Civil Contempt Proceedings: Non-Compliance with a Court Order or Undertaking
This week’s bulletin considers when proceedings for contempt of court under CPR 81 (also referred to as ‘committal proceedings’) may be brought for non-compliance with a court order or undertaking and the process to be adopted in bringing them, including the need for a penal notice on the order in question. It also considers bringing proceedings for contempt of court for breach of a court order or undertaking against a company or corporation.
Non-compliance with court orders
Breaching a court order is the most common cause for contempt proceedings. CPR 81 in force with effect from 1 October 2020 does not particularise breach of a court order as being one of the strands of committal applications because the amendments to CPR 81 with effect from 1 October have sought to simplify, and implement a near universal procedure. To allay any fears that breaches of court orders are not included, CPR 81.4(2)(a) (which deals with the requirements of what must be addressed in the committal application) states that the application must include ‘the nature of the alleged contempt (for example, breach of an order or undertaking or contempt in the face of the court)’.
Where a contempt application is brought or progressed post-1 October 2020 in relation to breach of a court order made prior to the coming into force of the new CPR 81 on 1 October 2020, the order will be read and considered in the light of the law as it stood at the time of the order (Secretary of State for Transport v Cuciurean  EWHC 2723 (Ch)).
There is a wealth of case law available giving examples of when, how and for what purpose committal proceedings are brought in the context of breach of a court order, which includes the following.
Requisite knowledge of court order and intention to breach
The court in Masri v Consolidated Contractors International Company  EWHC 1024 (Comm) stated that in order to establish that someone is in contempt it is necessary to show that:
- they knew of the terms of the order
- they acted (or failed to act) in a manner which involved a breach of the order, and
- they knew of the facts which made their conduct a breach (applying Marketmaker Technology v Obair Group International  EWHC 1445 (QB))
As to the third point in Masri, the court in GML International v Harfield  EWHC 2667 (QB) clarified that this is not concerned with whether the defendant knew that their conduct was a breach of the order; the intention is directed towards the act or omission, not its legal effect. As such, the intention of the defendant that is required to be proved is an intention to do the act or omit to do the act which is said to constitute a breach of the order.
Where the defendant is in breach of a court order, they will be fixed with constructive knowledge of the order where any provision for substituted service is complied with; the fact that they do not have actual knowledge is not relevant to the question of contempt—but will be relevant to the question of mitigation (Reynolds v Long; MacDonald v Long; Balderstone v Long  EWHC 3535 (Ch)). In Secretary of State for Transport v Cuciurean  EWHC 2614 (Ch) the court held that there was no requirement of knowledge of the order independent of the requirement that the order be served.
Where the meaning of the order is disputed, it is a matter for the court to interpret it, on normal principles of construction, and to determine whether the facts found or admitted amount to a breach of its terms. If a breach is found, it is no defence that the defendant genuinely misinterpreted the order or did not believe himself to be acting in breach or did not intend to breach the order, though it may be relevant to the issue whether any and if so what sanction is imposed (Nash v Lygren  EWHC 3088 (Ch)).
Inadvertent breach of an order or undertaking will not suffice, per Mr Justice Jay in Plant Health Care v Tech Bio  EWHC 1119 (QB), ‘there has to be a degree of culpability and knowledge of the order and of the basic facts which constitute the breach’ (para ).
In Price v Flitcraft  EWHC 2476 (Pat), the court noted, in relation to breach of various injunctions, that it must be shown that the defendant’s act or omission was done intentionally in the sense of deliberately rather than merely inadvertently. The court went on to clarify that an intention to breach the order is not necessary, provided that the act itself is deliberate rather than merely inadvertent, but the intention to breach the order or lack thereof is still relevant to penalty.
On the issue of whether or not the defendant intended to breach the order, the Court of Appeal decision in Pan Petroleum v Yinka  EWCA Civ 1525.
