Paragraph 4 of the order specifies a deadline of 25 July 2025 to apply to the Court of Appeal for permission to appeal.

---

---

Consequently, trade mark application No. 3786148 CRYSTAL BAR should not be registered until after either permission to appeal is refused, or, if it is granted, the final determination of any appeal.

---

---

As the UKIPO Tribunal is aware and both parties shall agree, the fundamental issue is the status of the UK trade mark application No. 3786148 CRYSTAL BAR. The UKIPO hearing decision (decision no. BL O/1063/24) found the mark should be registered. The appeal to the High Court was only to challenge this finding. Although the High Court decision ([2025] EWHC 1629 (Ch)) dismissed the challenge, the High Court order in paragraph 4 has provided a period of 21 days for the parties to challenge both the High Court’s dismissal and the UKIPO’s decision on the status of the UK trade mark application No. 3786148 CRYSTAL BAR. Allowing the UK trade mark application No. 3786148 CRYSTAL BAR to be registered effectively deprives the parties’ legal rights to appeal under paragraph 4 of the court order.

---

---

The status of the UK trade mark application No. 3786148 CRYSTAL BAR is not confirmed full or final. The UKIPO is under a public duty to maintain the register of trade marks ensuring they are as accurate as possible. Should the UKIPO proceed to register this mark but later the court decides that the mark should not be registered and the UKIPO has to cancel the registration, it will be wasting the UKIPO’s time. Innocent third parties who rely on the UKIPO’ register during that period may also be misled by the status of the UK trade mark application No. 3786148 CRYSTAL BAR. This will cause significant injustice to the parties involved and the general public.”

---

---

1. Mr Lowry of Brandsmiths once again responded on the same day. He said:

---

“The wording of the Order was agreed by the parties in advance of it being finalised and handed down by the High Court.

---

---

If SKE/Stobbs wanted the registration of the mark to be dependent or contingent “ until after either permission to appeal is refused, or, if it is granted, the final determination of any appeal”, they should have made this clear at the appropriate time and suggested amendments to the wording of the Order to be agreed and finalised in advance of it being handed down, but this did not happen.

---

---

Paragraph 2 of the Order states that “UK trade mark application no. 3786148 shall proceed to registration ”. Following the Order, as the Tribunal should, does not deprive SKE of its rights to appeal under paragraph 4 of the order. SKE can still appeal within the timeframe allowed.

---

---

Furthermore, and in any event, an appeal does not operate as a stay.”

---

---

1. And he referred to CPR rule 52.16. Lastly in his email, he said:

---

“On a final point, we are extremely concerned that Stobbs is attempting to mislead the Tribunal and interfere with the due administration of justice by seeking to call into question a mandatory Order from a High Court judge (and in doing so ignoring the express provisions of the CPR which it has not brought to the IPO’s / Tribunal’s attention). We will be writing to Stobbs regarding this under separate cover.”

---

---

1. On 18 July 2025, Mr Si wrote again to the IPO. He said:

---

“The central question to the UKIPO is whether the mark is registered or not. It is our position that the mark is not registered because the decision is pending for appeal.

---

---

Brandsmiths’ submissions are also alluding to this point. It states ‘Should a court later decide that the mark should not be registered, the UKIPO can rectify the register, as in any other case’. They agree that the court could still decide that the mark should not be registered.

---

---

We note that Brandsmiths will write to us separately on this issue. We welcome it, so the UKIPO does not need to be involved until the Order is clarified. We will seek Brandsmiths’ agreement to vary the Order, and if not given, apply to the court to vary the Order.”

