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ADAM TEAR |
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Adam has provided a short guide on how to on a contempt matter. Ranging from how to obtain legal aid through to the process, from both a prosecutor, defence and judges view. The guide is not advice, nor to be quoted from before the courts. This brief how to guide only deals with contempt's relating to breaches of orders in the civil courts.
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. As such the power for committals is limited. Turning to the level of judge you will be provided in the High Court this must be a High Court Judge, unless under enactment a Master is allowed to deal with the matter. In the County Court similarly the matter will be dealt with by a Judge of the County Court, unless specifically by enactment a District Judge is allowed. [PD 10.2]. The powers of a district judge are contained with in CPR Part 2, PD2B 8.3, and CPR 81.4(6) which effectively provides that they have power to commit where they have power to make the initial order. These cases are recorded within PD2B 8.1, these do not extend to general powers of contempt.
HOW TO START AN APPLICATION |
The starting point in all applications for committal is CPR Part 81, this provides a relatively comprehensive guide to most types of committal. It provides for six "types" of committal, and the slightly different procedure that is required in each of them.
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COMMITTAL FOR BREACH OF A JUDGMENT, ORDER OR UNDERTAKING TO DO OR ABSTAIN FROM DOING AN ACT
CIVIL PROCEDURE RULES CPR 81.4
KEY PRINCIPLE: The name of the game is not to imprison a person for non-compliance, but rather to secure compliance with the Order, and to discourage others from not complying.
The most common form of breach is a failure to do the thing the judge order you to do, or doing the thing you were told not to do. There are a variety of reasons for these failures, ranging from the belligerent through to the those that simply don't understand the details of the order and what is expected of them. A common error in an order is to make an order that is sufficiently unclear that no court could find that it was enforceable by way of committal. By way of example, the term "wait or loiter" is often used in an injunction excluding someone from that action from an area. But what does that mean, does it allow you to pass and re-pass as often as you like, does it mean you cannot pause for instance to cross at a pedestrian crossing etc. The term despite being widely used in orders, is sufficiently vague as to be unenforceable in real terms. Additionally as well as securing the necessary clear terms, the Order to be enforced by way of committal must contain the necessary Penal Notice CPR 81.9.
The most common form of breach is a failure to do the thing the judge order you to do, or doing the thing you were told not to do. There are a variety of reasons for these failures, ranging from the belligerent through to the those that simply don't understand the details of the order and what is expected of them. A common error in an order is to make an order that is sufficiently unclear that no court could find that it was enforceable by way of committal. By way of example, the term "wait or loiter" is often used in an injunction excluding someone from that action from an area. But what does that mean, does it allow you to pass and re-pass as often as you like, does it mean you cannot pause for instance to cross at a pedestrian crossing etc. The term despite being widely used in orders, is sufficiently vague as to be unenforceable in real terms. Additionally as well as securing the necessary clear terms, the Order to be enforced by way of committal must contain the necessary Penal Notice CPR 81.9.
Having secured your order, the next thing you must do, of course is ensure that the Order is served or sufficiently brought to the attention of the person that you wish to enforce against. The rules in relation to this are contained with CPR 81.5 - 81.8. If you cannot establish that a person was served, or aware of the order it will be impossible to enforce by way of committal.
How to make the committal application CPR 81.10
To commit under CPR 81.4, you must follow the steps prescribed within CPR 81.10, once you have secured your order, and the time for compliance has passed. The application is made under Part 23, in the existing proceedings, whether that person is already a party or not. That application form must [81.10(3)(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 [81.10(3)(b) be supported by one or more affidavits containing all the evidence relied upon. That application once issued, must be served personally on the party in breach of the order. This maybe dispensed with by the Court.
Committal for breach of a solicitor’s undertaking
CIVIL PROCEDURE RULES CPR 81.11
The second type of committal is in relation to breach of a solicitor's undertaking. A breach can be exceptional serious and even minor breaches have very serious consequences. Only solicitors can commit this second type of breach. The main difference is that under CPR 81.11(1) the permission of the Court is required to pursue the committal. Such permission lapses 14 days after it is granted CPR 81.11(6). The application for permission maybe made without notice, and must be made when filing the application under Part 23. Additionally the affidavit in the matter must set out, the name, description and address of the respondent; and the grounds on which the committal order is sought.
COMMITTAL FOR INTERFERENCE WITH THE DUE ADMINISTRATION OF JUSTICE
CIVIL PROCEDURE RULES CPR 81.12
The third type of committal is for interference with the due administration of justice. This will often by dealt as a contempt in the face of the court. This type of committal is made under CPR 81.12, except where the contempt is committed in the face of the court or consists of disobedience to an order of the court or a breach of an undertaking to the court. As such it could relate to making comments about judges, publishing information about them etc. The contempt does not need to be in relation to current proceedings. Permission must be as set out in CPR 81.13-14.
STATUTORY COMMITTALS
CIVIL PROCEDURE RULES CPR 81.15
The fourth type of committal, relates to committal based on a statutory failure, often before a Tribunal or Person. The relevant statutory provisions are:
(1) section 336 of the Charities Act 2011;
(2) sections 436 and 453C of the Companies Act 1985;
(3) paragraph 8 of Schedule 6 to the Data Protection Act 1998; and
(4) sections 18, 161 and 232 of the Financial Services and Markets Act 2000.
(1) section 336 of the Charities Act 2011;
(2) sections 436 and 453C of the Companies Act 1985;
(3) paragraph 8 of Schedule 6 to the Data Protection Act 1998; and
(4) sections 18, 161 and 232 of the Financial Services and Markets Act 2000.
CONTEMPT IN THE FACE OF THE COURT
CIVIL PROCEDURE RULES CPR 81.16
The fifth type, is committal in the face of the Court, and is simply were the offence is caused in the course of a hearing and the Court has jurisdiction to deal with the committal. The court may deal with the matter of its own initiative and give such directions as it thinks fit for the disposal of the matter. The general principles apply to these committals.
COMMITTAL FOR MAKING A FALSE STATEMENT OF TRUTH (RULE 32.14) OR DISCLOSURE STATEMENT (RULE 31.23)
CIVIL PROCEDURE RULES CPR 81.17
The sixth type of committal relates to making a false statement of truth or disclosure statement. No proceedings need to have been issued to have offended against this section. Where the breach occurs and is not related to a breach of an order, then the permission of the Court is needed in accordance with 81.18 or with the permission of the Attorney General.