3/15 Civil Contempt: Summary of the Changes in CPR 81
Background and consultation
With effect from 1 October 2020, there is a completely redrafted CPR 81, and Practice Direction 81 is revoked in its entirety with regard to proceedings for contempt of court.
In consultation: ‘Proposed rule changes relating to contempt of court: redraft of CPR Part 81’, which ran from 9 March 2020 to 1 May 2020, the Civil Procedure Rule Committee stated that in its view the procedural aspects of the existing CPR in relation to committal proceedings were:
‘causing frequent difficulties and that the subcommittee should look at ways of simplifying, shortening and strengthening the procedural rules to make them operate more fairly and reduce the number of cases where procedural unfairness is found.’
The CPRC described the pre-1 October 2020 rules as:
‘segmented, long, complicated and repetitive. It replicates substantive law as well as dealing with procedure. The procedural content is then largely repeated in a Practice Direction (PD), supplemented by a further PD and Practice Guidance (PG) from the Lord Chief Justice. CPR PD4 prescribes no less than 27 prescribed Forms for use in contempt proceedings… The existing Part 81 is not easy to operate in the present litigation environment.’
The committee’s objectives in the consultation were stated as follows:
‘In a redrafted Part 81, we propose a new approach which
(a) omits nearly all the substantive law
(b) deals with procedure in rules not PDs
(c) creates a uniform procedural code for use in all contempt proceedings where the CPR apply
(d) sets out the applicable requirements in rules rather than in PDs or Practice Guidance and
(e) reduces the number of prescribed forms.’
New rules and scope
The CPR 81 in force with effect from 1 October 2020 is slimmed down from 38 rules to 10 rules. Not all of the old rules are reproduced, or even directly referenced, within the new rules.
The 2015 Practice Direction (as supplemented by the Practice Guidance) from the Lord Chief Justice, as referred to in the consultation document, no longer applies to proceedings for contempt of court to which CPR 81 applies.
No transitional provisions were provided in the Civil Procedure (Amendment No 3) Rules 2020, SI 2020/747 or the 122nd Practice Direction update and so contempt proceedings commenced prior to 1 October 2020 will continue in accordance with the procedure set out in CPR 81 in force with effect from 1 October 2020. This was confirmed in the High Court decision of Secretary of State for Transport v Cuciurean  EWHC 2723 (Ch), with the court noting that the lack of transitionary provisions made the decision a little difficult. In this case, the contempt application was made and heard pre-1 October 2020, but the liability judgment was handed down and the sentencing hearing took place post 1 October 2020.
The court held that formal steps taken in the application prior to 1 October 2020 would be governed by the old rules but steps taken post this date would be governed by the new rules. In relation to the latter, the court however stated at the sentencing hearing that, to the extent that there was a mismatch or difference between the old and the new rules, the court would apply the rules that were most beneficial to the defendant, i.e., if there was a relaxation in terms of sanction in the new rules, the court would apply the new rules, but if the old rules were more beneficial to the defendant, the court failed to see why the defendant should be disadvantaged by the fact that the timing of the judgment on liability and sentencing was after 1 October 2020. However note the obiter comments in Her Majesty’s Solicitor General v Hamilton-Toogood  EWHC 3193 (QB) at  and  to the effect that the new rules do not apply to extant applications issued before 1 October 2020.
Pre-1 October 2020 case law
Much of the contemporary appellate case law has been generated by procedural irregularities and how they should be treated by the courts. This body of case law is very much focussed on the technicalities of the pre-1 October 2020 version of CPR 81 and Practice Direction 81, and it is tentatively suggested that a practitioner may find little assistance in relying on ‘old’ CPR case law dealing with technicalities, under the new regime.
However, CPR 81.1 makes it clear that the existing case law in relation to substantive issues remains unaffected and further, that CPR 81 should be read to be consistent with existing substantive case law:
‘CPR 81.1 – Scope
(1) This Part sets out the procedure to be followed in proceedings for contempt of court (“contempt proceedings”).
(2) This Part does not alter the scope and extent of the jurisdiction of courts determining contempt proceedings, whether inherent, statutory or at common law.
(3) This Part has effect subject to and to the extent that it is consistent with the substantive law of contempt of court.’ (emphasis added)
As a result, CPR 81 (as in force with effect from 1 October 2020) should be viewed as a tidying-up exercise, rather than a change in approach. However, the real difficulty for the practitioner, when relying on pre-1 October 2020 CPR case law, is untangling the substantive from the procedural, especially when principles of fairness are in issue.