---

---

Next steps

---

1. Subsequently, in email correspondence, and as foreshadowed, SIP sought a variation of the order of Mr Tappin KC to provide expressly for a stay of registration pending the application for permission to appeal to the Court of Appeal, and, if given, the appeal itself. On 22 July 2025, Brandsmiths refused to consent to such a variation, suggesting instead that the matter be dealt with as a paper application. On 25 July 2025, SIP lodged an appellant’s notice with the Court of Appeal seeking permission to appeal against the order of Mr Tappin KC. On 28 July 2025, Brandsmiths wrote to SIP alleging that the representations made in July to the IPO concerning the registration of the trade mark amounted to a contempt of court, and threatening proceedings unless SIP wrote to the IPO agreeing to the immediate registration of the trade mark. On 29 July 2025, SIP issued an application notice seeking an order, without a hearing, varying the order of Mr Tappin KC as previously sought. The application and evidence in support were served the same day.

---

1. On 18 August 2025, Brandsmiths purported to serve SST with contempt proceedings (the application at that stage still unsealed) by sending them by email to SIP. SIP itself, Ms Tsai and Mr Si were also named as respondents in these proceedings. On 21 August 2025, they sent a further email attaching a sealed copy of the application notice. Brandsmiths subsequently shared copies of the contempt proceedings with the IPO, and on 27 August 2025 sent an email to the IPO threatening High Court proceedings against it unless the mark were registered by 4 PM on the next day. On the following day, Brandsmiths sent a further email to the IPO timed at 15:40, responding to earlier correspondence from SIP, and saying that they “look forward to receiving confirmation that the mark is registered by 4 PM”. As I understand the matter, no such confirmation was then given.

---

1. Instead, the IPO decided that there should be a hearing. This was fixed for 12 September 2025. On 9 September 2025, SST applied for an adjournment, and a CMC was held to consider this on 10 September 2025. At that hearing, Ms Horlick KC indicated the impact which the subsisting contempt proceedings would have on SST’s and SIP’s ability to make submissions at the hearing on 12 September 2025. However, the hearing officer decided that the hearing of 12 September 2025 should go ahead. It did go ahead, by video conference, at which a representative of SST observed, but in which the representative did not participate. The hearing was conducted by Dr James Porter, the IPO’s chief hearing officer.

---

The IPO Tribunal’s decisions

---

1. Dr Porter handed down his main written decision on 19 September 2025. In this decision he referred throughout to the first contempt respondent (to whom I have referred in this judgment as SST) as “SKE”. His conclusion (at [83]) was

---

“that the Registrar should proceed to register the mark in accordance with paragraph 2 of the order as soon as administratively possible, despite proceedings before the court which seek to vary the order and seek permission to appeal”.

---

---

1. However, for my purposes I need also to set out paragraphs 57-58 and 62-72 of Dr Porter’s decision. They read as follows:

---

“57 As I have already noted, once SKE had applied to vary the order and had sought leave to appeal, Stobbs wrote to the IPO to request that the status of the trade mark application remain unchanged until the court had decided upon both of those applications.

---

---

58 SKE’s request – to leave the register unchanged until routes of appeal have been exhausted – is one that, in broad terms, is very familiar to the IPO Tribunal and to its users. It arises from the long-standing practice set out in Planet Epos Ltd v Nettec Solutions Ltd (“POINT FOUR”) BL O/373/02.

---

---

[ … ]

---

---

62 Paragraph 15 of a witness statement dated 19 August 2025 from a Stobbs representative refers to the Registrar’s established practice and to POINT FOUR. It says that ‘It was not understood or appreciated that the wording of paragraph 2 of the Court’s Order would have the effect of overriding this usual practice or was intended to have this effect’. It also contends that the Registrar’s practice ‘would include any subsequent appeal to the Court of Appeal or Supreme Court’, pointing to section 7 of the Manual of Trade Marks Practice concerning Tribunal appeals.

---

---

63 BBL made some submissions on these points in their correspondence to the IPO of 21 and 27 August 2025. They pointed to the qualification made in POINT FOUR that the Registrar’s action was suspended ‘unless there is a direction to the contrary’, and contended that it applied in this case – since the order provided an ‘unequivocal direction for registration’. Second, they said that the Manual and flow chart within it did not support the POINT FOUR practice when it came to orders from the court. Third, they suggested that the POINT FOUR practice was seemingly contrary to CPR rule 52.16.

