Committal Proceedings and Contempt of Court
12/12 Appeals, Purges and Discharges
This e-bulletin is part of a series covering contempt of court in all its forms and the series is designed to be relevant to all practice areas. Richard Shepherd has been commissioned by Lexis Nexis to draft their Professional Practice Notes on the subject. Albion Chambers is delighted that we have been granted permission by Lexis Nexis to share these guides with our instructing solicitors and professional clients before they have been published online.
This final e-bulletin in the series examines the law surrounding appeals, both for the claimant and respondent alongside the process by which an individual’s contempt can be purged (in old fashioned terminology) or discharged (in modern terminology).
In line with Baho v Meerza  EWCA Civ 669 a respondent/contemnor has an absolute right of appeal against being committed to prison for contempt.
CPR 52.3 provides as follows:
“(1) An appellant or respondent requires permission to appeal –
(a) where the appeal is from a decision of a judge in the County Court or the High Court, except where the appeal is against –
(i) a committal order;”
On the face of it the passage would seem non-contentious. However, largely due to the commercial world’s international perspective, many court orders are routinely disobeyed by those outside of the jurisdiction and contempt proceedings follow. If the result of those proceedings is committal and the contemnor remains abroad, CPR 52.3 allows the contemnor to challenge that order via an appeal without ever being at risk of the prison sentence. This only applies to the contemnor because the exception to the requirement for permission is ring-fenced to an appeal “against a committal order”.
The Court of Appeal took exception to this state of affairs in Thursfield v Thursfield  EWCA Civ 840, describing the situation as ‘deplorable’. Nevertheless, until legislative change, a contemnor has the right to appeal.
However, as per Barnet London Borough Council v Hurst  4 AER 457:
“It is therefore clear that for the purposes of the CPR appellate regime a distinction has to be drawn between an order by which a party is committed to prison (for which permission to appeal is not required) and any other order or decision made by a court in the exercise of jurisdiction to punish for contempt.”
So, in short, permission is required for all matters except if the appeal is against being committed to prison.
Strict Time Limits (Applicant and Contemnor)
In accordance with CPR 52.4 and 5, a party has 21 days in which to lodge an appeal unless otherwise stated by the court. A respondent must provide a respondent’s notice within 14 days of receipt of the appellant’s notice unless otherwise directed.
Following the well publicised (non-contempt) case of Mitchell v News Group Newspapers Ltd  EWCA Civ 1537, the courts now interpret the requirements of the CPR far more strictly, this includes time limits.
This strict adherence to the rules has filtered through the appeals against committals for contempt and writs of sequestration. In Boho, the court observed the effect of Mitchell and that unless a breach is trivial it is for the appellant to persuade the court to grant relief. In this case the appeal was only seven days late and an extension was refused.
A good example of the approach the court should adopt can be found in the High Court authority of Kagalowsky v Balmore Invest Ltd and others  EWHC 108 (QB). The court made it clear that time limits are to be strictly applied, and the absence of prejudice to the opposing party is not the trump card it once was.
Appeals Against Sentence/Committal for Contempt
Generally speaking the Court of Appeal disapproves of the practice whereby a party references a range of authorities that purport to demonstrate that the sentence was too long (or too short).
In Thursfield the court dealt with it in this way:
“[counsel for the appellant] referred in his skeleton argument, by way of contrast, to a wide variety of other cases… I derive no assistance from any of them and I deprecate the citation of cases which are really said to be precedents or guidance on the facts. Each case, particularly of committal, depends on its own facts…”
This reticence towards such an approach was also underlined in Longhurst Homes Ltd v Killen  EWCA Civ 402, which deals with sentencing generally in contempt case (see e-bulletin “Sentencing”).
