Lexis Nexis E-Bulletin Series: Contempt Proceedings and Contempt of Court – Part 8

Committal Proceedings and Contempt of Court

8/12 Non-compliance with a Court Order or Solicitor’s Undertaking

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 covers the circumstances where committal applications are brought for non-compliance with court orders or a solicitor’s undertaking and the process to be adopted in bringing them.

This e-bulletin should be read in conjunction with the ‘Nuts and Bolts’ e-bulletin, giving a general overview of these types of proceedings.

Non-Compliance with Court Orders

Breaching a court order is the most common cause for contempt proceedings (or for that matter, writs of sequestration) being initiated. There is a wealth of case law available giving examples of when, how and for what purpose committal proceedings are brought.

An application ordinarily begins by filing an application notice under CPR 23 in the proceedings in which the relevant order, judgment or undertaking was given. The application must be pursued in compliance with CPR Part 81 alongside the accompanying practice direction PD 81. A separate ‘permission hearing’ is not required.

The application form must include:

• The full grounds on which the application is based, and

• Identify “separately and numerically” each allegation and date of each alleged incident, if known.

and any evidence must be adduced by affidavit and filed with the court.

The requirements of CPR 81 are to be interpreted strictly, though some discretion remains (see the previously published e-bulletin “Discontinuance, Defects and Strike Outs” for further information).

The stepped approach suggested in the e-bulletin “Nuts and Bolts” is an efficient way of ensuring compliance with the above regime whether permission is required or not.

Penal Notices

The application/claim form must include the penal notice as set out at CPR PD 81 para 13. The importance of the penal notice is explained in the e-bulletin “Nuts and Bolts”. An absence of a penal notice will often be fatal to the application.

Committal for Breach of a Solicitor’s Undertaking

As per CPR 81.11(1) an applicant must obtain the permission of the court to pursue committal for breach of a solicitor’s undertaking, the application for permission is by filing a Part 23 application.

Supporting Documentation

CPR 81.11(3) stipulates that the application for permission must be supported by affidavit which sets out:

• the name, description and address of the respondent; and

• the grounds on which the committal order is sought.

Notice Periods and Lapsed Timescales

Somewhat unusually, the application may be made without notice.

However, once permission has been granted, strict time-limits apply, committal proceedings must be instigated with 14 days, otherwise the permission will lapse.

Abuse of Process

Applications of this sort can be made in certain circumstances or with the intention of disrupting another party’s preparation of pursuance of litigation. As per the e-bulletin “Nuts and Bolts” the court in Sectorguard plc v Dienne plc [2009] EWHC 2693 (Ch) observed that courts should:

“be astute to detect cases in which contempt proceedings are not being pursued for… legitimate ends…”.

In the case of Simon and Simon v Breacher and others [2015] EWHC 4057 (CH), where permission was refused in a solicitor’s undertaking case, the court found that the application:

“…[was] a tactical move in order to disrupt the Respondents’ preparation for and continuance of that hearing.” A significant costs order was made against the applicant.

Next week’s bulletin will examine Contempt in the Face of the Court.

Richard Shepherd