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April 19, 2021

Evidence and the Heaing

This bulletin considers the hearing of contempt proceedings under CPR 81 (also referred to as ‘committal proceedings’), including whether the court will sit in public or in private, what directions the court will make in advance of the hearing, the timing of the hearing and the evidence that will be presented at the hearing. In respect of the defendant it looks at what happens if the defendant is absent at the hearing, the defendant’s right to silence, and the defendant’s entitlement to legal aid, legal representation and/or an interpreter. It also considers the impact of the coronavirus (COVID-19) pandemic on the hearing.

Coronavirus (COVID-19)

The guidance detailing normal practice set out in this Practice Note may be affected by measures concerning process and procedure in the civil courts that have been introduced as a result of the coronavirus (COVID-19) pandemic. In particular, note the following:

  • attending hearings:
    • remote hearings—physical hearings are being avoided and remote hearings arranged where possible in accordance with a remote hearing protocol published by the Courts and Tribunals Judiciary which applies in the County Court, High Court, and Court of Appeal (Civil Division), including the Business and Property Courts. The remote hearing protocol was published on 20 March 2020 and updated on 26 March 2020.
  • court closures—if you need to physically attend court for a hearing or to use the counter services, check if the court is open or whether any special procedures are in place.
  • civil court listing priorities:
    • High Court work is being conducted according to the High Court Contingency Plan. This means that urgent business will be given priority, although non-urgent business will continue to be dealt with as far as possible.

County Court—HMCTS has published an update of civil court listing priorities for County Court work during the coronavirus pandemic. The update gives a list of hearings which are ‘priority 1—work that must be done’ (which includes committals) and ‘other work which should be done’. These priorities were introduced on 31 March 2020, and are updated regularly by HMCTS in its operational summary, which is being published during the coronavirus outbreak.

Hearing to be in public

The English judicial system operates on a first principle of open justice, from which there are, on occasion, permitted derogations.
CPR 81.8(1) provides that:

‘all hearings of contempt proceedings shall, irrespective of the parties’ consent, be listed and heard in public unless the court otherwise directs.’

This mirrors the provisions set out in CPR 39.2, which states that the ‘general rule is that a hearing is to be in public’.

This is especially important for contempt of court proceedings. As stated in EWQ v GFD [2013] EWHC 3231 (QB) at para 16, ‘In contempt cases [the safeguards in CPR 39.2] in my judgment, should be scrutinised with even greater care and rigour than in the case of proceedings generally in view of the criminal or quasi-criminal nature of contempt applications’. Though pre-dating the 1 October 2020 rule changes, nevertheless, EWQ was cited in Fulham Football Club v Kline [2020] EWHC 2907 (on which see further below).

Prior to 1 October 2020 (when CPR 81 was amended) the principle for dealing with contempt applications in public was contained in Practice Direction: Committal for Contempt of Court—Open Court—March 2015. The principles set out in the Practice Direction are contained in CPR 81 (with effect from 1 October 2020) and the Practice Direction has been dispensed with so far as contempt proceedings are concerned, so the practitioner need not reference the Practice Direction and associated documentation that had previously performed the same function. Nevertheless, for completeness, this is referenced below:

‘3. Open justice is a fundamental principle. The general rule is that hearings are carried out in, and judgments and orders are made in, public. This rule applies to all hearings, whether on application or otherwise, for committal for contempt irrespective of the court in which they are heard or of the proceedings in which they arise.
4. Derogations from the general principle can only be justified in exceptional circumstances, when they are strictly necessary as measures to secure the proper administration of justice. Derogations shall, where justified, be no more than strictly necessary to achieve their purpose.’

CPR 81.8(3)–(5) provides that where a court is considering hearing an application in private, the court must:

  • notify the national print and broadcast media, via the Press Association’s CopyDirect service
  • consider submissions from the parties and/or the media before deciding whether and if so to what extent the hearing should be in private, and
  • if the court sits in private, give a reasoned public judgment on the point

As an example of where the court did decide to sit in private, see JTR v HNL [2015] EWHC 2298 (QB), which concerned a witness telling lies in a witness statement. That witness statement related to successful privacy proceedings preventing the disclosure of information about a person’s sexual activities. The committal application hearing was heard in private and the subsequent judgment anonymised, as to do otherwise would frustrate the purposes of the original privacy case.

