Civil Contempt: Permission and Appropriate Forum
Types of case requiring permission
CPR 81.3(5) provides that permission to bring committal proceedings is only required in two types of cases:
- interference with the due administration of justice, except, in relation to existing High Court or County Court proceedings, and
- an allegation of knowingly making a false statement in any affidavit, affirmation or other document verified by a statement of truth or in a disclosure statement.
Permission and forum
| Court/type of proceedings | Permission determined by/forum/method | CPR |
|---|---|---|
| Contempt application re: knowingly making a false statement etc. relating to existing High Court proceedings | Single Judge of the High Court Division in which the case is proceeding.
Application by way of CPR 23. If permission is granted the contempt application shall be determined by a single Judge or the Divisional Court of that Division. |
CPR 81.3(7) CPR 81.3(1) CPR 81.3(7) |
| Contempt application re: knowingly making a false statement etc. but does not relate to existing High Court proceedings, but relates to existing criminal or County Court proceedings | Single Judge of the Queen’s Bench Division.
Application by way of CPR 23 (County Court proceedings). Application by way of CPR 8 (criminal proceedings). If permission is granted the contempt application shall be determined by a single judge of the Queen’s Bench Division or Divisional Court. |
CPR 81.3(8) CPR 81.3(1) CPR 81.3(1) CPR 81.3(8) |
| Contempt application re: knowingly making a false statement, etc. but does not relate to existing High Court proceedings, but relates to existing proceedings in the Civil Division of the Court of Appeal |
Single Judge of the Queen’s Bench Division.
If permission is granted the contempt application shall be determined by a single judge of the Queen’s Bench Division or Divisional Court. |
CPR 81.3(8) CPR 81.3(8) |
| Contempt application re: interference with the due administration of justice, etc. except in relation to existing High Court or County Court proceedings | Single Judge of the Queen’s Bench Division.
If permission is granted the contempt application shall be determined by a single judge of the Queen’s Bench Division or Divisional Court. Application by way of CPR 8. |
CPR 81.3(8) CPR 81.3(8) CPR 81.3(3) |
CPR 81 does not particularise how an application for permission is made in relation to knowingly making a false statement in existing Court of Appeal (Civil Division) proceedings. However, as the Court of Appeal has a wide discretion in how it manages proceedings, it is suggested that an application for permission or directions made directly to the Court of Appeal, would be the prudent course.
Note: Where a CPR 8 application is made in relation to alleged interference with the due administration of justice (otherwise in existing High Court or County Court proceedings), CPR 8 is modified by CPR 81.3(4) to suspend the requirement for the defendant to acknowledge service of the application under CPR 8.
Forum and method for cases not requiring permission
| Type of proceedings | Court/forum/method | CPR |
|---|---|---|
| Contempt application made in existing High Court proceedings | Application to the High Court, determined by a High Court judge of the Division in which the case is proceeding.
Application by way of CPR 23. |
CPR 81.3(2) CPR 81.3(1) |
| Contempt application made in existing County Court proceedings | Application to the County Court, determined by a Circuit Judge sitting in the County Court, unless under a rule or practice direction it may be determined by a District Judge.
Application by way of CPR 23. |
CPR 81.3(2) CPR 81.3(1) |
Application for permission to be included with the contempt application
If permission is needed, the application for permission must be included in the overarching contempt application (whether under CPR 23 or CPR 8 as applicable) and the matter will proceed to a full hearing only if permission is granted (CPR 81.3(6)).
Standard of proof when seeking permission
The standard of proof when seeking permission to bring committal proceedings is the need to show ‘a strong prima facie case’, among other considerations (Tinkler v Elliott [2014] EWCA Civ 564).
This contrasts with the standard of proof for contempt of court, which is to the criminal standard (Masri v Consolidated Contractors International Company [2011] EWHC 1024 (Comm)).
Contempt in relation to the interference with the administration of justice
Permission is required to make a contempt application in relation to interference with the due administration of justice when made not ‘in relation to existing High Court or County Court proceedings’ (CPR 81.3(5)(a)).
Where the interference with the due administration of justice takes place in existing High Court or County Court proceedings, permission is not required (CPR 81.3(5)(a)) and a committal application is made in the usual way.
