In FW Aviation (Holdings) 1 Ltd v VietJet Aviation Joint Stock Company [2025] EWCA Civ 1458, the Court of Appeal considered the following issue: whether an injunction respondent who has not actually done anything prohibited by the injunction can be guilty of contempt of court for acting contrary to the spirit and purpose of the injunction.
The respondent, FWA, obtained an interim injunction against the appellant, VietJet, preventing it from taking possession of or operating various aircraft or interfering with FWA’s rights to possession and control. VietJet sent letters to Vietnamese authorities, which arguably attempted to interfere with the export of the aircraft. FWA applied to amend an existing contempt application, alleging that the letters constituted contempt. FWA clarified that it did not claim VietJet breached the injunction but argued the letters attempted to circumvent it, contrary to its spirit and purpose, and amounted to intentional interference with the administration of justice, constituting criminal contempt.
At first instance, Picken J granted permission to amend but did not address VietJet’s argument that a respondent cannot commit contempt without breaching the injunction. On appeal, VietJet contended this was wrong. The Court of Appeal allowed the appeal.
VietJet emphasised that there was no allegation it had breached the injunction, so the case was confined to criminal contempt, highlighting the serious consequences of such a finding and the need for a high standard of procedural fairness. FWA argued that criminal contempt extended beyond civil contempt, including the sending of letters by VietJet; that the injunction was intended to protect its entitlement to possession, custody and control of the aircraft; that VietJet could discharge the burden at trial by showing its conduct interfered with the injunction’s purpose; that proving these matters would establish all elements of criminal contempt, even without a breach; and that, on this basis, Picken J had made no error of law.
The Court of Appeal noted the question before it was a matter of law that the court could decide and therefore there was no need to defer a decision until the trial. It then explained the difference between civil and criminal contempt as follows:
A. Civil contempt. An injunction must state clearly and unequivocally what conduct by the respondent is prohibited, so that a respondent knows precisely what it may and may not do; that such prohibitions will be strictly construed; that a heightened standard of procedural fairness is required when an applicant seeks to commit a respondent for breaching the injunction; and that breach of the injunction must be proved to the criminal standard of proof (for example, ADM International Sarl v Grain House International SA [2024] EWCA Civ 33; Navigator Equities Ltd v Deripaska (No. 2) [2024] EWCA Civ 268). It would be inconsistent with these principles to hold that an injunction respondent could be in contempt for doing an act which, although not prohibited by the injunction, was contrary to an undefined spirit or purpose of the injunction. Where the conduct complained of is limited to what is said to be subversion of the purpose of an injunction without actually breaching its terms, there is no scope for holding an injunction respondent guilty of criminal contempt.
B. Criminal contempt. A third party to whom the injunction is not addressed cannot breach it and therefore cannot be liable for civil contempt, as it does not prohibit them from doing anything. A third party can only be liable in criminal contempt for interfering with the administration of justice (see Attorney General v Leveller Magazine Ltd [1979] AC 440). This requires doing an act prohibited by the injunction, with knowledge of it and an intention to interfere (see Attorney General v Times Newspapers Ltd [1992] 1 AC 191; Attorney General v Punch Ltd [2002] UKHL 50). In Wolverhampton City Council v London Gypsies and Travellers [2023] UKSC 47, the Supreme Court held that a non-party not enjoined by an order is not bound to follow it but may be in contempt if they knowingly act in a manner prohibited by the injunction, even without aiding a breach. The court distinguished between being bound as a party and contempt as a non-party who knowingly subverts the court’s purpose. Applying these authorities, the Court of Appeal in FW Aviation found that VietJet had not breached the injunction and was not in contempt for acting contrary to its spirit by sending letters to Vietnamese authorities. As the court explained: ‘There is no basis here for concluding that a third party can be liable for a criminal contempt consisting of an act which is contrary to the spirit (or essence or purpose) of an injunction, but which does not involve doing anything which the injunction prohibits. Rather, in injunction cases, there will only be the actus reus of a criminal contempt by a third party if there is both (1) the commission of an act which, if done by the injunction respondent, would be a breach of the injunction and (2) an interference with the administration of justice in the action between the claimant and the injunction respondent.’
The Court of Appeal stressed that it was important to understand that the purpose of the court in granting an injunction is neither more nor less than to prohibit the conduct which the injunction restrains. There was no wider purpose of preventing conduct which the injunction does not restrain (see Attorney General v Punch Ltd).
FW Aviation provides a useful reminder of the distinction between civil and criminal contempt in the context of injunctions. As the Court of Appeal explained, contempt cannot be founded on alleged interference with the ‘spirit’ or ‘purpose’ of an order: what matters is the actual and express terms of the injunction. For injunction respondents, this means that liability for contempt arises only where the prohibited acts are clearly defined and proven to the criminal standard. For non-parties, it means criminal contempt remains confined to knowingly engaging in conduct that would amount to a breach if done by the respondent, together with interference with the administration of justice.
Masood Ahmed is an associate professor of law at the University of Leicester and co-author of Arbitration of Commercial Disputes: English and International Law and Practice (OUP 2025)
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