In Fulham Football Club v Kline [2020] EWHC 2907 (Comm), the court adopted the approach set out at CPR 81.8(3)–(5) as above, though the media did not appear interested in the hearing. It is a good authority for providing an overview of the public vs private issue in contempt proceedings. In this particular case the court determined that the case should be in private as the court ‘was satisfied that holding it in public would defeat the very object of [the hearing]’. The primary thrust of the case was that the defendant had made various assertions that were detrimental to the football club and that to continue to do so would be in breach of existing court orders. In short, to air would be to err. The court also referenced CPR 39.2 in coming to its conclusion, though this would appear to be otiose where CPR 81.8 applies.

At the conclusion of the committal hearing, whether or not held in private, the court must sit in public, giving a reasoned judgment stating its findings and any punishment (CPR 81.8(6)), but where the hearing has been held in private the court may endeavour not to state matters in the public judgment which would undermine the object of the private hearing (as in Fulham Football Club v Kline EWHC 3170 (Comm)).

The contempt application must state that the court will sit in public, unless otherwise ordered, and that the court’s findings will be made public (CPR 81.4(2)(s)).

Whether or not the court sits in public, all advocates and the judge must be robed in all hearings of contempt proceedings (CPR 81.8(2)).

Directions and evidence for the hearing

The standard of proof for contempt of court is to the criminal standard and the onus remains on the claimant throughout to establish the contempt; the defendant need not prove their innocence (Masri v Consolidated Contractors International Company [2011] EWHC 1024 (Comm)).

Practical tip: although committal applications can be brought solely ‘on the papers/affidavits provided’ (since CPR 81.7 provides flexibility for the court in making directions for the hearing), due to the nature of the proceedings and the criminal standard of proof, a court would ordinarily expect the writers of the affidavits or statements to attend and if required, be cross-examined (Sports Direct International v Rangers International Football Club [2016] EWHC 85 (Ch)). This is in line with CPR 81.7(1) (in force after the Sports Direct decision), which states that the court ‘shall give such directions as it thinks fit for the hearing and determination of contempt proceedings, including directions for the attendance of witnesses and oral evidence, as it considers appropriate‘.

The defendant’s evidence

Whereas the claimant’s case must be supported by written evidence given by affidavit or affirmation (CPR 81.4(1)), a greater evidential latitude is given to the defendant. By virtue of CPR 81.4(2)(m) the defendant is ‘entitled but not obliged to give written and oral evidence in their defence’ and no qualification is given. However, it is suggested that to ensure fairness to both sides a competent court will exercise its discretion under CPR 81.7 to make directions regarding the form and timing of service if such written evidence is to be relied upon. It would not be in line with the overriding objective in CPR 1.1 to allow a claimant to be ambushed by a defence, even in contempt of court proceedings.

However, in practice, a defendant’s failure to comply with any such directions is unlikely to prevent the defendant from giving evidence and being cross-examined on it. Similarly, the court may, under its CPR 81.7 latitude, give permission for a witness called by the defendant to give evidence, notwithstanding that an affidavit or affirmed statement has not been served previously.

This apparent leniency no doubt stems from the potential sanction for a finding of contempt.

This leniency must be balanced with an effective administration of justice. As an example, in ABC v DEF [2014] EWHC 3346 (QB), the defendant argued there should be a delay in hearing the committal application to allow time for the claimant’s witnesses to attend court and be cross-examined. The court, in denying the request, pointed out that the (pre-1 October 2020) CPR 81 did not oblige a witness to attend in support of their affidavit. As above, by reference to CPR 81.7(1), that same flexibility is given to the judge. In ABC the court suspected the defendant’s indication that the witnesses would be required for cross-examination was a tactic to delay matters. It must be accepted that ABC does not sit altogether comfortably with the dicta in Sports Direct International v Rangers International Football Club [2016] EWHC 85 (Ch) that the claimant’s witnesses should usually attend to be available for cross-examination.