Contempt in relation to the making of false statements
Permission is required to make a contempt application in relation to ‘an allegation of knowingly making a false statement in any affidavit, affirmation or other document verified by a statement of truth or in a disclosure statement’ (CPR 81.3(5)(b)).
The role of the Attorney General
Rules regarding the involvement of the Attorney General as in force pre-1 October 2020 are not replicated in CPR 81 in force with effect from 1 October 2020.
What is the procedure where more than one contempt is alleged?
There may be cases where you seek to bring committal proceedings against a defendant for more than one instance (or indeed form) of contempt.
CPR 81 in force post-1 October 2020 no longer deals with the situation regarding what to do where a practitioner is faced with circumstances where different types of contempt are alleged (as was the case pre-1 October 2020).
However, in Cole v Carpenter [2020] EWHC 3155 (Ch) the court considered that where an allegation of interference with the due administration of justice can also be legitimately labelled as knowingly making a false statement, irrespective of whether it relates to existing High Court or County Court proceedings, it is likely that permission will be required (Cole v Carpenter at para [23]). A similar issue was addressed in Deutsche Bank AG v Sebastian Holdings Inc [2020] EWHC 3536 (Comm) where a defendant’s failure to comply with a court order (provision of information under CPR 71) was asserted by reference to alleged untruths he told during cross examination, the court was content to proceed on the basis that the case was, indeed, a failure to comply with a court order.
Therefore where different types of contempt are alleged, and some would require permission, it is suggested that the most prudent approach would be to seek the court’s permission to make the contempt application in the appropriate court where permission should be sought, highlighting on the face of the permission application, which alleged contempts require permission and which don’t and requesting further directions in relation to those that do not require permission.
To proceed on this basis would be to comply with the spirit of the sentencing authorities of Villiers v Villiers [1994] 2 All ER 149 and Symes v Phillips [2005] EWCA Civ 533 which together suggest that any ‘live’ contempts of which the court is aware, should be dealt with on the same occasion.
For an example where this style of cautious litigation found favour with the court see Grosvenor Chemicals Ltd v UPL Europe Ltd [2017] EWHC 1893 (Ch)
Making and issuing the application for permission
The application for permission should be issued without delay. In Barnes v Seabrook [2010] EWHC 1849 (Admin), the court held that any delay in applying for permission after the making of a false statement (or it is suggested, the action or inaction which gives rise to the allegation of interference with the administration of justice) is discovered, will be a significant factor which the court will take into account when deciding whether to grant permission.
In Wakely v Conn [2015] EWHC 3277 (QB), the committal application was related to a false statement of truth in connection with proceedings in the County Court. However, the applicant (now ‘claimant’), incorrectly made the application for permission using a Part 23 application notice. The defendant did not object to this and as he had not been prejudiced by this procedural issue, permission was given for the application to be heard on the Part 23 application notice as an alternative to the Part 8 claim form.
In Grosvenor Chemicals v UPL Europe [2017] EWHC 1893 (Ch), a case litigated under the previous, more complicated regime in force pre-1 October 2020, the claimants sought permission to bring committal proceedings for alleged collateral use of disclosure documents in breach of a particular CPR. There was some discussion before the court as to whether the alleged contempt was breach of a solicitor’s undertaking or different breach and therefore, under the old regime, which procedure for seeking permission required to be followed. The judge agreed that the claimants had proceeded correctly in issuing a Part 8 claim form (under the pre-1 October 2020 regime) on the basis the alleged contempt was for breach of a court rule. The judge also took the view that it had not been necessary to obtain his permission prior to issuing the claim form (as well as once it had been issued) but had been persuaded by the claimants that the court office would not even issue the claim form in the absence of such permission.
The provisions of CPR 23.9 and CPR 23.10 (provisions relating to without notice applications) do not apply since the application cannot be made without notice, as the defendant must be notified of the matters as set out in CPR 81.4(2).
Serving the application
The claim form/application notice and above supporting documents must be served personally on the defendant unless the court otherwise directs.
These aspects of making and serving the committal application will be looked at in more detail in the next bulletin within the series – Making and Serving the Application.
Richard Shepherd
