Part 81.4 of the Civil Procedure Rules and Part 37.4 of the Family Procedure Rules, both require that an application contains "confirmation that any order allegedly breached or disobeyed included a penal notice". A Penal Notice is a prominent notice on the front of an order warning that if the person against whom the order is made (and, in the case of a corporate body, a director or officer of that body) disobeys the court's order, the person (or director or officer) may be held in contempt of court and punished by a fine, imprisonment, confiscation of assets or other punishment under the law. Easy you say, what is the issue.
A practice particularly in the family courts fuelled by the standard orders having a penal notice already within them, has caused a situation where by disobedience of an Order with a penal notice is common. Not least by unsuspecting Court staff who may not realising that they are covered by these all encompassing penal notices.
Every breach of a Court Order is contemptable, but only those that are covered by a penal notice, are subject to the sanctions of a fine, or imprisonment for such contemptable behaviour.
The inclusion of a penal notice in a court order is not automatic or mandatory; its necessity is determined on a case-by-case basis. Courts consider various factors, such as the nature of the order, the likelihood of non-compliance, and the potential harm caused by non-compliance, when deciding whether to include a penal notice.
Lawyers play a crucial role in drafting effective penal notices that clearly communicate the consequences of non-compliance. The notice should be concise, unambiguous, and prominently displayed within the court order, ensuring that the party bound by the order is aware of the potential ramifications of their actions or inactions.
Penal notices must and should be directed to a specific element of the order, i.e. not a general one, covering every paragraph including future listing of the matter. They must also be ordered by the Judge, rather than applied at drafting stage.
In defence of committals, a first step should always be to review the Order. On occasions orders make clear there was no intention to apply a penal notice, but one appears due to an error in drafting. On other occasions the transcript will show that a penal notice was never even discussed, but has just arrived through the drafting process. These are all important steps to ensure that a party who listens intently to the court proceedings and complies as best they can, does not suddenly find that they are threatened with contempt of court because they did not then re-read the Court order.
In both the prosecution or defence of a contempt application, it is vital that a party ensures they are represented by an experienced lawyer. To often the basics are missed, a failure to complete the forms properly, a misguided application, or just a failure to join the dots, results in an expensive day to court.
Advancing into the AI age, I thought I was would ask Chat GPT to tell me about the Debtors Act 1869, an act that many a lawyer has never heard of. Chat GPT informed me that
"The Debtors Act 1869 is an Act of Parliament in the United Kingdom that provides relief to debtors. The main purpose of the Act is to provide a mechanism for the discharge of debt by imprisonment or other means. The Act applies to both England and Wales and Scotland.
Under the Act, a debtor can apply to the court to be released from prison if they have been imprisoned for non-payment of a debt. The court can then order the release of the debtor if it is satisfied that they are unable to pay the debt, or if there is no likelihood of them being able to pay it in the future.
The Act also provides for the appointment of a trustee or assignee to manage the debtor's property and assets in the event that they are unable to pay their debts. The trustee or assignee can then take steps to recover the debts owed to the debtor.
The Act further provides for the setting aside of judgments obtained by fraud or misrepresentation. This means that a debtor can apply to the court to have a judgment against them set aside if it was obtained by fraud or misrepresentation.
Overall, the Debtors Act 1869 is an important piece of legislation that provides relief to debtors who are unable to pay their debts, while also protecting the rights of creditors. It remains relevant to this day and continues to provide an important legal framework for dealing with debt-related issues."
Clearly, at the moment AI isn't going to replace lawyers in complex issues. AI records that "The main purpose of the Act is to provide a mechanism for the discharge of debt by imprisonment or other means. ", but the first line of the Act records that it is "An Act for the Abolition of Imprisonment for Debt, for the punishment of fraudulent debtors, and for other purposes."
The Act ended the Dickinson’s ideas of debt prisons and significantly improved the world for those falling on hard times. Section 4 prohibits imprisonment for debt save where the debt relates to a penalty, other than by contract, a fine before a justice of the peace, default by a trustee to pay a sum to court, default by a solicitor to pay wasted costs order and failure to pay sums deducted from wages. The section provides a term of imprisonment of up to a year, and that such imprisonment does not discharge the debt.
Section 5 provides for imprisonment of small sums, owed due to an order of the Court, and then only for six weeks, and again does not extinguish the debt. The debt however cannot be an ordinary debt. As the Court of Appeal in Hussain, this is not as black and white despite the age of the act.
Chat GPT, also clearly read the Act as created rather than as it now exists.
The summary cannot be complained about, but we are far away from Chat GPT issuing a committal application just yet.