In relation to acts of civil disobedience and knowledge of court orders, see Secretary of State for Transport v Cuciurean  EWHC 2723 (Ch), where the Varma approach was adopted (see below).
A strict liability offence
It is not necessary to establish that the defendant intended to breach the order. Contempt of court is a strict liability offence and it is therefore no answer to say that there was no direct intention to disobey the order. Issues of motive or intent behind the actions of the defendant breaching the terms of the injunction are not relevant to this question of whether the defendant is in contempt. This was confirmed by the Court of Appeal in Varma v Atkinson  EWCA Civ 1602, which held that ‘once knowledge of the order is proved, and once it is proved that the contemnor knew that he was doing or omitting to do certain things, then it is not necessary for the contemnor to know that his actions put him in breach of the order; it is enough that as a matter of fact and law, they do so put him in breach’.
It should also be noted that Varma, categorically, disapproved the decision in Irtelli v Squatriti  QB 83 (another decision of the Court of Appeal) which suggested the opposite, and instead applied Director General of Fair Trading v Pioneer Concrete (UK) Ltd  1 AC 456.
Seriousness of the breach
The court in Discovery Land Company v Jirehouse  EWHC 2249 (Ch) affirmed that the claimant in a committal application based on the defendant’s failure to do an act needed to prove to the criminal standard that the defendant failed to do the act within the time set by the order, intended to fail to do the act, and had knowledge of all the facts which made the omission to do the act a breach of the order. However, the court rejected a contention that the breach (in this case of an undertaking to the court) had to pass a threshold of seriousness before contempt proceedings could be brought, other than in proceedings based on direct interference with the due administration of justice. The court also held there was an ‘important difference’ between cases where performance becomes impossible subsequently, and cases where performance is either impossible at the time the undertaking is given, or where the defendant is reckless as to whether performance is possible.
Breach of injunctions
A mandatory injunction is not enforceable by committal unless it specifies the time for compliance (Integral Petroleum v Petrogat  EWHC 558 (Comm) at para , quoting para  of In Re Jones  EWHC 2579 (Fam), a case in the family courts).
Also note the decision in Venables v News Group Newspapers  EWHC 241 (QB), in which the court noted that an injunction granted to protect the identities of two child murderers took effect ‘against the world’ such that anyone who knew of the injunction, despite not being served with it, and who acted contrary to its prohibition, would be guilty of contempt of court.
The court in Mohammad v Secretary of State for the Home Department  EWHC 240 (Admin) noted that breach of an injunction is a matter which can result in proceedings for contempt, even where the breach is by a Minister of the Government.
Extra-territorial effect of CPR 81
The Court of Appeal in Vik v Deutsche Bank  EWCA Civ 2011 confirmed that CPR 81 has extra-territorial effect and a party cannot therefore evade compliance with a committal order (in this case resulting from breach of a CPR 71 cross-examination) by simply leaving the jurisdiction.
It is no defence to an application for committal regarding breach of a court order for the defendant to say that the order ought not to have been made; the court order takes effect when it is made and remains binding unless and until it is revoked or appealed; for as long as the order is in effect, it is a contempt of court to breach it, whether or not the court was right to make it in the first place (Cuadrilla Bowland v Lawrie  EWCA Civ 9). However, if it transpires that the order should not have been made, this will be relevant to sentencing (Cuadrilla).
There is no defence of ‘reasonable excuse’ in contempt proceedings and, in particular, a breach of an order of the English court is not excused by the fact that compliance with it would or might constitute a breach of a foreign law (Dell Emerging Markets v Systems Equipment Telecommunications Services  EWHC 561 (Comm)).
Breach of a court order may be allowed if for the protection of another—see Sheffield City Council v Brooke  EWHC 1540 (QB).
Privilege against self-incrimination
While the privilege against self-incrimination is available to a defendant in committal proceedings a defendant cannot decline on self-incrimination grounds to answer questions which involve determining whether they have complied with orders which are the subject of the committal (Phillips v Symes  EWCA Civ 1769).