Roadmap to CPR 81
|Subject Matter||New CPR|
|How to made a contempt application||81.3|
|Requirements of a contempt application?||81.4|
|Service of a contempt application||81.5|
|Cases where no application is made||81.6|
|Directions for hearing of contempt proceedings||81.7|
|Hearings and judgments in contempt proceedings||81.8|
|Powers of the court in contempt proceedings||81.9|
|Applications to discharge committal orders||81.10|
The sometimes archaic and often inconsistent terminology of the pre-1 October CPR 81 and Practice Direction 81 has been replaced.
Now, the person making an application for contempt is called the claimant and the person who is accused of contempt is called the defendant. The accused person is also called a defendant when the committal proceedings are instigated by the court, rather than by a claimant.
So when interpreting pre-1 October 2020 case law, for applicant—read claimant, for respondent or contemnor or proposed contemnor—read defendant.
Court dress and public hearings
Though it may appear to be a minor point, this change may catch-out the unwary.
With effect from 1 October 2020, irrespective of the court in front of which the advocate appears, it is now a requirement for all advocates to be robed (CPR 81.8(2)). This clarification underlines the importance with which the senior judiciary views contempt of court and committal proceedings in relation to the administration of justice.
Further, following a number of authorities and practice guidance issued in recent years, CPR 81 makes it clear that all hearings should be in public, unless an alternative order is made (CPR 81.8(1)).
Comparison of pre and post 1 October 2020 CPR provisions
|Subject Matter||CPR from 1 October 2020||CPR pre-1 October 2020||PD 81 pre-1 October 2020|
|Scope of the part||CPR 81.1||CPR 81.2, 81.2|
|Interpretation||CPR 81.2||CPR 81.3,
CPR 81.4 (3),
|Paras 1, 2, 6|
|How to make a contempt application||CPR 81.3||CPR 81.4(6),
|Paras 10, 11, 12, 13|
|Requirements of a contempt application||CPR 81.4||CPR 81.6,
|Paras 1, 2, 6, 14|
|Service of a contempt application||CPR 81.5||CPR 81.5|
|Cases where no application is made||CPR 81.6||CPR 81.16|
|Directions for hearing of contempt proceedings||CPR 81.7||CPR 81.28||Para 15|
|Hearings and judgments in contempt proceedings||CPR 81.8||CPR 81.28|
|Powers of the court in contempt proceedings||CPR 81.9||CPR 81.20,
|Applications to discharge committal orders||CPR 81.10||CPR 81.31,
‘Old’ provisions no replicated in the new CPR 81
|CPR 81.4||(except limited sections as provided above)— Enforcement of judgment, order or undertaking to do or abstain from doing an act|
|CPR 81.8||Dispensation with personal service—except as provided in ‘new’ CPR 81.4(2)(c) and (d)|
|CPR 81.11||Committal for breach of a solicitor’s undertaking|
|CPR 81.15 and Practice Direction 81, para 3||Certifications of conduct, and applications under section 336 of the Charities Act 2011, to the High Court under this Section|
|CPR 81.26||How to make an application for permission to issue a writ of sequestration [however note ‘confiscation of assets’ at CPR 81.2, 81.4(p) and 81.9(1)]|
|CPR 81.27||Form of writ of sequestration [however note ‘confiscation of assets’ at CPR 81.2, 81.4(2)(p) and CPR 81.9(1)]|
|CPR 81.33 to CPR 81.38||Penal, contempt and disciplinary provisions under the County Courts Act 1984|
|Practice Direction 81, para 4||Contempt in the face of court—except brief mention of ‘contempt in the face of court’ in CPR 81.6(1)|
|Practice Direction 81, para 5||Committal application in relation to a false statement of truth or disclosure statement—request to Attorney General|
|Practice Direction 81, para 7||Writ of sequestration: levying execution on certain days [however note ‘confiscation of assets’ at CPR 81.2, 81.4(2)(p) and 81.9(1)]|
|Practice Direction 81, para 8||General rules|
|Practice Direction 81, para 9||Striking out, procedural defects and discontinuance|
Forms to be used with effect from 1 October 2020
|N601||Summons under rule 81.6(3)|
|N602||Warrant to secure attendance at court under rule 81.7(2)|
|N603||Order under rule 81.9|
|N604||Warrant of committal under rule 81.9|
In the next bulletin in this series we’ll look at the permission aspect of committal applications, contained within CPR 81.3