The Upper Tribunal Immigration and Asylum Chamber will be closed on the following dates:
Friday 24th December 2021
Monday 27th December 2021
Tuesday 28th December 2021
Monday 3rd January 2022
Between Wednesday 29th and Friday 31st December the office will operate on skeleton staffing.
OUT OF HOURS SERVICE
If you wish to lodge an urgent application for immediate interim relief during this period,
this will need to be made to a duty Judge of the Queen’s Bench Division (acting as a Judge of the Upper Tribunal) to consider. To speak to a member of staff for the out of hours service, please ring 020 7947 6260 (RCJ Security Desk).
CE-File case management system (CMS) will be transitioning into the Judicial Review, Upper Tribunal Immigration and Asylum Chamber. It is due to go live from the 17 January 2022.
The introduction of the CMS will allow staff and judiciary in these locations to issue and manage cases electronically, moving away from the current FHINS system. CE-File will remove the need for a paper case file, when mandated for professional users or when a litigant in person chooses to use the external E-Filing service.
The case numbers will change from the current format JR/1234/2021 to the new E-Filing format JR-2021-000001
• Scheduling of online training webinars for legal professionals leading up to go-live will be advertised on the Reform GOV.Uk site (www.gov.uk/guidance/hmcts-reform-events-programme), HMCTS social media channels and the HMCTS stakeholder weekly bulletin
• The current available GOV.UK guidance to support users: www.gov.uk/guidance/hmcts-e-filing-service-for-citizens-and-professionals & https://www.gov.uk/government/publications/how-to-use-the-hmcts-e-filing-service
• Access to all the previous E-Filing training recordings and a recording will be made for the UTIAC specific training to be hosted here: CE File Training Sessions - YouTube
The CE-Filling system, has had a mixed response in other areas, with there still being a tendency for some judges to need to be emailed the papers in addition to them being filled. We will need to wait and see how the Tribunal deal with case preparation and whether emailing the bundles, and or hard copies will become a thing of the past.
An interesting comparison is to be made between those who seek to protest both by blocking roads, and using social media to allegedly cause trespass and harassment, and those that simply block roads, allegedly causing trespass and nuisance as an act of protest.
In MBR case judgment is attached below, the Court concluded that there should be the bare minimum done in the interim to enable protest. A prohibition on trespass, and a zonal order on the space directly in front of the Claimants property. Even that bare minimum had a considerable effect on the protest, but was far removed from the injunction granted in the National Highways case, including against persons unknown.
The case also noted the procedural differences where there is an allegation of harassment that relates to publication, and the real need to focus a claim.
The National Highways case has received recent publicity, because of the committal proceedings. The underlying order against named and unknown parties provided provided that:
"2.1 Blocking, endangering, slowing down, preventing, or obstructing the free flow of traffic onto or along or off the M25 for the purposes of protesting.
2.2 Causing damage to the surface of or to any apparatus on or around the M25 including but not limited to painting, damaging by fire, or affixing any item or structure thereto.
2.3 Affixing themselves ("locking on") to any other person or object on the M25.
2.4 Erecting any structure on the M25.
2.5 Tunnelling in the vicinity of the M25.
2.6 Entering onto the M25 unless in a motor vehicle.
2.7 Abandoning any vehicle or item on the M25 with the intention of causing an obstruction.
2.8 Refusing to leave the area of the M25 when asked to do so by a police constable, National Highways Traffic Officer or High Court Enforcement Officer.
2.9 Causing, assisting or encouraging any other person to do any act prohibited by paragraphs 2.1-2.8 above.
2.10 Continuing any act prohibited by paragraphs 2.1-2.9 above."
Interesting a number of the civil prohibitions were also criminal in nature, it is unclear how if there were no criminal prosecution and party could be allowed to prosecute what is otherwise a criminal matter.
Oddly term 2.6 seems to suggest that persons are now excluded from riding on a motorbike on the M25, but could drive a milk cart (prohibited by law normally on a motorway), as the order permits it. The terms of the prohibition all seem very odd, and things that are already prohibited by the law. There may well be definitions that get around these issues.
However they are on any reading and especially as they are against persons unknown wide ranging and rather specific, for interim relief. Why the same effect could not have been achieved by zonal orders prohibiting protest on the M25 as was done in the MBR case.
The committal case also made clear that a Defendant must choose to access legal aid, and that once they were aware of it, that was all that really had to be done. There will be cases in the future, it is clear that will show that in some areas finding a solicitor to act under legal aid, is often an impossible obstacle to accessing legal aid.