---

---

64 I deal with the Manual and practice point first. Statements in the Manual or other IPO guidance are of course not binding. Nevertheless, as a statement of current practice section 7 of the Tribunals section of the Manual seems entirely clear. It says that, if a decision of the Tribunal is appealed, ‘the implementation of the decision will be suspended until the appeal process has been concluded’ (my emphasis). The flow chart which follows sets out the two appeal routes, and shows that the court route may not be concluded until the Supreme Court is reached. Thus in my view the Manual gives clear guidance that the Tribunal applies the POINT FOUR practice at all levels of appeal.

---

---

65 Even if I am wrong and the Manual is not clear, it is nevertheless the Tribunal’s practice. It took that approach in this case. At first instance, once the hearing officer had decided that the mark could proceed to registration, the Registrar held off from registering the mark, pending any appeal to the High Court, and then did not act to register the mark during the appeal proceedings. The Registrar then enquired about the appeal outcome, continued to leave the register unchanged, and asked SKE to confirm whether permission to appeal to the Court of Appeal had been sought.

---

---

66 SKE’s request that the register remain unchanged until the outstanding court applications had been decided was, in my view, consistent with current and longstanding Tribunal practice. I am not aware that the practice has been challenged until now, which I suspect is because one of two situations usually occurs.

---

---

67 One is that any court order caters explicitly for the appeal period and any possibility of further appeal. Doing so leaves the parties, the Registrar and the wider public in a welcome position of certainty and transparency, and there is much to be said for it.

---

---

68 The other is that, absent any such provision in an order, the parties are nevertheless, out of practicality or pragmatism or for some other reason, content to await the end of the appeal period before seeking to have the register changed.

---

---

69 Since neither of those two situations applies in this case, it raises the question of whether the POINT FOUR practice should apply only to an appeal from a decision of the Registrar, or should continue to apply more generally upon any further appeal.

---

---

70 The practical issues caused by updating the register based on a decision where an appeal is still possible apply equally at any level of decision and appeal. Those issues go to the points that SKE noted about the duty of the Registrar to maintain an accurate register and the adverse impacts of registering and then potentially reversing a registration.

---

---

71 I share those concerns. It is clearly unsatisfactory for rights to come on and off the register, leaving third parties and the wider public in a position of considerable uncertainty. Having rights appear and disappear (or vice versa) may raise significant questions over the status of infringing acts, and third party terms may be needed to regularise the position of parties. It may also lead to considerable uncertainty in proceedings where the existence of earlier registered rights is relied upon.

---

---

72 However, despite the practical concerns, I conclude that POINT FOUR does not establish that the Registrar can leave the register unchanged in light of a court order.”

---

---

1. On 18 December 2025, the IPO Tribunal dismissed an application by BBL for “offscale” costs, awarding only £1,100 in ordinary costs. In his written reasons for the costs decision, Dr Porter said:

---

“33 As I explained in my main decision at paragraphs 64 to 66, SKE’s request that the register remain unchanged until the court applications had been decided was consistent with current and long-standing Tribunal practice and with the guidance in the Manual of Trade Marks Practice. I further noted that I was not aware that the practice had been challenged previously.

---

---

34 Given this, it seems highly likely that – had BBL not raised the point – the Tribunal would have followed its existing practice. My main decision notes that the Registrar initially took the usual steps. Tribunal staff enquired about the appeal outcome, continued to leave the register unchanged, and asked SKE to confirm whether permission to appeal to the Court of Appeal had been sought.