Where an applicant wishes to appeal against a sentence on the basis that the sentence was too short, there is little firm guidance as to how the court should assess ‘too short’. In Wood v Collins  EWCA Civ 743 the court suggested as follows:
“in exercising its power to increase a sentence of imprisonment for civil contempt, the Court of Appeal acts on similar principles as the criminal division when dealing with an application to increase a sentence on an Attorney General’s reference, pursuant to section 36 of the Criminal Justice Act 1988”
The test specified under s.36 is one of ‘undue leniency’. Undue leniency is further defined by Attorney General’s Reference No 4 of 1989 11 Cr. App. R. (S) 517 as:
“…where it falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate.”.
It must be highlighted however that the court in Wood was not tasked with defining the test nor did it receive argument as to the correct test to be applied. As a result, in relation to this aspect, Wood should be treated with a degree of caution.
Applicant’s Appeal and Relevant Jurisdiction
As per CPR 52.3 and Barnett an applicant requires permission to appeal against the terms of the order made, against a decision to purge or discharge a contempt (see below), or where the sentence imposed is said to be insufficient in the circumstances.
It has been suggested by some commentators that s.13 of the Administration of Justice Act 1960 in some way curtails the jurisdiction of the court to hear an applicant’s appeal. The suggestion is based on the absence of reference to the applicant in ss.2. S.13 states as follows:
“(2) An appeal under this section shall lie in any case at the instance of the defendant and, in the case of an application for committal or attachment, at the instance of the applicant…”
In Attorney General v Hislop  1 All ER 911 the court interpreted s.13 as follows:
“It appears to me that the opening paragraph of s 13(2) merely refers to the original application. If that application was for committal or attachment, as it was in the present case, the unsuccessful applicant has in my judgment a clear right of appeal…”.
Hislop confirms the court’s jurisdiction to hear an applicant’s appeal, the authority of Poole Borough Council v Hambridge  EWCA Civ 990 makes it clear that an applicant must seek permission first.
Purging or Discharging a Contempt – Procedural Requirements
An individual is entitled to apply to discharge (formerly known as purge) her contempt, in essence applying for release from prison. CPR 81.31 also dictates the correct court to which the application must be made, depending on which court committed the contemnor.
In every case where a purge is being considered a practitioner should consult CPR 81.31 to ensure that the application is being made to the correct court.
“Rule 81.31(2) provides that an application to discharge a person in custody must –
(i) be in writing and attested by the governor of the prison (or any other officer of the prison not below the rank of principal officer);
(ii) show that the person committed to prison for contempt has purged, or wishes to purge, the contempt; and
(iii) be served on the person (if any) at whose instance the warrant of committal was issued at least one day before the application is made.”
Note, CPR 81.31(2) does not apply in cases involving failures by a debtor in relation to maintenance orders or in relation to judgment summonses under CCR Ord 28, r4. These matters fall outside of the general jurisdiction of contempt.
Therefore, assuming the application does not fall within these exceptions, an application for a discharge must pass through the narrow gateway of the prison system.
That said, there is nothing in the CPR that would appear to prevent the court making an order of its own motion, subject to the guidance in Webb (dealt with below). In addition, where the court proposes to make an order of its own initiative, CPR 3.3(3) provides that:
“[the court] must give each party likely to be affected by the order at least 3 days’ notice of the hearing”.
In Swindon Borough Council v Webb t/a Protective Coating  EWCA Civ 152 the manner in which the contemnor returned to court was shrouded in mystery but, what was clear, he did not return to court in compliance with CPR 81.31, nor did the court exercise its power in compliance with CPR 3.3. The Court of Appeal dealt with it as follows:
“Whilst I hesitate to be prescriptive in a matter where the liberty of the subject is at stake, and where the circumstances are likely to be infinitely various, what has happened in this case demonstrates the wisdom of ordinarily insisting in cases of this sort that the procedure provided by CPR 81.31 is followed where a contemnor seeks his discharge.”
If an individual is committed for contempt and is sentenced to imprisonment, a practitioner may wish to consider having a copy of Webb placed on the judge’s papers to assist in future hearings, in the event a purge application is made.
