7/15 Civil Contempt Proceedings
Discontinuance, Defects, Waiver and Strike Out
This week’s bulletin considers the strict requirements that apply in proceedings for contempt of court under CPR 81 (also referred to as ‘committal proceedings’), and the court’s approach to dealing with procedural defects in contempt proceedings, including when the court may waive any non-compliance or when the court may strike out such proceedings as a result of non-compliance. It also considers when a party may be able to discontinue contempt proceedings, and the potential cost implications of doing so.
Compliance with a strict regime
As we set out in our previous bulletin on Making and Serving the Application, unless the court permits otherwise, the adherence to the requirements of CPR 81 in making these types of applications is mandatory.
The approach to be adopted should very much focus on ensuring that each individual part of CPR 81 is satisfied before lodging a contempt application. Though the courts do have some discretion in waiving particular requirements, in these types of proceedings, procedural irregularities should be avoided. Failure to do so can result in the court striking out the application.
Though there are exceptions, one of the fundamental requirements is for the defendant to have been made aware of the contempt proceedings and, by way of penal notice or otherwise, be aware of the potential consequences of the hearing.
When can the court waive compliance with CPR 81 requirements?
Throughout CPR 81 the obligations on the claimant and defendant are largely phrased as ‘must’ and ’shall’, indicating the level of compliance required and the strict regime to be applied. Nothing in this section should be read as challenging or undermining that headline feature.
Nevertheless, in limited circumstances the courts can and do waive compliance with the mandatory requirements, especially where a claimant can demonstrate ‘effective compliance’ or strenuous efforts to comply. For example, personal service on a defendant of unknown whereabouts, despite employing a private investigator to discover their whereabouts, should not act as a bar to bringing contempt proceedings.
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 v Barnicoat [2020] EWHC 3127 (QB). However it should be noted that rather than this being a defect to be waived, this was an application to the court for alternative service. It is suggested that it is far better to ask for permission rather than to seek to waive retrospectively. This approach would ensure, so far as is possible, that the overarching ‘fairness’ to a defendant is preserved, as exemplified by CPR 81.4(2)(d), where if personal service has been dispensed with, this needs to be on the face of the order.
However, as a general statutory intent, CPR 81 was replaced in its entirety with effect from 1 October 2020, and the primary reason for the redrafting of CPR 81 was the simplification of the rules so as to avoid the need for the courts to excuse or waive ‘technical breaches’ because the former rules were so complicated. It is therefore suggested that the practitioner should expect even narrower latitude from the courts, even for minor breaches. In the third bulletin in this mini-series we outlined some of the differences between the pre and post 1 October 2020 CPR 81 landscape.
There are however a limited number of provisions within CPR 81 where the court has the express power to waive compliance with certain steps which are otherwise required to be complied with. For instance, under CPR 81.4, which deals with the specific matters which must be addressed in a contempt application, CPR 81.4(1) caveats the obligation with ‘unless and to the extent the court directs otherwise…’. A similar caveat is included at CPR 81.5(1), in relation to service of contempt applications, though to a large extent, the requirements of CPR 6 now apply to service.
Practical tip: despite this apparent flexibility, a practitioner should endeavour to comply with all requirements. Contempt of court cases are littered with failed applications caused by breaches of the procedural requirements. Post-Mitchell v Newsgroup Newspapers Ltd [2013] EWCA Civ 1537 and Denton v White [2014] EWCA Civ 906 in particular, compliance (or not) with the CPR has gained a prominent position in the courts’ decision-making processes, and even where no identifiable prejudice can be identified, the court may still strike out the application for non-compliance. Kagalovsky v Turevych [2014] EWHC 2697 (QB) is a helpful reference case where strict adherence was underlined.
Practical tip: if applying to proceed despite technical breaches, you should focus on identifying (with supporting evidence):
- efforts made to comply
- instances where the defendant has sought to frustrate compliance
- why prejudice has not been caused
The post-Mitchell position should be contrasted with the authorities below. The pre-Mitchell position can be best summed up from the case of Bell v Tuohy [2002] EWCA Civ 423, in which the court stated:
‘It is always a cause for concern if there are any technical or procedural defects in a contempt application…However…The proper approach is to consider each of the defects relied on…and to describe whether they caused any prejudice or unfairness to him either separately or together.’