---

---

35 This is the long-standing practice which SKE were, in the event, arguing should be maintained. I do not see how SKE’s submissions to the Tribunal can be characterised as the Tribunal somehow being misled or deceived by SKE and Stobbs. Nor do I agree that they were somehow ‘weaponising’ the court applications in respect of the proceedings before me. The existence of those court applications (combined with the particular wording of the order) raised a legitimate question over the Tribunal’s practice which needed to be resolved.”

---

---

The alleged contempt of court

---

1. I now turn to the particulars given of the alleged contempt of court. These are contained in the amended application notice dated 14 November 2025. The relevant parts of the notice are boxes 5 and 12. In Box 5, BBL sets out the nature of the contempt as:

---

“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.”

---

---

1. Box 12 then provides a summary of the factual allegations. Although I take into account the whole of the summary, I refer in particular to paragraphs 4 to 7:

---

“ Representations to UKIPO

---

---

1. On 15 July 2025 at 22:30, Brandsmiths emailed the UKIPO Tribunal enclosing the Order and seeking for the status of the Mark to be updated to show its registration, in accordance with paragraph 2 of the Order.

---

---

1. Stobbs IP, acting through Grace Tsai Ms Wan-Yi Tsai, and Mr Jixuan Si under the supervision of Jan-Caspar Rebling and on behalf of the Appellant, have sent a number of emails to the UKIPO relating to the Order. The details of those representations are in the enclosed Affidavit and Fourth Witness Statement of Mr Stephen Lowry and enclosed Second Affidavit of Stephen Lowry. These include inter alia the representations:

---

a. In an email on 16 July 2025 at 08:19 from Ms Grace Wan-Yi Tsai from Stobbs IP to the UKIPO Tribunal that ‘We therefore respectfully request that no registry updates are effected at present. We will update the Tribunal in due course at that deadline. Please let us know if you have any questions.’;

---

---

b. In an email on 17 July 2025 at 09:35 from Jixuan Si from Stobbs IP to the UKIPO Tribunal that (i) ‘trade mark application No. 3786148 CRYSTAL BAR should not be registered until after either permission to appeal is refused, or, if it is granted, the final determination of any appeal’; and (ii) ‘The status of the UK trade mark application No. 3786148 CRYSTAL BAR is not confirmed full or final. ’; and c. In an email on 18 July 2025 at 11:04 from Jixuan Si from Stobbs IP to the UKIPO Tribunal that ‘ It is our position that the mark is not registered because the decision is pending for appeal.; and ‘the court could still decide that the mark should not be registered.’

---

---

(Each together and individually, the ‘ Representations’)

---

Contempt of court

---

---

1. For the reasons set out in the enclosed Affidavit of Stephen Lowry dated 18 August 2025 and Second Affidavit of Stephen Lowry dated 14 November 2025, the Representations made by the Defendants were (a) false, (b) interfere with the due administration of justice, and (c) made when the maker of the representations had no honest belief in the truth of their statements and/or knew of its likelihood to interfere with the course of justice.

---

---

1. For the reasons set out in the enclosed Affidavit of Stephen Lowry dated 18 August 2025 and Second Affidavit of Stephen Lowry dated 14 November 2025, the Representations made by the Defendants were false and/or misleading, as they must have known; they have interfered with the administration of justice (or at least have given rise to a real risk of such interference) in that they have thwarted or undermined the direction of the High Court that the Mark should proceed to registration; and they were made, it can be inferred, with the specific intent of interfering with the administration of justice.”

---

---

Law

Contempt of court

---

1. Next, I turn to consider the relevant law. This deals with two subjects: firstly with contempt of court, and secondly with the striking out of proceedings. As for contempt of court, it is well known that there are two kinds, civil and criminal. 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.

---

1. The most recent authority on criminal contempt of court is the decision of the Court of Appeal in BHP Group (UK) Limited v Municipio de Mariana [2026] EWCA Civ 294, which was delivered just four days before the hearing in this matter. The law was discussed at paragraph 31 to 49 of the judgment. The last of these paragraphs contains a helpful summary of the law, derived from the authorities. Before I set that out, however, I should first refer to a passage from the speech of Lord Diplock in the leading authority of Attorney General v Times Newspapers Limited [1974] AC 273, HL, because that passage is referred to in the summary.

