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ADAM TEAR |
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Defending of a committal is exceptionally complex and you must enter into it with an understanding of the basics of contempt. Further having an understanding of the underlying issues in the case as well as the allegations being made. Nothing said here is a replacement for competent advice from a qualified solicitor or advocate.
Jurisdiction |
The starting point for any claim is does the Court have jurisdiction. The Civil Procedure Rules Part 81, Practice Directions at paragraph 10.1 provides that an application for contempt, may be made in the County Court if the alleged contempt is a contempt which the County Court has
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power to punish or must otherwise be made in the High Court. If the Court does not have jurisdiction it is likely that the matter will have to be transferred to the correct court.
The starting point in all committals is to ensure that the respondent has if they so wish access to legal aid. In the County Court and the High Court, this is granted by the Legal Aid Agency, on a no means basis, and the interests of justice will be met. In the Court of Appeal, the Court may grant legal aid itself. The case of Bunning is no longer good law on procedure in the High Court, since the judgement in McKay (No2), but still applicable in the Court of Appeal. The process for obtaining legal aid, should take no more than 48 hours, the process is here. An article on some of the current issues with legal aid, by Gordon Exall in his excellent Civil Litigation Brief is here
DID THE APPLICANT NEED PERMISSION
If they are seeking to enforce an Order, or it is in respect to a "Statutory Committal" then no permission is need, otherwise the first hurdle is permission. See the How to, and the CPR.
GENERAL RULES ABOUT APPLICATIONS USING A CLAIM FORM
The CPR Part 81 and its Practice Direction are there to be followed, if the Applicant has not, then this may be a procedural error.
The general rules are contained within the PD starting at paragraph 9 which reminds us all that "In all cases the Convention rights of those involved should particularly be borne in mind. It should be noted that the standard of proof, having regard to the possibility that a person may be sent to prison, is that the allegation be proved beyond reasonable doubt."
The general rules are contained within the PD starting at paragraph 9 which reminds us all that "In all cases the Convention rights of those involved should particularly be borne in mind. It should be noted that the standard of proof, having regard to the possibility that a person may be sent to prison, is that the allegation be proved beyond reasonable doubt."
GENERAL CONSIDERATIONS
The application or claim form must:
(a) set out in full the grounds on which the committal application is made and must identify, separately and numerically, each alleged act of contempt including, if known, the date of each of the alleged acts; and
(b) be supported by one or more affidavits containing all the evidence relied upon.
The application notice and the evidence in support must be served personally and can only be amended with the permission of the Court.
(a) set out in full the grounds on which the committal application is made and must identify, separately and numerically, each alleged act of contempt including, if known, the date of each of the alleged acts; and
(b) be supported by one or more affidavits containing all the evidence relied upon.
The application notice and the evidence in support must be served personally and can only be amended with the permission of the Court.
Breach of Order
The most common contempt application is for failing to do something, or doing something the party was ordered not to do, or undertook not to do. For an Order to be enforced by way of committal it must have on the face of it “If you the within-named [ ] do not comply with this order you may be held to be in contempt of court and imprisoned or fined, or your assets may be seized.” An undertaking does not require the same, but there are some specific issues with this.
EVIDENCE FOR COMMITTALS
Written evidence in support of or in opposition to a committal application must be given by affidavit. An Affidavit is a statement sworn before an appointed person, and will normally be evidence in chief for that person. The evidence served in support of or in opposition to a committal application must, unless the court otherwise directs, be written and filed. A respondent may not be forced to give evidence written or otherwise. This is very important, you cannot be compelled to give evidence, although the Court might be able to draw adverse inferences from silence. There are some legal arguments in respect to this matter and proper legal advice is necessary in respect to these issues.
THE HEARING
At the start of the hearing you will have an opportunity to apply to strike out, or the Court may of its own standing decided to strike out. See CPR Part 81 PD para 16.
The most importantly aspect for the Court is compliance with the respondents Article 6 rights. The Court will have regard to the need for the respondent to be –
(1) allowed a reasonable time for responding to the committal application including, if necessary, preparing a defence;
(2) made aware of the possible availability of criminal legal aid and how to contact the Legal Aid Agency;
(3) given the opportunity, if unrepresented, to obtain legal advice; and
(4) if unable to understand English, allowed to make arrangements, seeking the assistance of the court if necessary, for an interpreter to attend the hearing.