Purging or Discharging a Contempt – The Relevant Test
As per Wood (above) the test for appealing a sentence or the making of a committal order has been seen as analogous to the test of ‘undue leniency’. In Poole Borough Council v Hambridge  EWCA Civ 990 the Court of Appeal had mixed views about whether the same test applied to discharges of contempt, Pill LJ and Buxton LJ expressly reserving their position as to the correct test to be applied for a case where it may be determinative.
CJ v Flintshire Borough Council  EWCA Civ393 (an authority on a contemnor’s appeal against the lower court’s refusal to discharge the contempt), Wilson LJ, after undertaking a review of previous case law sets out “eight, somewhat overlapping, questions”:
Can the court conclude, in all the circumstances as they now are, that the contemnor has suffered punishment proportionate to his contempt?
Would the interest of the State in upholding the rule of law be significantly prejudiced by early discharge?
How genuine is the contemnor’s expression of contrition?
Has he done all that he reasonably can to demonstrate a resolve and an ability not to commit a further breach if discharged early?
In particular has he done all that he reasonably can (bearing in mind the difficulties of his so doing while in prison) in order to construct for himself proposed living and other practical arrangements in the event of early discharge in such a way as to minimise the risk of his committing a further breach?
Does he make any specific proposal to augment the protection against any further breach of those whom the order which he breached was designed to protect?
What is the length of time which he has served in prison, including its relation to (a) the full term imposed upon him and (b) the term which he will otherwise be required to serve prior to release pursuant to s.258(2) of the Criminal Justice Act 2003?
Are there any special factors which impinge upon the exercise of the discretion in one way or the other?
The court in Webb, (reflecting on the judgments in Flintshire and Poole, expressing caution about the applicability of the undue leniency test to discharges of contempt) came to the conclusion that the test was not analogous. A discharge of contempt very much depends on the change of attitude of the contemnor, reflecting both the punitive and coercive objectives of contempt proceedings. That is not to say that once the coercive element has been satisfied this will necessarily lead to a successful discharge application, see Smith v Doncaster MBC  EWCA Civ 16.
This approach has also crept into appeals, where the dividing line between an appeal and an application to discharge is not always clearly defined; see Wokingham Borough Council v Dunn  EWCA Civ 633. In Wokingham, on appeal, a committal to prison for contempt was set aside, and fines substituted due to the contemnors accepting responsibility for the breaches, apologising for them and the belated compliance with the terms of the injunction. All very much features of the eight-point list of features set out in Flintshire.
Purging or Discharging a Contempt – Crocodile Tears
The first four questions posed by Flintshire (above) relate to contrition, in one form or another.
In Webb, where the contemnor was brought to court and led through an apology, the Court of Appeal commented as follows:
“The apology and the earnest of future compliance which the court accepted were in the circumstances, and on the face of it, almost entirely devoid of content. The Recorder was better placed than us to evaluate Mr Webb’s sincerity, but at first blush Mr Webb would appear to have done little more than to accede to the Recorder’s invitation to say what the Recorder told him he needed to say in order to secure his release. It fell far short of the considered, spontaneous and reasoned contrition and understanding demonstrated by [Hambridge] which persuaded the judge in that case to order early release..”
The process of discharging one’s contempt is more than simply a token gesture apology.
Within the practice note “sentencing”, the desirability of a sentencer to state what part of the sentence relates to past behaviour and what part relates to the coercive objective, as per JSC BTA Bank v Solodchenko  EWCA Civ 1241, is explained. It is also especially important in regard to discharge proceedings, where a part sentence may have been served equivalent to the punitive limb, whilst compliance with a court order has also been achieved.
Discharges and Writs of Sequestrations
This section should be read in conjunction with the practice note “Writs of Sequestration”.
A similar process of discharge applies where an individual has been committed for failing to deliver up property in line with the writ. The extra hurdle in such applications is to obtain evidence or confirmation from the relevant commissions appointed by the writ, to confirm that the property has been received. The foundations of writs of sequestration, and committals based upon them, are very much focused on the coercive objectives of the process.