Making the committal application
An application ordinarily begins by filing an application notice under CPR 23, (though it is conceivable that a standalone application under CPR 8 could be required in particular circumstances) in the proceedings in which the relevant order, judgment or undertaking was given. The application must be pursued in compliance with CPR 81, particularly CPR 81.4(2)(a)–(s), which states, amongst other matters, that the application must include:
- in relation to breach of court orders:
- the date and terms of any order allegedly breached or disobeyed (CPR 81.4(2)(b))
- confirmation that any such order was personally served, and the date it was served, unless the court or the parties dispensed with personal service (CPR 81.4(2)(c)), and
- confirmation that any order allegedly breached or disobeyed included a penal notice (CPR 81.4(2)(e))
- in relation to breach of undertakings:
- the date and terms of the undertaking (CPR 81.4(2)(f)), and
- confirmation of the claimant’s belief that the person who gave the undertaking understood its terms and the consequences of failure to comply with it (CPR 81.4(2)(g))
A separate ‘permission hearing’ is not required.
While permission to issue contempt proceedings for breach of a court order is not required, where a defendant has sought and been given guidance from the court as to what will or will not be deemed a breach of an order, the court when giving guidance may also direct that any subsequent application by the claimant for committal proceedings for breach of that order will require permission of the court, as the court did in Vale v Steinmetz  EWHC 461 (Comm) in the context of a freezing order, where the defendant had sought guidance on whether specific transactions would or would not be treated as being ‘in the ordinary course of business’ in accordance with the wording of the freezing order.
Order must include a penal notice and must be personally served
CPR 81.4(2)(e) provides that a committal application must state that the order that is allegedly breached or disobeyed included a penal notice. CPR 81.2 defines a ‘penal notice’ as:
‘a prominent notice on the front of an order warning that if the person against whom the order is made (and, in the case of a corporate body, a director or officer of that body) disobeys the court’s order, the person (or director or officer) may be held in contempt of court and punished by a fine, imprisonment, confiscation of assets or other punishment under the law.’
The consultation: ‘Proposed rule changes relating to contempt of court: redraft of CPR Part 81’ commented on penal notices as follows:
‘There are differing forms of penal notice in existing Part 81, in Part 71 and at least one other in a guidance document. This definition [in CPR 81.2] is an amalgam covering as succinctly as possible all bases (prominence, corporate bodies and types of punishment).’
This explains the contrast with previous versions of a penal notice, which a practitioner may see in case law which pre-dates 1 October 2020.
Suggested wording for a penal notice to be included on a court order is:
‘if [the person against whom the order is made] (and, in the case of a corporate body, a director or officer of that body) disobeys this court order, the [named person] (or director or officer) may be held in contempt of court and punished by a fine, imprisonment, confiscation of assets or other punishment under the law.’
In relation to orders made prior to 1 October 2020 (and subject to a different version of CPR 81), but the subject of a committal application post-1 October 2020, it is highly likely that variation of this penal notice would be acceptable so long as the effect and warning is consistent with the objectives of such a penal notice.
Practical tip: for a belt and braces approach, it is also worth you drawing the effect of the penal notice to the attention of the proposed defendant in writing, prior to issuing the committal application. In so doing, it helps to protect the application against any procedural doubts, allowing a judge to waive particular requirements or proceed in the full knowledge that the defendant is aware of proceeding and the consequences (Companaia Sud Americana v Hin-Pro International  EWHC 987 (Comm)).
It is suggested that the spirit of authorities such as Companaia Sud Americana v Hin-Pro International still applies post-1 October 2020, that an individual needs to be aware of the consequences of a failure to comply and the court will be reluctant to enforce or grant a committal order if the court is not satisfied of this notice being effective.