The burden of proof remains on the claimant throughout. However, that does not equate to a claimant being required to search for a defence. Only if a defence is properly raised by the defendant does a claimant need to prove it to be unfounded (Perkier Foods v Halo Foods [2019] EWHC 3462 (QB)). The criminal standard of proof applies throughout.

Listing of the hearing and the need to allow sufficient time

Generally, a defendant must have sufficient details of the allegations of contempt in order to be able to properly respond to them (as set out in CPR 81.4(2)). By complying carefully with the rules relating to making the application, in particular CPR 81.4(2), this should not cause any difficulty. See the decision in the Sports Direct case, referenced above, for an example of a case where insufficient clarity was provided.

CPR 81.4(2)(l) provides that the application and evidence must include a statement that the defendant is entitled to a reasonable amount of time to prepare for the hearing (and this is stated in the N600 contempt application). Though no specific time frame is given, prior to 1 October 2020, the CPR specified that the hearing must not be listed less than 14 days after the service of the claim form or application notice, and this would still appear to be reasonable in light of CPR 81.4(2)(l).

As an illustrative example, in James v James [2018] EWCA Civ 1982 (a pre-1 October 2020 decision), the Court of Appeal considered that two days was not sufficient time for the defendant to seek advice, especially as she was already in prison at the time. Though the post 1 October 2020 rules are silent on this (they having been simplified) it would still appear to be good practice to communicate the hearing date, clearly and prominently, either on the claim form or indeed in a covering letter.

Deciding when to hear a committal application may also be a difficult decision. There are, of course, the tactical considerations where the claimant believes they have caught the defendant in a lie on the face of the documents. In addition, however, the court will have regard to the effect the committal hearing may have on the main trial, see Ablyazov v JSC BTA Bank [2011] EWCA Civ 1386, and Dar Al Arkan Real Estate & Anor v Al Refai & Ors [2014] EWHC 1055 (Comm).

In Dar Al Arkan Real Estate, the court focussed in particular on whether any new evidence would/may be adduced in the main trial that would inform the committal hearing and also whether the alleged contempt was particularly clear. A common sense approach should be adopted. If the contempt can be ring-fenced and litigated without having a detrimental impact on the main trial it may be anticipated that the court would accede to a hearing, before the substantive trial.

Proceeding with a contempt hearing in the defendant’s absence

Whether in a criminal trial, or quasi-criminal proceedings such as committals for contempt, there is no absolute right for a defendant to attend their trial and the court can proceed in the defendant’s absence (CPR 81.4(2)(o)).

As part of the application for committal a claimant must include the fact that the court may proceed in the defendant’s absence if they do not attend (CPR 81.4(2)(o)).

In Sanchez v Oboz and Oboz [2015] EWHC 235 (Fam), sometimes referred to as S v O, the court set out a nine-point checklist to assist other courts in determining whether to proceed in the absence of the defendant. These can be paraphrased as follows:

  • whether the defendant has been served with all of the documentation, importantly including the notice of the hearing
  • whether the defendant has had sufficient notice to enable them to prepare for the hearing
  • whether any reason has been provided for their non-attendance
  • whether explicitly or by inference the defendant has waived their right to attend
  • the effectiveness of an adjournment in securing their attendance
  • an assessment of the detriment on the defendant in their not being able to present their evidence
  • what prejudice would be caused to the claimant by a delay
  • whether the evidence would suffer or be degraded by a delay
  • the overriding objective

It should be noted that this checklist was devised in relation to family proceedings and therefore the ‘overriding’ objective point should be treated with a little caution. However, the overriding objectives of family proceedings and the Civil Procedure Rules are broadly similar and therefore, there is no reason to suspect that this checklist would not apply equally in non-family cases.

