Lexis Nexis E-Bulletin Series: Contempt Proceedings and Contempt of Court – Part 1

1/12 Nuts and Bolts

 

This e-bulletin is part of a series covering contempt of court in all its forms and the series is designed to be relevant to all practice areas. Richard Shepherd has been commissioned by Lexis Nexis to draft their Professional Practice Notes on the subject. Albion Chambers is delighted that we have been granted permission by Lexis Nexis to share these guides with our instructing solicitors and professional clients before they have been published online. The next e-bulletins in the series will be published every Tuesday morning.

Generally

This e-bulletin seeks to examine and explain the necessary ingredients, formalities and hurdles that must be observed when pursuing committal applications for contempt or writs of sequestration. It does not seek to explain or explore the individual ‘types’ of contempt or writs of sequestration, separate e-bulletins to be published in the coming weeks will address the particularities of each. This bulletin strives to give an overview of the issues that apply to most.

Foundations

CPR Part 81 governs committal proceedings alongside the accompanying practice direction PD 8.1. As applications for committal for contempt or breaches of writs of sequestration can result in imprisonment or other draconian sanctions, specific regard must be had to Art 6 ECHR.

The accompanying practice direction PD 81, para 5.7 explicitly states that the CPR does not amend the pre-existing law in relation to contempt. Therefore the pre-existing body of case law that pre-dates the implementation of the CPR still applies.

A Last Resort?

As set out in Sectorguard plc v Dienne plc [2009] EWHC 2693 (Ch) in considering a committal application, or giving permission to pursue a contempt/writ of sequestration the courts always give careful consideration as to whether:

• the application is proportionate, or the continuation of the proceedings is proportionate;
• options that fall short of a committal application may be appropriate;
• the application is being pursued for legitimate aims, rather than as a device.

 

There are many examples of cases where applications for committal have been brought due to an alleged breach of a court order, often relating to the disposal of assets or disclosure of material, but have ultimately been unsuccessful. The most common reason is that although a breach of an order has been established (sometimes referred to as a technical breach), the alleged contemnor did not have the requisite intent, or the breach was insufficiently serious to meet the ‘proportionate’ test for the finding of a contempt. This approach, in essence, refers back to the three considerations set out above.

As an example, in Public Joint Stock Company Vseukrainskyi Aktsionernyi Bank v Maksimov [2014] EWHC 4370 an overly aggressive applicant was ordered to pay the respondent’s costs, even though technical breaches were established against the respondent.

Legitimate Aims, Legitimate Means and Abuse of Process

One can easily appreciate how committal applications could be used to bully and cajole an opposing party in litigation.

Where a question arises as to whether an individual who seeks to pursue a committal application is doing so for proper reasons, the courts can be reassured that the application can be legitimately pursued or permission granted, despite that concern, on the proviso that the applicant instructs competent solicitors and counsel to conduct proceedings as per JTR v HNL [2015] EWHC 2298 (QB).

Conversely, where the court finds that the application was;

“… a tactical move in order to disrupt the Respondents’ preparation for and continuance of that hearing.”

the court will have no trouble in finding the application to be an abuse of process, see Simon and Simon v Breacher & others [2015] EWHC 4057 (CH). In the case of Simon this tactical application was met with a costs order of over £100,000.

The disapproval shown by the courts as to ‘tactical’ applications is further underlined by Sectorguard. Briggs J stated as follows;

“Committal proceedings are an appropriate way, albeit as a last resort, of seeking to obtain the compliance by a party with the court’s order (including undertakings contained in orders), and they are also an appropriate means of bringing to the court’s attention serious rather than technical, still less involuntary, breaches of them. In my judgment the court should, in the exercise of its case management powers, be astute to detect cases in which contempt proceedings are not being pursued for those legitimate ends… Committal proceedings of that type are properly to be regarded as an abuse of process, and the court should lose no time in putting an end to them, so that the parties may concentrate their time and resources on the resolution of the underlying dispute between them.“

Quasi-Criminal Proceedings

One of the potential outcomes of a committal application is an immediate custodial sentence. As a result, the standard of proof in such cases is always the criminal standard (Masri v CCC [2011] EWHC Comm at [144]).

This should be compared with the standard of proof when seeking permission to bring committal proceedings (to be dealt with in other e-bulletins), the standard being ‘a strong prima facie case’, amongst other considerations.

The onus remains on the applicant throughout to establish the contempt; the alleged contemnor need not prove their innocence.

Entitlement to Legal Aid

Irrespective of whether the proceedings are in the civil or criminal courts an alleged contemnor is entitled to legal aid to defend proceedings, see Brown v London Borough of Haringey [2015] EWCA Civ 483.

In a post-script in Brown the court stated;

“I would encourage the LAA, the Courts Service, the judiciary, the professions and the voluntary organisations (that assist litigants) to co-operate in ensuring at an early stage in committal proceedings that all concerned are aware of the authority to which legal aid applications in such cases are to be made and what the entitlements are.”

Though this passage is probably not binding, this statement has resulted in the current practise that a contemnor should be informed of their right to legal aid prior to the committal hearing. An applicant would no doubt wish to put this in correspondence, drawing specific attention to it, to avoid unnecessary delays or technicalities being raised later on. As an aside, Brown also gives a good overview of the procedural avenues leading to being able to secure legal aid, depending on the nature of the proceedings.

It should be noted that the ‘entitlement’ to legal aid and/or legal representation is not absolute. The court has a degree of discretion, which it uses sparingly, in proceeding with matters despite a respondent’s inability to secure legal representation for the hearing. This is very much the exception rather than the rule.

The Right to Silence

In line with the general approach in criminal proceedings, as per Inplayer Ltd (formerly Invideous Ltd) v Thorogood [2014] EWCA Civ 1511 the alleged contemnor is also entitled to remain silent.

In the same vein there is no mechanism within the committal regime for an applicant to seek, secure or force the disclosure of any further information from the alleged contemnor.  The CPR Part 18 regime does not apply. This is consistent with proceedings being quasi-criminal in nature, particularly the right against self incrimination and the right to silence (see above).

However, the right to silence does not prevent adverse inferences from being drawn against an alleged contemnor in circumstances where the case against them is sufficiently strong to call for an answer (among other conditions that fall outside the scope of this e-bulletin). For completeness see also Khawaja v Popat and Popat [2016] EWCA Civ 362

As per JSC BTA Bank v Mukhtar Ablyazov [2012] EWHC 237 (Comm) where a committal is based on circumstantial evidence and inferences to be drawn from that evidence the court should take special care to countenance other conclusions or inferences that may be inconsistent with a finding of contempt.

 

Next week’s e-bulletin will focus on making the application and conducting proceedings.