Tim Lawrence is a solicitor at Irwin Mitchell.
In the Kelly case heard recently by the Scottish Court of Session, other parties were affected by the injunction (interdict) restraining Mrs Kelly from having a termination of her pregnancy. While the interdict was in place, Mrs Kelly attended a clinic operated by the British Pregnancy Advisory Service (BPAS), which sought advice on whether it could effect a termination.
Mrs Kelly had obtained the consent of two medical practitioners, which is necessary under the Abortion Act. Any termination carried out would not, therefore, have amounted to an "illegal abortion", but BPAS risked contempt of court by interfering with or obstructing persons having duties to the court.
Non-parties can also be in contempt by aiding and abetting others in setting the court at defiance, a principle long established by Seaward v Paterson 1897 1 Ch 545. BPAS was advised that individual trustees, surgical and theatre staff also risked contempt. No comfort could be given to individuals since the case of ex parte Dixon 1803 8 Ves 104, provides that it is a contempt to indemnify another against the consequences of committing contempt.
BPAS, a charity which has a policy to provide care and treatment whenever possible, has previously been involved in the cases of Paton 1979 QB 276 and C v S 1987 1 All ER 1230 and was again advised to withhold treatment pending determination by the court, as it had done then.
The jurisdiction of Scottish courts over parties in England and Wales was then considered. Judgments of foreign courts of competent jurisdiction are generally conclusive.
Here, the order was not impeachable by refusal to apply doctrines of private international law. Further, any public policy argument was restricted since the Scottish Court, with similar public policy concerns, had already considered this aspect – Israel Discount Bank of New York v Hadjipateras 1983 3 All ER 129.
Therefore, in providing treatment, BPAS and others would be risking contempt and Scottish Courts would have jurisdiction to apply sanctions. On advice, treatment was suspended until the interdict was lifted when, faced with the week-long Whitsun break, Mr Kelly abandoned his House of Lords Appeal. This left Mrs Kelly and BPAS free to proceed.