Also see the Court of Appeal decision of Benson v Richards [2002] EWCA Civ 1402, in which the Court, applying Davy International v Tazzyman [1997] 1 WLR 1256, referred to the court’s ‘unfettered’ discretion to dispense with service requirements.
This pre-Mitchell approach follows a long line of case law, see, for example, the decisions in Nicholls v Nicholls [1997] 2 All ER 97 and Jolly v Jolly [2000] All ER (D) 49. Whether these authorities will continue to have the influence they once had is a matter for debate.
There is little merit in listing a wide variety of cases where procedural defects have been waived or excused. The theme from all of the authorities is the question of whether the waiver causes injustice to the defendant. By way of example, see the pre-1 October 2020 decision of Super-Max Offshore Holdings Ltd v Malhotra [2020] EWHC 1023 (Comm), in which the court agreed to waive certain procedural defects.
A good deal of the pre-1 October 2020 authorities in relation to waiver concerned the tricky issue of personal service, a requirement under the pre-1 October 2020 CPR 81. Cases such as Hither Green Developments v DeVere [2015] EWCA Civ 1365 illustrate the difficulties neatly. As such, CPR 81.5 (in force as of 1 October 2020) provides for service on the legal representative of a defendant, if particular requirements are met.
Note also in relation to personal service, the decision in ICBC v Erdenet Mining [2017] EWHC 3135 (QB), in which 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 of service. The court, therefore, dispensed with personal service of the committal application and of the previous order on which the committal application was based. 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.
Defects and injustice
Injustice (however it may be described) is the central consideration when a court is deciding whether to waive a contempt-type CPR requirement.
If the defendant can point to any real injustice, or in the case of non-attendance by the defendant, where the court can identify such an injustice, the breach of the procedural requirement causing that injustice is unlikely to be waived.
Practical tip: where you are representing a defendant and procedural defects can be identified, efforts should focus on attaching identifiable prejudice(s) to the individual procedural breaches, thereafter the post-Mitchell gloss can be used to supplement any argument, especially in light of the simplification of the rules in the redrafting of CPR 81 with effect from 1 October 2020.
The grounds for strike out
CPR 81 (as in force with effect from 1 October 2020) does not deal with the strike out of an application for committal. However, prior to 1 October 2020 this was dealt with in Practice Direction 81, para 16.1 (now revoked), which was based on pre-existing case law.
On the basis that CPR 81.1 confirms that CPR 81 ‘does not alter the scope and extent of the jurisdiction of courts determining contempt proceedings, whether inherent, statutory or at common law’ and that it ‘has effect subject to and to the extent that it is consistent with the substantive law of contempt of court’, it is suggested that a practitioner can safely rely on the list of grounds for strike out as set out in Practice Direction 81, para 16.1, as it was in force prior to 1 October 2020, and also by reference to the other parts of the CPR which also deal with strike out more generally.
In Taylor v Robinson [2021] EWHC 664 (Ch) the court confirmed that, at least in the context of an abuse of process, the court’s power to strike out an application is an inherent power notwithstanding the lack of express reference to it in the CPR.
The now revoked Practice Direction 81, para 16.1 sets out four grounds for striking out committal proceedings:
- the application/evidence does not disclose reasonable grounds for alleging the contempt
- there has been a failure to comply with the prescribed requirements
- the application is an abuse of process, or
- the application will interfere with the administration of justice (usually in associated proceedings)
Those broad headings encapsulate or incorporate many of the individual grounds for strike out found in other parts of the CPR.
As with all CPR strike out applications, this should not amount to a trial of the merits (Accident Exchange v Broom [2015] EWHC 2205 (Admin), Swain v Hillman [2001] 1 ALL ER 91).
The court may strike out a committal application on:
- application by the defendant (CPR 3.4), or
- its own initiative (CPR 3.3)
For a useful summary of what must be proved for an application to strike out to be successful, see Super Max Offshore Holdings v Malhotra [2019] EWHC 2711 (Comm) at paras [7]–[16].
