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April 13, 2021

Civil Contempt: Making and Serving the Application

When are contempt proceedings appropriate?

Prior to considering the procedural steps involved, it is critical that you give full consideration to whether or not it is appropriate to bring committal proceedings. The bringing of committal proceedings in circumstances where it is not appropriate to do so can result in significant costs consequences for your client. We looked at this earlier in the series in the Legal Framework bulletin.

When is permission required?

Some applications for committal proceedings first require you to obtain the court’s permission. In last week’s bulletin, Permission and Appropriate Forum, we detailed which types of contempt require permission, and which do not.

Note that if permission to make the application is needed, the application for permission needs to include the contempt application itself, which will proceed to a full hearing only if permission is granted (CPR 81.3(6)). The practitioner should be aware of the differing tests that apply as between permission and the contempt application itself.

Completing and issuing the contempt application

A contempt application made in existing High Court or County Court proceedings is made by an application under CPR 23 in those proceedings, whether or not the application is made against a party to those proceedings (CPR 81.3(1)).

A contempt application in relation to alleged interference with the due administration of justice, otherwise than in existing High Court or County Court proceedings, is made by an application to the High Court under CPR 8 (CPR 81.3(3)). In such cases, CPR 8 applies, except as modified by CPR 81, and the defendant is not required to acknowledge service of the application (CPR 81.3(4)).

Most committal applications are made by issuing an application under CPR 23, although for ‘standalone’ contempts, CPR 8 may be appropriate.

The application notice and/or written evidence given by affidavit or affirmation (CPR 81.4(1)) must include those matters set out at CPR 81.4(2)(a) to (s), unless ‘wholly inapplicable’ (which means that some may not apply). The list of matters to consider includes:

‘(a) the nature of the alleged contempt (for example, breach of an order or undertaking or contempt in the face of the court);
(b) the date and terms of any order allegedly breached or disobeyed;
(c) confirmation that any such order was personally served, and the date it was served, unless the court or the parties dispensed with personal service;
(d) if the court dispensed with personal service, the terms and date of the court’s order dispensing with personal service;
(e) confirmation that any order allegedly breached or disobeyed included a penal notice;
(f) the date and terms of any undertaking allegedly breached;
(g) confirmation of the claimant’s belief that the person who gave any undertaking understood its terms and the consequences of failure to comply with it;
(h) a brief summary of the facts alleged to constitute the contempt, set out numerically in chronological order;
(i) that the defendant has the right to be legally represented in the contempt proceedings;
(j) that the defendant is entitled to a reasonable opportunity to obtain legal representation and to apply for legal aid which may be available without any means test;
(k) that the defendant may be entitled to the services of an interpreter;
(l) that the defendant is entitled to a reasonable time to prepare for the hearing;
(m) that the defendant is entitled but not obliged to give written and oral evidence in their defence;
(n) that the defendant has the right to remain silent and to decline to answer any question the answer to which may incriminate the defendant;
(o) that the court may proceed in the defendant’s absence if they do not attend but (whether or not they attend) will only find the defendant in contempt if satisfied beyond reasonable doubt of the facts constituting contempt and that they do constitute contempt;
(p) that if the court is satisfied that the defendant has committed a contempt, the court may punish the defendant by a fine, imprisonment, confiscation of assets or other punishment under the law;
(q) that if the defendant admits the contempt and wishes to apologise to the court, that is likely to reduce the seriousness of any punishment by the court;
(r) that the court’s findings will be provided in writing as soon as practicable after the hearing; and
(s) that the court will sit in public, unless and to the extent that the court orders otherwise, and that its findings will be made public.’

Practical tip: this means that if you are considering bringing committal proceedings you must first ensure that the case is sufficiently distilled, and packaged under the individual (a) to (s) headings above, prior to submitting the application/grounds. Any documentation prepared should refer directly to CPR 81.4 and the claimant’s purported compliance with it, and it is further suggested that the documentation is ordered, using the headings (a) to (s). This will avoid any topic being inadvertently overlooked, and similarly will assist the court in navigating the claimant’s documentation by reference to the requirements of the CPR.

Where the contempt application is made pursuant to CPR 23 (but not pursuant to CPR 8) it can be made using Form N600, which highlights all the requirements of CPR 81.4(2).

Practical tip: where there are a number of alleged contempts, it may sensible to adopt a Scott-schedule type approach (as the claimant did in JTR v HNL [2015] EWHC 2298 (QB)) to present the specifics of the individual contempts complained of in a very clear, straightforward fashion. Whichever approach is adopted, the ultimate test is ‘would such a person, having regard to the background against which the committal application is launched, be in any doubt as to the substance of the breaches alleged?’ (Deutsche Bank AG v Sebastian Holdings Inc [2020] EWHC 3536 (Comm)). The application must also include a statement of truth (CPR PD 22, para 1.1(7)).

A court fee will need to be paid on making the application.