At the time of drafting and serving the order, it will be less common for the order, as a matter of practice, to contain a penal notice (as is required for a committal application to proceed (CPR 81.4(2)(e)), unless there is a requirement to add a penal notice or evidence to suggest that the order will not be complied with. Therefore, where a party is making a committal application in respect of an order that did not include a penal notice, the order should be re-served (personally) with a penal notice applied and this will ensure that the party is aware of the potential detriments of non-compliance and therefore in line with the ethos of CPR 81. It would appear, though this is far from certain, that the court’s consent is not required to add a penal notice after the order has been sealed. The approach of adding a penal notice at a later stage once it becomes apparent that breaches have or might occur was suggested in Egeneonu v Egeneonu  EWHC 2336 (Fam) (note in the family law context but in relation to contempt). Of course, if a party considers (at the time of drafting and serving the order) that enforcement of the order by way of committal proceedings may be required, it may be appropriate to include a penal notice on the order and this would be suggested as a belt and braces approach.
Absence of a penal notice on the order will often be fatal to the application.
CPR 81.4(2)(c) provides that a committal application must state that the order that was breached was personally served, unless the court or the parties dispensed with personal service.
At the time of drafting and serving the order, unless required by the CPR, it will be less common for the order, as a matter of practice, to be personally served unless there is evidence to suggest that the order will not be complied with. Therefore, where a party is making a committal application in respect of an order that was not personally served, the party can either re-serve the order (personally), remembering to ensure that a penal notice is applied, or seek the court’s permission to waive the requirements in CPR 81.4 as is permitted by the words ‘unless and to the extent that the court directs otherwise’ in CPR 81.4(1).
Note that in ICBC v Erdenet Mining  EWHC 3135 (QB) the court held that CPR 81 constituted a separate regime governing contempt proceedings and that a committal application was a fresh application. Therefore, an order for substituted service in respect of the order on which the committal application was based (which had permitted service by an alternative method in respect of the order in question and ‘any further document required to be served on the respondent pursuant to this order or in relation to these proceedings’), could not be relied upon as satisfying the requirements of CPR 81 in respect of service of the committal application itself. However, having considered the circumstances, the court decided that it would be entirely artificial to say that the defendant ‘does not know what is going on’, and that it would be artificial to require a different mode or service. The court, therefore, dispensed with personal service of the committal application and of the previous order on which the committal application was based. Note that this case was decided pre-1 October 2020 but is presumably still good law since the provisions relating to personal service of the order that applied pre-1 October 2020 have been replicated in CPR 81 in force with effect from 1 October 2020.
Under CPR 81 in force pre-1 October 2020, the court had express powers to dispense with service in respect of an order requiring a person not to do an act where it was satisfied that the person had notice of the order by being present when it was made or by being notified of its terms by telephone, email or otherwise. The court also had express powers to dispense with service of any judgment or order if it thought it just to do so, or to make an order in respect of service by an alternative method or at an alternative place. Those provisions are not preserved in CPR 81 in force with effect from 1 October 2020, but it is submitted that, in reliance on ICBC v Erdenet Mining, the court may retrospectively dispense with service of the order, where it is clear that the order came to the attention of the defendant.
Note also that CPR 81.4(2)(d) provides that the committal application must, ‘if the court dispensed with personal service’, state ‘the terms and date of the court’s order dispensing with personal service’. It is not clear whether this is a reference to the court dispensing with personal service of the ‘breached’ order or the committal application itself, but it is presumed that it refers to the former, since CPR 81.4(2)(d) follows CPR 81.4(2)(c) (which deals with the order) and also service of the committal application itself is dealt with separately in CPR 81.5.
Of course, if a party considers (at the time of drafting and serving the order) that enforcement of the order by way of committal proceedings may be required, it may be appropriate to serve the order personally at the time.
In Secretary of State for Transport v Cuciurean  EWHC 2614 (Ch) the court stated that the question of effective service of an injunction must be addressed at the point at which the order is made, not when a contempt application for alleged breach is brought before the court. Where service by alternative means was ordered at the time of service of the injunction, a judge hearing the later application for contempt should be slow to second guess the judge who made the order (see para  of Cuciurean). However, service may still be set aside at the contempt stage if the defendant can show that the service provisions have operated against them unjustly (see paras  and  of Cuciurean).