Strike out for abuse of process
The courts are particularly vigilant and therefore ready to strike out committal applications that seem to be seeking to achieve an illegitimate aim (Sectorguard plc v Dienne [2009] EWHC 2693 (Ch)). The court in Sectorguard said:
‘In my judgment the court should, in the exercise of its case management powers be astute to detect cases in which contempt proceedings are not being pursued for those legitimate ends… Committal proceedings of that type are properly to be regarded as an abuse of process, and the court should lose no time in putting an end to them…’
In City of Westminster v Addbins [2012] EWHC 3716 (QB) the court stated the position as:
‘The power to commit has been described as the courts’ ultimate weapon in securing compliance with its orders…it follows that such applications must only be made for a proper purpose and that applications which are made for an illegitimate purpose or are pointless will be struck out.’
It is not only in cases where the contempt application has allegedly been brought for an improper purpose that it can be appropriate to strike out a committal application in advance of trial. The power to strike out a committal application as an abuse of process includes the power to do so by reference to the Henderson v Henderson principle (Taylor v Robinson [2021] EWHC 664 (Ch)). The abuse in such a case consists of bringing a second or subsequent contempt application when the matters relied upon should properly have been advanced in an earlier application.
When can you discontinue committal proceedings?
As will be appreciated, because contempt proceedings often have at their heart a coercive intent, circumstances may change so as to cause a claimant to want to discontinue the contempt action.
CPR 81 does not deal with discontinuance of the committal proceedings (in comparison to the pre-1 October procedure, which contained guidance in the now revoked Practice Direction 81 which provided that a claimant would need the court’s permission to discontinue a committal application). Nevertheless, CPR 38 deals with discontinuance generally.
Contrary to the previous position under the now-revoked Practice Direction 81, for the most part, CPR 38 is explicit that a claimant does not require the court’s permission to discontinue ‘all or part of a claim’ (CPR 38.2(1)), save for two specific circumstances set out in CPR 38.2(2):
- the court has granted an interim injunction, and/or
- any party has given an undertaking to the court
It is, at least, conceivable that a contempt application and subsequent litigation may involve (a) and/or (b) above and in such circumstances the rules at CPR 38.2.(2)(a) apply and permission must be sought.
As an example of where a claimant may choose/seek permission to discontinue a claim, see the pre-1 October 2020 authority of Gloucestershire CC v Newman [2014] EWHC 3399 (Fam), where the claimant council brought two sets of contempt proceedings covering different allegations spanning different periods of time. The council was successful in its first application and the coercive effect was to secure compliance with court orders. As a result, the court allowed the claimant to discontinue the second set of proceedings.
Discontinuance and costs
If a claimant seeks to discontinue, they must be mindful of CPR 38.6, which states in essence that the claimant who discontinues a case is liable for the defendant’s costs, unless otherwise ordered by the court.
However, even when a claimant abandons contempt proceedings, they may still be entitled to some or all of their costs. In Beechcroft v TG Estate Management [2015] (Ch D) (Judgment date 30/10/2015) for instance, after attempting other ways of securing compliance, contempt proceedings were issued. The application achieved this goal. Proceedings were discontinued, costs were applied for as against the defendants. The court ordered 50% of the claimant’s costs to be paid, assessed on the indemnity basis, despite the claimant not being ‘successful’ in the proceedings.
A similar approach was adopted in Variable Message Signs v Entrusted Group [2014] EWHC 4760 (QB) where the defendant accepted his wrongdoing in the days shortly before the committal application was due to be heard.
A similar example, though not strictly relating to discontinuance but rather an unsuccessful contempt application because it was ‘premature and disproportionate’, can be found in Cole v Carpenter [2020] EWHC 3244 (Ch). In this case the unsuccessful applicant was not ordered to pay all of the successful parties’ costs, because although the application was premature, they had, nevertheless, proved a strong prima facie case for contempt. Costs were, in effect, left for the main trial.
A more nuanced approach was adopted in Kagalovsky v Turevych [2014] EWHC 2697 (QB) where the court undertook a costs assessment based upon when findings of contempt were made versus when proceedings were discontinued. The eventual order was that the defendant would pay the costs of the claimant up to the findings made, thereafter the claimant would pay the defendant’s costs.
In next week’s bulletin we’ll start to look at the different types of contempt of court, beginning with contempt in the face of the court.
Richard Shepherd
Alex West