The Supreme Court have brought to an end, a long running committal cases, between Nobu Su, and Lakatamia Shipping Company Limited, heard before the High Court between the issue of the application on the 27 March 2020 and the refusal of permission to appeal to the Supreme Court on the 29 October 2021.
The case first came before the Court on the 3 April 2021, before Mr Justice Foxton, to deal with expedition, and other matters 3 April 2020 . The Committal application continued, with an agreed amendment in May 2020, bring in further allegations.
Mr Su, declared himself bankrupt, and the process of collection of his debts started.
In October 2020, Mr Su was back before the Court in relation to the underlying civil case. Mrs Justice Cockrill described "Mr Su's name will be familiar to any student of modern commercial litigation. He is a gentleman who has gone by various names over the years, including Nobu Su, Su Hsin Chi and Nobu Morimoto. Over the past 10 years Mr Su has been embroiled in a substantial number of civil court proceedings in England and Wales and elsewhere." That judgement described the long and embattled history between Mr Su and the Claimants 30 October 2020
In December 2020, a further amendment, the second was sought. The matter came before Mr Justice Calver, and permission was granted to add the further allegations. 11 December 2020
On the 1 April 2021 on review Deputy ICC Judge Passfield determined that Mr Su was within the Jurisdiction such that he could claim to be bankrupt.
In April 2021, it came before Sir Michael Burton, who dealt with issues relating to continuation of the passporting orders, in light of Mr Su, then being found to be bankrupt. 15 April 2021
In June 2021 Mr Su admitted to the contempts, and sought that he was sentenced at the further hearing of the matter.
In July 2021 Mrs Justice Bacon determined that Mr Su was not within the jurisdiction for the purpose of bankruptcy, and so determined that his bankruptcy would be annulled. 1 July 2021
on the 7 July 2021, Mr Su having admitted the contempt's, came back before Sir Michael Burton, for the third time to be sentenced. On this occasion Sir Michael determined that the proper sentence for Mr Su, was the maximum sentence of two years of imprisonment, despite mitigation and a guilty plea. 7 July 2021
That sentence was widely reported in the Daily Mail and other newspapers
Mr Su appealed to the Court of Appeal on the 8 September 2021, for an appeal before Lady Justice Carr and Lord Justice Arnold, that appeal upheld the sentence, on the basis that it was an exceptional case, and as such despite there being mitigation, a maximum sentence could still be applied. Permission to appeal was refused but it was certified as a point of public importance. 15 September 2021
On the 29 October 2021, the Supreme Court refused permission to appeal bring to an end the litigation in respect to committal. There will no doubt be considerable on going issues relating to the debt and other matters.
Scott Moncrieff & Associates, instructing Adam Tear as Advocate, recently represented Preston Haskell in both the High Court and Court of Appeal in respect to the appeal against the finding that Mr Haskell had wilfully not paid his former wife monies owed to her.
Before the Honourable Mr Justice Moor, on the 17 May 2021 Mr Haskell successfully resisted numerous allegations that he had not paid money that was said to be owing to his wife. He was however found to owe £50,000, that he had, had and had not paid to his wife. As such he was sentenced to six weeks imprisonment. That decision was upheld on appeal.
The High Court case, was an interesting demonstration, as to why these cases should be approached with caution, prepared properly and supported by a properly prepared witness. The Claimant in the matter, may now have lost her opportunity to enforce by way of the Debtors Act, in respect to the majority of the payments that have so far fallen.
The case was widely reported in the Times and the Daily Mail
The long standing rule that debt cannot be enforced by imprisonment, save for the limited circumstances contained within the Debtors Act 1869 has been refined. In Hussain v Vaswani and others  EWCA 1216 Civ, the Court of Appeal endorsed the judgement of his Honour Judge Lethem, in the Central London County Court, and found that an ordinary debt could, if an undertaking was given to the Court be enforced for failure to pay the debt by way of imprisonment.