Breach of an undertaking—abuse of process
Applications for committal for breach of an undertaking may be made in circumstances or with the intention of disrupting another party’s preparation of pursuance of litigation. The court in Sectorguard v Dienne  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 Brecher  EWHC 4057 (Ch), where permission was refused in a breach of 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 claimant.
Breach of a court order or undertaking by companies and corporations
Where a company or other corporation breaches the order or undertaking, a committal order can be made against the directors or other officer holders of that company or corporation (as evidenced by the definition of ‘penal notice’ in CPR 81.2 and the authorities set out below, which still remain good law, even if decided prior to the amendments to CPR 81 in force with effect from 1 October 2020, because of the effect of CPR 81.1 (CPR 81 has effect subject to the substantive law of contempt of court).
The requirements for a director’s liability in contempt under the CPR 81 in force prior to 1 October 2020 were set out in Attorney General for Tuvalu v Philatetic Distribution Corporation  2 All ER 216 which stated that ‘wilful’ default by the director needs to be demonstrated and mere inactivity is not sufficient. However, the director need not have actively participated in the breach of the order in order to be culpable; a failure to supervise those to whom a director has delegated responsibility can be regarded as sufficiently culpable. The court stated that the word ‘wilful’ is intended to distinguish the situation in which a director reasonably believes that some other director or officer is taking the reasonable steps required to ensure that the court’s order is obeyed. This does not mean a director is automatically regarded as acting wilfully unless they believe another director or officer to be taking action to comply with the order; rather, the question of wilfulness must be assessed on the facts as a whole (Dell Emerging Markets v Systems Equipment Telecommunications Services  EWHC 561 (Comm)). In finding breaches proved against two directors, the court in Nash v Lygren  EWHC 3088 (Ch) adopted the same approach, and the company and its directors were punished separately. The court in Taylor v Van Dutch Marine  EWHC 2201 (Ch) also noted that a ‘wilful failure on the part of a director to take reasonable steps to prevent the breach of an order gives rise to liability for contempt’.
Tuvalu was cited in Northamber v Genee World  EWHC 31 (Ch), in which the court stated that before a director can be made liable for the company’s contempt they must be aware of the terms of the order (which puts the director under a duty to take reasonable steps to ensure that the order is obeyed) and either aid or abet the company’s contempt or wilfully fail to take reasonable steps to ensure the company’s compliance. As consistent with other types of content there is no need to show intention on the part of the director to breach the order, but they must have acted deliberately in doing what they did or did not do.
In this situation, the order must have been served on the director as being ‘the person against whom the application is made’ under CPR 81.2 (Dell Emerging Markets v Systems Equipment Telecommunications Services  EWHC 561 (Comm)). Note that Dell was decided on the basis of a similar provision in CPR 81 in force prior to 1 October 2020.
CPR 81 also applies to a de facto director (Touton Far East v Shri Lal Mahal  EWHC 621 (Comm), Integral Petroleum v Petrogat  EWHC 2686 (Comm)—but not to partners or de facto partners (Trans-Oil International v Savoy Trading .
A director may be punished for contempt even if resident overseas (Nash v Lygren  EWHC 3088 (Ch)).
Where a person wilfully interferes with the administration of justice by permitting a company to act in contempt they may also be liable, even if not a director of the company (IFACO Feed Company v Societe De Distribution Nouvelle D’Afrique  EWHC 3715 (Comm)).
Practical tip: where you are seeking to bring contempt proceedings against directors of a company following breach of a court order and the directors were not named on the court order, the directors will need to be added to the court order (with penal notice) and the order served personally on the directors (unless the court dispenses with personal service).
That completes our tour of the four main areas of contempt. Next week we’ll look at County Courts Act offences and High Court certifications.