Compliance with a strict regime

Unless the court permits otherwise, the adherence to the requirements of CPR 81 is mandatory. Subject to the caveat included in CPR 81.4(1) that ’Unless and to the extent that the court directs otherwise’ all aspects of CPR 81.4 ‘must’ be complied with, ‘unless… wholly inapplicable’ (CPR 81.4(2)).

The flexibility that is available in other areas of law, or through other parts of the CPR (see, for example, CPR 32 or CPR 2.3 for instance) has little bearing on CPR 81 applications, other than where CPR 81 is silent on the issue.

The reason for this strict approach was addressed by the Court of Appeal in Makdessi v Cavendish Square Holdings [2013] EWCA Civ 1540 that:

‘Part 81 is a self-contained part of the Rules applying to the specific circumstance of an application for permission to commit, itself a quasi-criminal procedure, and must take precedence over the more general provisions of CPR 32.6. If CPR 81.14 requires more of the applicant than might otherwise be required, it must be complied with. CPR 81.14(1)(b) requires the exhibition of “all” documents relied on. “All” means all.’

Makdessi is an authority referencing the pre-1 October 2020 CPR 81 (note that CPR 81.14 no longer exists), but it is suggested that the spirit of Makdessi still applies, and to some extend may be further bolstered by compliance with CPR 81.4, which requires the application to be supported by written evidence covering a long list of matters set out at CPR 81.4(2) (a) to (s), unless the particular matter is ‘wholly inapplicable’. It is suggested that the use of the word ‘wholly’ before ‘inapplicable’ puts a claimant on notice that any of those matters, even if only slightly applicable, must be complied with.

Nevertheless, despite the strict regime, the court does have some discretion in allowing proceedings even where there have been breaches of the CPR. In Devere v Hither Green Developments [2015] EWCA Civ 1365, the court waived procedural defects and proceeded to hear the application because the defendant was aware of the proceedings and was aware of the court orders, and the procedural breaches did not cause any ‘injustice, prejudice or unfairness’. This flexibility is maintained in the post-1 October 2020 CPR 81 by the inclusion of the phrase ‘Unless and to the extent that the court directs otherwise…’ in CPR 81.4(1). However, the claimant in Devere may have been somewhat fortunate that the defendant ‘knew the ropes’, having previously served a sentence for similar behaviour in the same proceedings. As such, there was no ‘hint of unfairness and no possible prejudice’. This case should be viewed as the exception to the rule.

It is also likely that such flexibility will be exercised infrequently post-1 October 2020, since with effect from this date, CPR 81 is much simpler, and in the consultation: ‘Proposed rule changes relating to contempt of court: redraft of CPR Part 81’ (which resulted in the version of CPR 81 in force as of 1 October 2020), the following is stated in reference to CPR 81.4:

‘This rule is the cornerstone of the new draft Part 81. It is intended to stand as the guarantor of procedural fairness and incorporates the requirements of procedural fairness to the defendant. If the rule is complied with, procedural fairness is likely to be observed’.

Though the contrary position is not spelled out, if compliance is likely to equal procedural fairness, non-compliance may be said to be likely to equal procedural unfairness. With CPR 81 having been simplified post-1 October 2020, one may legitimately expect the courts to adopt an approach requiring very strict adherence to what is, now, a relatively straight forward set of rules.

In TBD (Owen Holland) v Simons [2020] EWHC 30 (Ch) at [83]-[85], the court revoked a previous decision granting permission to bring committal proceedings in respect of false statements, where the material on which the committal proceedings was based had been obtained improperly and in breach of a search order. This decision was upheld by the Court of Appeal—see TBD (Owen Holland) v Simons [2020] EWCA Civ 1182 at [241]-[253].

Later in this series, we’ll look at the court’s power to waive compliance with the procedural requirements for making a committal application.

Requirement for a penal notice on the application

CPR 81.4(2) set outs in detail what a contempt application must contain. There is no specific reference in CPR 81 (in force as of 1 October 2020) to there being a penal notice included on the application, though it would be prudent to add one. In any event, the requirements of CPR 81.4(2) contain all the components of the information that would be set out in a penal notice, and a failure to deal with all the requirements of CPR 81.4(2) will often be fatal to the application.

‘Penal notice’ is defined in CPR 81.2 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.’

Prior to 1 October 2020, Practice Direction 81, Annex 3 (now revoked) set out the wording of the penal notice to be included on the contempt application or claim form as follows:

The Court has power to send you to prison, to fine you and to seize your assets if it finds that any of the allegations made against you are true and amount to a contempt of court. You must attend court on the date shown on the front of this form. It is in your own interest to do so. You should bring with you any witnesses and documents which you think will help you put your side of the case. If you consider the allegations are not true you must tell the court why. If it is established that they are true, you must tell the court of any good reason why they do not amount to a contempt of court, or, if they do, why you should not be punished. If you need advice, you should show this document at once to your solicitor or go to a Citizens’ Advice Bureau or similar organisation.’

