Contempts and Penal Notices

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.
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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.