---

1. In his speech, Lord Diplock said this (at 309B-D):

---

“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.”

---

---

1. In BHP, Popplewell LJ, with whom Lady Carr CJ and Phillips LJ agreed, considered the case law on criminal contempt, and said:

---

“49. Drawing the strands together I would state the relevant principles as follow:

---

---

(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 5 th 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.”

---

---

1. To this comprehensive quotation I add two things. First, there is what Popplewell LJ said in paragraph [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.”

---

---

1. Second, in the following paragraph ([64]), there is Popplewell LJ’s summary of what Lord Reid said in Attorney-General v Times Newspapers at p. 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.”

---

---

1. I should also refer briefly to the decision of the Court of Appeal in ADM International SARL v Grain House International SA [2024] 1 WLR 3262. In that case, the court considered the circumstances in which conduct which in law amounted to a contempt should not be punished as such a contempt, or even should not be held to be a contempt, because it would be an abuse of the process to do so. Popplewell LJ, with whom Singh and Snowden LJJ agreed, 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.’

---

---

1. 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].

---

---

1. 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.”

---

---

Striking out proceedings

---

1. The rules about striking out proceedings are contained in CPR rule 3.4, which  relevantly to this case reads as follows:

---

“(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 … ”

---

---

---

1. In the BHP case Popplewell LJ said

---

“25. 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.”

---

---

1. In TBD (Owen Holland) Limited v Simons [2021] 1 WLR 992, CA, the court considered the possibility that a court might bring contempt proceedings to an end on its own initiative. A search order and an imaging order had been obtained from the court and executed. Subsequently, the claimant had obtained permission to bring contempt proceedings against one defendant (Simons) and had applied for permission to bring such proceedings against another (O’Boyle), in each case for alleged breaches of the orders. However, Marcus Smith J held that the claimant had committed significant and serious breaches of the search order, and on his own initiative both revoked the permission as against Simons, and dismissed the application as against O’Boyle. The claimant appealed to the Court of Appeal.

---

1. Arnold LJ (with whom Richards and Newey LJJ agreed) said:

---

“242. Marcus Smith J gave three reasons for deciding to dismiss TBD's application. The first was that TBD was relying in support of the application upon material which had been obtained in breach of the Search Order. The second was that, in so far as TBD relied upon material obtained in accordance with the Search Order, the application was a breach of undertaking C(2), because committal proceedings against Mr O'Boyle were separate proceedings. The third was expressed by Marcus Smith J at [84(4)] as follows:

---

‘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’.

---

[ … ]

---

---

1. … 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. Given the rather unusual circumstances of this case, I consider that Marcus Smith J was entitled to raise the matter of his own motion as consequential to his decision that TBD had breached the Search Order …

---

---

[ … ]

---

---

1. As for Marcus Smith J's third reason, this is supported by the recent observations of Andrew Baker J in Navigator Equities Ltd v Deripaska [2020] EWHC 1798 (Comm), which I would endorse:

---

‘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.

---

---

1. 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. …

---

---

1. A further consequence is that the claimant / applicant pursues a contempt charge as much as 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 …’.”

---

---

---

Discussion

General

---

1. I turn now to consider the application of these principles to the present case. 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.

---

1. 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.

---

1. My second point relates to the need to show a public interest in bringing criminal contempt proceedings. In its skeleton argument, BBL submits that

---

“36. … there is no requirement for a person who brings a contempt application as of right to demonstrate some wider public interest.”

---

---

1. I assume that the use of the phrase “as of right” follows from the fact that, under CPR rule 81.3(5), permission to make such an application is required only

---

“where the application is made in relation to –

---

(a) interference with the due administration of justice, except in relation to existing High Court or county court proceedings;

---

---

(b) an allegation of knowingly making a false statement in any affidavit, affirmation or other document verified by a statement of truth or in a disclosure statement.”