If that is unsuccessful then the Applicant will be able to present their cases. Once they have concluded their case, you will then have the opportunity to request the judge considers whether the Applicant has reached the threshold in establishing an beyond all reasonable doubt case that you have done the thing you are accused of. If the judge accepts that there is a case to meet, then you will have an opportunity to present your defence, if you so wish. See Re Hancock [2015] EWHC 2324 (Fam)
In respect to breach of orders, not only must the Order be served and the Respondent know of the requirements, but the order must be clear as to its terms. As such a defective freezing order were a term was left at the default of £1 was not enforceable by way of committal. Haederle v Thomas [2016] EWHC 1866 (Ch).
The applicant may only rely upon grounds set out in the claim form or application notice, and evidence unless it has been served correctly. Taking into consideration an issue that was not in the claim form, or was not in sworn evidence is an error. See the judgement in Inplayer v Thorogood [2014] EWCA Civ 1511, where a party was found in contempt for an allegation that was not within the claim form and so the appeal had to be allowed.
The most importantly aspect for the Court is compliance with the respondents Article 6 rights. The Court will have regard to the need for the respondent to be –
(1) allowed a reasonable time for responding to the committal application including, if necessary, preparing a defence;
(2) made aware of the possible availability of criminal legal aid and how to contact the Legal Aid Agency;
(3) given the opportunity, if unrepresented, to obtain legal advice; and
(4) if unable to understand English, allowed to make arrangements, seeking the assistance of the court if necessary, for an interpreter to attend the hearing.
If that is unsuccessful then the Applicant will be able to present their cases. Once they have concluded their case, you will then have the opportunity to request the judge considers whether the Applicant has reached the threshold in establishing an beyond all reasonable doubt case that you have done the thing you are accused of. If the judge accepts that there is a case to meet, then you will have an opportunity to present your defence, if you so wish. See Re Hancock [2015] EWHC 2324 (Fam)
In respect to breach of orders, not only must the Order be served and the Respondent know of the requirements, but the order must be clear as to its terms. As such a defective freezing order were a term was left at the default of £1 was not enforceable by way of committal. Haederle v Thomas [2016] EWHC 1866 (Ch).
The applicant may only rely upon grounds set out in the claim form or application notice, and evidence unless it has been served correctly. Taking into consideration an issue that was not in the claim form, or was not in sworn evidence is an error. See the judgement in Inplayer v Thorogood [2014] EWCA Civ 1511, where a party was found in contempt for an allegation that was not within the claim form and so the appeal had to be allowed.
OUTCOMES
There are four outcomes to a finding of contempt. Firstly no order, often where there has already been compliance, and no intention to disobey the Court, the Court will give the failing party a warning. Secondly the Court could fine a defaulting party, where the Court is of the opinion that the custodial threshold has not been met, it may simple fine a party. This would usually be as a result of compliance, after the required time. The third option is that goods are seized, this would happen where the party was required to provide the item, and has defaulted. The fourth and final option is that the Court could send a person to prison. If the Court considered that the conduct is so serious and or the only way to compel the respondent to comply with the Order is via custody then the Court may send a person to prison. However they cannot send someone to prison simply because they may not be able to afford to pay a fine. The custody threshold must be met in all instances. Once the threshold is met the Court should then consider whether to suspend the penalty. This may be done to ensure compliance with the Order.
It is essential to ensure that proper mitigation is put forward at this stage and that the Court are made aware of any factors that might need to be considered in the matter. See Re Hancock [2015] EWHC 2324 (Fam) The Court will not have pre-sentencing reports and are unlikely to have much evidence to assist them. As such you should always be prepared to deal with mitigation by way of prepared, but un-served evidence such as medical reports etc. If you lose you will also be liable for the othersides costs.
It is essential to ensure that proper mitigation is put forward at this stage and that the Court are made aware of any factors that might need to be considered in the matter. See Re Hancock [2015] EWHC 2324 (Fam) The Court will not have pre-sentencing reports and are unlikely to have much evidence to assist them. As such you should always be prepared to deal with mitigation by way of prepared, but un-served evidence such as medical reports etc. If you lose you will also be liable for the othersides costs.
Appeals
A person found in contempt can as of right appeal. There is no permission stage which has some disadvantages. The appeal must be in time, see Lakatamia v SU [2019] EWCA Civ 1626. There are in relativity no further appeals. Few if any committal cases go to the Supreme Court. In order to progress to the Supreme Court, the Court must certify that the appeal is contains a point of law of general public importance. Permission must also be sought.