The Court of Appeal found at paragraph 46 that " As Bates v Bates makes clear, section 4 must be purposively construed. As Cotton LJ stated, its purpose is to prevent imprisonment for non-payment of ordinary debts. Thus, as the authorities make clear, it does not apply to orders or undertakings requiring the provision of security, whether way of payment into court or an appropriate bank account. I shall assume for present purposes that Luxmoore J was correct to decide in Cotton v Heyl that section 4 applies to an undertaking to pay money to a party which is otherwise precisely equivalent to an order to pay money to that party. I agree with Zacaroli J in Discovery v Jirehouse, however, that it is necessary not only to construe the undertaking, but also to take into account the context in which, and the purpose for which, it was given. In the present case, as counsel for the Vaswanis pointed out, Mr Hussain gave the undertakings in order first to establish a change of circumstances which would open the door to a reconsideration of the refusal of a stay and secondly to persuade the court to exercise its discretion in his favour by granting a stay. Thus the undertakings were the price Mr Hussain paid in order to obtain court orders in his favour and adverse to the Vaswanis. In such circumstances it is vital that the court should be able properly to enforce undertakings given to it. Mr Hussain did not comply with his undertakings. True it is that the non-compliance manifested itself in a failure to pay money to the Vaswanis, but in the circumstances that was not a failure to pay an ordinary debt. On the contrary, it was a failure to honour extra obligations to the court which Mr Hussain assumed, over and above the ordinary debts he owed, for the purposes of obtaining advantages in the proceedings."
This will be especially prevalent when possession claims restart. Individuals will be at real risk of giving undertakings to pay the backdated rent owed, in order to avoid possession claims, and fall into the position that they can be then imprisoned, until they pay that debt.
The issue is heading to the Supreme Court to consider permission, after the Court of Appeal granted a certificate that the issues contained within the judgement were matter of wider public importance.
Contempt is the sledge hammer by which the Court, enforces its will upon those before it, or within it. It is draconian, and on occasions unfair, but it is a necessary tool, by which the Court, can ensure that its orders are obeyed.
Not all breaches of an order are contemptible, fail to pay your bills, get a County Court Judgement against you, requiring to pay in 21 days, if you don't pay you will not be in contempt. You won't generally even fall within the Debtors Act 1869, which abolishes imprisonment generally for debt, but does allow it in certain circumstances.
Every person who is accused of contempt of court, is entitled to free representation, on a non means, non merits basis. As such even Prince Charles if accused of contempt, could pop along to his local high street firm, and obtain free representation from any firm in the country.
A common misconception particularly by civil firms is that they must have a criminal contract. That misconception is clearly not correct and one that must be remedied. Any firm whether it has a legal aid contract or not, and or whether it is civil or criminal, makes no difference, legal aid is available for all, no matter what. The guidance is relatively clear in the LAA guidance.
Once a party has representation and an advocate of their choice, they have further rights. The right to silence, the right to reasonable time for preparation of their case, the right to know the case against them, and most importantly the right to have the case against them proved beyond all reasonable doubt.
CPR 81, and its Practice Direction, are vital essential check lists of what will or will not make a fair trial. Specialist litigators and advocates should also have access to the leading text books such as Arlidge, Eady & Smith on Contempt or Borrie and Lowe: The Law of Contempt which offer insight into more specialist parts of the area of law.
The Debtors Act 1869, provides the general accomplishment of prison for debt, with exceptions contained within Section 4, which provides for up to a year imprisonment if you fall within. Section 5, reserves the right to imprison for up to six weeks, for certain debts normally related to family matters. It is important to note that the six weeks does not extinguish the debt, and indeed, you can be imprisoned again, and again until you pay the debt.
The law also provides that not all orders to pay, or transfer money falls within the Debtors Act. For instances an order to pay money into Court does not provide for the protection within the Debtors Act. Only monies which are ordinary debts, and or paid to the Claimant fall within the protection.
If accused of a contempt, as soon as you receive the papers, contact a litigator, ask for legal aid, and get them the papers, so they can apply. Within 24 hours they should be able to obtain funding, and go on record for you with the Court. Often the first attendance will be to make arrangements for the final hearing. If found guilty or an admission is made, the case will normally be adjourned in order to obtain the necessary mitigation statements in the matter.
Do not delay seeking a lawyer to assist you, that each day you wait is a reduction in the discount given to you, should you wish to admit the offending behaviour. For more guidance please see the pages on contempt.
In an update to the CPR, dealing with housing possession there has been guidance given as to how claims will be brought back after the end of the stay period. Claims will not have their stay automatically lifted and parties will need to issue a written notice (reactivation).
Unless the Court orders otherwise this will apply to all possession claims stayed under the previous direction.
The written notice, must be served on all parties, and must contain three things. It must set out, what the party wants done, the effects, of the pandemic if known upon the defendant and dependants, and be accompanied with the last two years of rent statements if a case of rent arrears unless on appeal.
In respect to new claims, claimants will be required to comply with the pre-action protocol as appropriate, but additionally file a notice setting out any known effects upon the Defendant and or dependants of the pandemic.
The 123 update can be found here, see the housing page for information on housing matters, which is here
Adam is a solicitor advocate, and regularly appears in the High Court and Court of Appeal dealing with some of the most complex and interesting public law cases.