---

---

Although the present application alleges interference with the administration of justice, there is no need for permission to make the application, because the allegations are made in relation to existing High Court proceedings.

---

1. In their skeleton argument, SST, SIP, Ms Tsai and Mr Si submit that:

---

“66. … The court must be careful not to conflate (as [BBL] has done) the court’s civil contempt jurisdiction which can legitimately be invoked in furtherance of [BBL]’s private law interests … and the Court’s criminal contempt jurisdiction which has no concern for such interests, focusing solely on the public interest.”

---

---

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

---

The practice of the IPO

---

1. The UK IPO has a duty to register trade marks, and to amend and update the register thereafter, in accordance with the relevant rules. In the present case BBL applied to register a trade mark. SST opposed this. The IPO has considered the opposition, and made a decision. But it is the IPO which is charged with registration. The parties themselves do not register the trade mark. Nor does the High Court. 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. But of course they can, and do, make submissions.

---

1. Ms Tsai and Mr Si wrote to the IPO to ask it not to register the trade mark pending the application for permission to appeal to the Court of Appeal. It is submitted on their behalf that they were asking the IPO to implement its own guidance in the Manual of Trade Mark Practice, ie that registration not be effected until the appeal process was concluded. They do not refer to that guidance in their emails. However, given the wording of the Manual at that time, the terms of Dr Porter’s decisions, and their own position as specialist IP lawyers, in my judgment there is simply no real prospect of showing at the hearing of this contempt application that they were doing otherwise. And, for my part, the words in the Manual “until the appeal process has been concluded” are quite capable of applying to the application for permission to appeal to the course of appeal and any further appeal.

---

1. BBL says that writing to the court and seeking to delay the registration is an interference with the enforcement of a High Court order. I do not agree, for the reasons already given. BBL further says that the court cannot be sure that there was innocent reliance on the practice Manual. It says that this needs to be explored at a full hearing. It says further that the court cannot say now what is the usual practice. A full hearing is needed. As to the last point, however, in my judgment the Manual and Dr Porter were quite clear on the practice to be followed, before the recent amendments to the Manual. As already noted, the Manual at that time said:

---

“If a decision of the Tribunal is appealed, the implementation of the decision will be suspended until the appeal process has been concluded”.

---

---

1. And Dr Porter in his decisions confirmed this at paragraphs 64-66 of his decision of 18 September 2025 (set out above). I refer especially to paragraph 66, where he said that SST’s

---

“request that the register remain unchanged until the outstanding court applications had been decided was, in my view, consistent with current and longstanding Tribunal practice”.

---

I refer also to paragraph 35 of the costs decision of 18 December 2025, where he said:

---

“This is the long-standing practice which SKE were, in the event, arguing should be maintained. I do not see how SKE’s submissions to the Tribunal can be characterised as the Tribunal somehow being misled or deceived by SKE and Stobbs.”

---

---

The allegation of contempt

---

1. As already noted, in considering the application to strike out the contempt proceedings, I must assume that BBL will be able to prove all the allegations of fact. The allegations made are set out in two paragraphs in the application notice, as follows. In paragraph 6 of the amended contempt application notice, they are that

---

“the Representations made by the Defendants were (a) false, (b) interfere with the due administration of justice, and (c) made when the maker of the representations had no honest belief in the truth of their statements and/or knew of its likelihood to interfere with the course of justice.”

---

---

1. In paragraph 7 of the amended contempt application notice, they are that

---

“the Representations made by the Defendants were false and/or misleading, as they must have known; they have interfered with the administration of justice (or at least have given rise to a real risk of such interference) in that they have thwarted or undermined the direction of the High Court that the Mark should proceed to registration; and they were made, it can be inferred, with the specific intent of interfering with the administration of justice.”