The Sanchez checklist was also applied in Taylor v Van Dutch Marine Holdings Ltd [2016] EWHC 2201 (Ch) and the music licensing case of Phonographic Performance v Nightclub [2016] EWHC 892 (Ch) where an application for committal and writ of sequestration was made. The court in Phonographic, following an earlier authority of JSC BTA v Solodchenko [2011] EWHC 1613 (Ch), made it crystal clear that proceeding in absence should be very much the exception.

In Her Majesty’s Solicitor General v Hamilton-Toogood [2020] EWHC 3193 (QB) the court considered the Sanchez checklist in a permission hearing and proceeded with the hearing in the defendant’s absence, noting that while this was ‘a significant step in the process, it is important to note that the question for the court today is not whether a contempt has in fact been committed but rather whether proceedings should be brought to establish whether it has or not and that the defendant would have the opportunity to appear, and with legal representation if she chooses, at the full hearing, if one is ordered’.
The court may also issue a bench warrant (N602) in order to assist in securing the defendant’s attendance at court (CPR 81.7(2)).

The defendant’s right to silence

In line with the general approach in criminal proceedings, as per Inplayer v Thorogood [2014] EWCA Civ 1511, the defendant is entitled to remain silent and it is particularly important to warn unrepresented litigants of this; the right to silence is a core element and a failure to warn will not be considered to be a purely technical breach (Andreewitch v Moutreuil [2020] EWCA Civ 382. In addition, see CPR 81.4(2)(m) and (n), which together indicate that a defendant is entitled to adduce written evidence and/or oral evidence, but cannot be compelled to do so, and CPR 81.7(3), which confirms that the ’court may not give any direction compelling the defendant to give evidence either orally or in writing’.

Though CPR 81 (as in force post-1 October 2020) is silent on the issue, in line with pre-existing case law, it will also be considered a procedural error for a committal application to be heard at the same time as other issues about which the defendant needs to give evidence, as they will be placed in a position where they are effectively deprived of the right of silence (Hammerton v Hammerton [2007] EWCA Civ 248).

In the same vein, there is no mechanism within the committal regime for the claimant to seek, secure or force the disclosure of any further information from the defendant. The requests for further information regime under CPR 18 does not apply since a defendant cannot be forced to give evidence and has the right to remain silent and to decline any questions which may incriminate them (CPR 81.4(2)(m) and (n)). This is consistent with committal proceedings being quasi-criminal in nature, such that the privilege against self-incrimination and right to silence is available even though they are not criminal proceedings (section 14 of the Civil Evidence Act 1968 and Cobra Golf v Rata [1997] 2 All ER 150, Wisniewski v Central Manchester Health Authority [1998] Lexis Citation 18). However, 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; if this was not the case, it would make enforcement of orders of the court impossible (Phillips v Symes [2003] EWCA Civ 1769).

As an example of a case where despite a defendant’s right to silence the court found it permissible to use a defendant’s draft affidavit to tailor the claimant’s application and/or undertake case management, even if the defendant later chose not to deploy the evidence in the draft affidavit, see Deutsche Bank AG v Sebastian Holdings [2020] EWHC 3536 (Comm), in particular the analysis at paras 52 and 53, 165 to 171.

However, the right to silence does not prevent adverse inferences from being drawn against the defendant in circumstances where the case against them is sufficiently strong to call for an answer (among other conditions that fall outside the scope of this bulletin). This was considered in Khawaja v Popat [2016] EWCA Civ 362. Adverse inferences can also be drawn from the absence of evidence from witnesses other than the defendant, who could have produced some explanation in rebuttal of the claimant’s case (Super-Max Offshore Holdings v Malhotra [2020] EWHC 1023 (Comm) at [9]).

Where a committal is based on circumstantial evidence and inferences to be drawn from that evidence, the court should take special care to countenance other conclusions or inferences that may be inconsistent with a finding of contempt (JSC BTA Bank v Ablyazov [2012] EWHC 237 (Comm)).