If a contempt application is made under CPR 23 using Form N600, the form provides the following warning:

‘If upon determination of this application you are held to be in contempt of court you may be imprisoned or fined, or your assets may be seized’

Where the contempt application is made otherwise than using Form N600 (including where it is made under CPR 8), it would be wise to include a penal notice along the lines of either of the above wording.

Note that where the contempt application is sought for breach of a court order, the court order itself must have included a penal notice (CPR 81.4(2)(e)).

Serving the contempt application on the defendant

Once issued in accordance with CPR 23 or CPR 8, the contempt application and supporting evidence must then be served personally on the defendant (CPR 81.5(1)). CPR 81.5(1) includes the caveat of ‘unless the court directs otherwise’, so allowing waiver of personal service where the defendant is being obstructive (as an example). The normal rules of CPR 6 should be followed in relation to service (CPR 81.5(1)).

Where a party is seeking to serve by alternative means, there is no special test when considering alternative service in the context of committal proceedings, and so the court will apply the test applicable to alternative service generally; however the fact that the application is being made in the context of a committal application will inevitably weigh with a judge considering such an application (Russian Commercial Bank (Cyprus) v Khoroshilov [2020] EWHC 1164 (Comm) at [93]).

One situation where alternative service may be required is where the defendant is a category of ‘persons unknown’. In such a situation, it may not be feasible to personally serve each person who falls into the group. In Cuciurean v Secretary of State for Transport & ors [2021] EWCA Civ 357, the court considered that service could be effected by displaying the terms of the court’s order in prominent positions around a prohibited site. See also Canada Goose Retail Ltd v Persons Unknown [2020] EWCA Civ 303.

For an example of where personal service of the contempt application was dispensed with (on a subsequent application when it became apparent that service would be difficult), see Zurich Insurance Plc v Barnicoat [2020] EWHC 3127 (QB). As per CPR 81.4(2)(d), if personal service has been dispensed with, this needs to be on the face of the order.

Serving the contempt application on legal representatives

CPR 81.5(2) also permits the claimant to serve the application and supporting evidence on the legal representative for the defendant, unless that legal representative objects in writing within seven days of receipt of the application.

If such an objection takes place, the matter is referred back to a judge of the court dealing with the application, and the judge will consider written representations from the parties and determine the issue (of service) on the papers, without an oral hearing (unless the judge directs otherwise) (CPR 81.5(2)(c)).

If the legal representative does not object, then they are obliged to provide a copy of the application and evidence to the defendant ‘at once’ and take all reasonable steps to ensure the defendant understands them (CPR 81.5(2)(b)).

For an example of the consequences where failure to serve personally was found to be a deliberate act and the consequences of that, see the decision in Sports Direct v Rangers International Football Club [2016] EWHC 85 (Ch).

Serving the contempt application outside the jurisdiction

Committal proceedings can be brought against defendants residing out of the jurisdiction and who committed the alleged contempt outside the jurisdiction. In Star Reefers v JFC Group [2012] EWHC 1803 (Comm), the court considered that de jure and de facto directors and officers of the defendant who lived abroad and committed the alleged breaches of the freezing order out of the jurisdiction were subject to RSC Order 45 (the pre-CPR 81 jurisdiction on committal proceedings).

Service outside of the jurisdiction is more than a mere formality. The courts expect strenuous efforts to be made in achieving effective service.

It may be the case that the court is prepared to waive, for instance, personal service where this has not been possible but a claimant must be able to establish proper efforts. Companaia Sud Americana De Vapores v Hin-Pro International Logistics Ltd [2013] EWHC 987 (Comm) is a good example as to the lengths that are appropriate in such cases.

Also see Dar Al Arkan Real Estate v Al Refai [2014] EWCA Civ 715, in which case the Court of Appeal granted permission to serve contempt proceedings on a non-party company director resident outside the jurisdiction, confirming that CPR 81 has extra-territorial reach. This case was decided under CPR 81 as it existed prior to 1 October 2020 but CPR 81.1(3) explicitly states that CPR 81 has effect subject to and to the extent that it is consistent with the substantive law of contempt of court, so there is no reason to suspect this case will not apply equally post-1 October 2020.

Service where there is no application or claim form

There are some circumstances where contempt proceedings are not instigated by way of application notice or claim form, such as where a contempt is committed in the face of the court. In these circumstances the court considers whether to proceed on its own initiative (CPR 81.6).

If the court adopts this approach, the court shall issue a summons to the defendant (N601), replicating the matters at CPR 81.4(2)(a)–(s) and requiring the defendant to attend court for directions to be given (CPR 81.6(3)). This summons shall be served on the defendant personally, unless the court directs otherwise (CPR 81.6(4)). If the defendant has a representative, the process at CPR 81.5(2) shall be followed by the court, unless the court directs otherwise (CPR 81.6(4)).

Richard Shepherd
Alex West