---

---

1. The phrase “the Representations” in these paragraphs is defined in the contempt application notice as referring to the words used by Ms Tsai and Mr Si in their emails to the IPO and set out in paragraph 5 of the notice. I set these out earlier in this judgment. I note in passing that the particular words relied on are in fact just parts of the emails concerned. They therefore appear in the notice divorced from their context. At any substantive hearing of the contempt application, they would need to be put back into that context.

---

1. As to the emails themselves, there is no dispute as to what they said. They are an admitted fact. The allegation in paragraph 5(a) of the contempt notice is of a request to the IPO not to update the register “at present”. The allegations in paragraph (b) are (i) the expression of desire that the mark “should not be registered” pending further appeal, and (ii) a statement that the status of the mark “is not confirmed full or final”. That in paragraph 5(c) is a statement that SST’s and SIP’s “position is that the mark is not registered because the decision is pending for appeal”. In his main decision, Dr Porter (for example, at paragraphs [57], [58] and [66]) treated the emails from SIP taken together as a request not to update the register pending further appeal.

---

The status of requests

---

1. In my judgment, requests are not relevantly capable of being false or misleading in fact. A request is a request. (The more so when they are made to a person not to do something which it alone has power to do, and which the requester cannot prevent.) In grammatical terms, a request is not indicative (expressing a fact, or at least an alleged fact), but is at least subjunctive (expressing a hope, a desire or a contingency), if not imperative (expressing a command). A fortiori, commands to such a person are not indicative either, and cannot be relevantly false or misleading in fact.

---

1. The only clearly indicative statement amongst those relied on by BBL in the contempt notice is the statement (in paragraph 5(c)) of what was BBL’s and SIP’s position. That could be false, in the sense that their true (but unexpressed) position might be something else: cf Edgington v Fitzmaurice (1885) 29 Ch D 459, 483. The expression of the position itself however would be an expression of their desire, and would stand on the same footing as the majority of the “Representations” relied on. I accept that it is not clear whether the words in paragraph 5(b) saying that the status of the mark “is not confirmed full or final” are intended to be indicative or subjunctive. But, even assuming in favour of BBL that it is the former, it is at most a factual statement that the process has not yet reached the end of the road.

---

Risk of interference

---

1. As to whether the representations made have given rise to a real risk of interference with the administration of justice, that is a matter of law and not fact. The court is well able, on a strike-out application, and assuming the relevant facts in favour of the respondent (here BBL), to make a decision of that kind, so long as it is satisfied that there is unlikely to be any further material that could affect the answer. Here the evidence (to stand as evidence in chief) has already been filed. There is no suggestion in the present case that the contempt respondents made any threats to the IPO to persuade it not to register the trade mark in question. If the IPO had immediately registered the trade mark, as requested by Brandsmiths, there is nothing that SST or SIP could have done about it. Their opposition had been dismissed, and their (first) appeal against that dismissal likewise. Only their application for permission to appeal was outstanding.

---

1. I will assume in favour of BBL that on the substantive hearing of the contempt proceedings it would be able to prove the falsity of the only two (at most) indicative statements amongst the “Representations” complained of, that is, (i) that what was represented as SST’s and SIP’s position was not in fact their position, and (ii) that it was false to say that it was not yet the end of the process of opposition to registration. I will further assume (without deciding) that the registration of a trade mark, which is ultimately an administrative procedure, like the registration of estates in land at HM Land Registry, is within the scope of criminal contempt of court as the “administration of justice” capable of being interfered with in the relevant sense. In my judgment, in those circumstances, the two indicative statements assumed to be false could not possibly “interfere” with the administration of justice. The IPO alone had the power to decide to register, it knew exactly what the legal position was, and acted in accordance with its own internal guidance at the time (since changed), with which the “Representations” were consistent.

---

“Improper” conduct?