The defendant’s entitlement to legal aid and/or legal representation and alternative funding

Irrespective of whether the proceedings are in the civil or criminal courts, the defendant is entitled to legal aid to defend proceedings (Brown v London Borough of Haringey [2015] EWCA Civ 483) and the court will have regard to the need for the defendant to be made aware of the possible availability of legal aid.
In a post-script in Brown, the court stated:

‘I would encourage the LAA, the Courts Service, the judiciary, the professions and the voluntary organisations (that assist litigants) to co-operate in ensuring at an early stage in committal proceedings that all concerned are aware of the authority to which legal aid applications in such cases are to be made and what the entitlements are.’

CPR 81.4(2)(i) and (j) (which came into force after Brown) now stipulate that all committal applications ‘must’ include the fact that the defendant is entitled to be legally represented and is entitled to a reasonable opportunity to obtain legal representation and to apply for legal aid.

Brown also gives a good overview of the procedural avenues leading to being able to secure legal aid, depending on the nature of the proceedings.

Practical tip: when acting for the claimant, you should also put these entitlements in correspondence to the defendant (in addition to the ‘must do’ in the application), drawing specific attention to them, thus avoiding unnecessary delays or technicalities being raised later on. If the defendant continues without legal representation despite your and the court’s suggestion that they consider obtaining legal aid and/or legal representation, this will assist you in defending any subsequent challenge to the court having proceeded without it (as happened in Corrigan v Chelsea Football Club [2019] EWCA Civ 1964).

Legal aid is available ‘as of right’ to a defendant facing an application in the High Court or County Court to commit them to prison for non-criminal non-’face of the court’ contempt; the ‘relevant authority’ for granting such legal aid, and therefore the body to whom any application should be made by the defendant, is the Director of Legal Aid Casework, whereas in the Court of Appeal the court itself is the ‘relevant authority’ (All England Lawn Tennis Club v McKay [2019] EWHC 2973 (QB) and [2019] EWHC 3065 (QB).

It should be noted that the ‘entitlement’ to legal aid and/or legal representation is not absolute. The court has a degree of discretion, which it uses sparingly, in proceeding with matters despite the defendant’s inability to secure legal representation for the hearing. This is, however, very much the exception rather than the rule.

Corrigan confirmed that, while a defendant is entitled to legal aid and legal representation and should be given an opportunity to obtain it, if it is clear from the facts that the defendant does not want legal representation, then the court is entitled to proceed with the application with the defendant being unrepresented. Though the authority pre-dates 1 October 2020, it is consistent with the post-1 October 2020 CPR 81, particularly CPR 81.4(2)(j), which refers to the defendant being afforded a ‘reasonable opportunity’ to obtain legal representation and legal aid.

In Re O (committal: legal representation) [2019] EWCA Civ 1721, the Court of Appeal upheld an appeal against a committal order for a procedural error arising from the first instance court’s failure to secure representation for the defendant at the hearing at which the committal order was made, in circumstances where the defendant had the benefit of legal aid and legal representation but was without representation at this particular hearing. This was despite the fact, as the court acknowledged, that a committal order may have been a likely outcome, even had the defendant been legally represented. The Court of Appeal stated that the judge should have taken further steps to resolve the lack of representation, such as by making a representation order himself or by adjourning the matter.

Alternative funding

In North of England Coachworks v Khan [2020] EWHC 1972 (QB), one of the defendants applied to vary a freezing order, to allow them to sell assets in order to fund his defence in the contempt litigation. The court in considering the application applied the case of Serious Fraud Office v X [2005] EWCA Civ 1564, which in effect puts a burden on an applicant to prove that he has no other assets available which could be used to pay for legal advice and representation. This is known as the ‘burden of persuasion’. In Khan, the applicant failed to do so. In rejecting the application the court also made direct reference to the availability of legal aid for committal proceedings.

Use of an interpreter

CPR 81.4(2)(k) provides that the defendant may be entitled to the services of an interpreter.
Richard Shepherd
Alex West