---

1. In case I were wrong, however, and the respondents’ subjunctive/imperative statements so far discounted by me were nevertheless to be taken into account for the purposes of the contempt jurisdiction, I would reach the same conclusion in relation to those other statements. Submissions made by litigants to a court or tribunal, or to a government office charged with the application of the registration of legal rights, are just that, submissions. In BHP, Popplewell LJ said that “ 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. ”

---

1. But, in my judgment, there is nothing improper, in the sense used by Popplewell LJ, in a person interested in the (non) registration of a trade mark submitting that, for some reason or another, the registration should not yet take place. Such a person is not denying that the law exists or is ultimately applicable, but on the contrary is submitting that there exists a good reason for not yet applying it. But it goes further than that. Litigants, and their lawyers, are entitled to argue as to what the law actually is. Losing that argument should not and does not put the litigant or the lawyer arguing for the failed position in contempt of court. Without wishing to be melodramatic about this, it would be a dark day for civil liberty if that were the law. However, in my judgment, it is not.

---

Mens rea for contempt

---

1. In the light of my conclusion, it is strictly unnecessary for me to consider whether those accused of the contempt of court had the relevant mens rea. The only evidence that they did is that they did the acts complained of, that is, that they sent the emails containing the Representations. There is no evidence that they appreciated, or were reckless as to whether, their emails would amount to a significant risk with the administration of justice. In my judgment, on the material before me, there is no real prospect in the present case of showing that they acted with the relevant mens rea.

---

Overall

---

1. For the reasons given, this application to commit for contempt cannot succeed, and should be struck out.

---

Joinder of Mr Rebling

---

1. Finally, I turn to the question of the joinder of Mr Rebling. Strictly speaking, this falls away in the light of my conclusion on contempt of court. Nevertheless, in case I were wrong on that point, and the matter went further, I express my view here briefly. Mr Rebling’s joinder is sought by the amended application notice dated 14 November 2025. The law relating to the joiner of further parties is set out in CPR rule 19.2, which provides as follows

---

“(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.”

---

---

---

1. It is to be noted that this application is made at a later stage in the contempt proceedings, some three months after the original application notice. BBL says that it is desirable to add Mr Rebling because he had a role in the correspondence, as the more senior lawyer at SIP supervising the activities of Ms Tsai and Mr Si. It also says that it was not aware of his role until more recently, which explains the application to amend the original contempt application notice. But it is not suggested that Mr Rebling actually wrote, or rewrote, or even amended the correspondence in question. There is no new allegation to be made, or issue to be created between the parties, which requires to be resolved, in order to deal justly with this application.

---

1. To my mind this joinder is not necessary, nor even desirable. It is not necessary, because the respondents to the application include the client, their law firm, and the two writers of the emails. The contempt is either proved against the respondents or it is not. Adding Mr Rebling individually does not take the matter any further. Instead, it simply uses up further resources. Nor is it even desirable. It dilutes the allegation without adding to its proof, or benefiting the process in any other way. I accept that there may be value in some cases in bringing in the senior management of an intermediary (such as a law firm) in order to bring home to them the need for proper supervision of more junior staff, but in this case the intermediary itself (the law firm) is already a respondent. If the point of the amendment had been to add Mr Rebling, but at the same time to take out Ms Tsai and Mr Si, that might have been different, but that is not what has been sought here. In my judgment, if it had not fallen away, the application should have been dismissed, as achieving insufficient benefit to justify the extra use of resources.

---

Conclusion

---

1. For the reasons given above, the contempt proceedings are struck out, and the joinder application falls away (although it would have been dismissed in any event). I should be grateful to receive a draft minute of order, preferably agreed, to give effect to this judgment.

---

End of document

Document download options

Download PDF (452.3 KB) The original format of the judgment as handed down by the court, for printing and downloading.

Download XML The judgment in machine-readable LegalDocML format for developers, data scientists and researchers.

Help us improve this service

Take a short survey