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ADAM TEAR |
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Prosecution of a committal is exceptionally complex and you must enter into it with an understanding of the basics of contempt. The first stage is to identify where you are going to issue! 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. 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. See the How to guide with the details of the six.
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DO YOU NEED PERMISSION
If you 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, so follow them. 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."
When the claim is started as a stand alone claim i.e. not a breach of order or undertaking, it will be made under Part 8 of the CPR, and an amendment to the claim form may be made with the permission of the court but not otherwise. The claim form must contain a form of notice setting out the consequences of a committal order being made. An example is below and at Annex 3 of the PD. It is good practice at the stage of the application, and or before to provide the respondent with details of how to contact the Legal Aid Agency to obtain legal aid, and or solicitors to obtain legal aided advice.
When the claim is started as a stand alone claim i.e. not a breach of order or undertaking, it will be made under Part 8 of the CPR, and an amendment to the claim form may be made with the permission of the court but not otherwise. The claim form must contain a form of notice setting out the consequences of a committal order being made. An example is below and at Annex 3 of the PD. It is good practice at the stage of the application, and or before to provide the respondent with details of how to contact the Legal Aid Agency to obtain legal aid, and or solicitors to obtain legal aided advice.
GENERAL RULES ABOUT APPLICATIONS USING AN APPLICATION FORM
Again, use and follow the CPR. When issuing an application it will be under Part 23 of the CPR and the application is made in the proceedings in question, and its title and reference number must correspond with the title and reference number of those proceedings. The application notice 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 on the respondent. Only those allegations contained within or subsequently formally amended with permission of the Court may be dealt with as a form of contempt. It is a serious procedural error for there to be a change in the issue being prosecuted in the course of the proceedings.
Any amendment to the application notice may be made with the permission of the court but not otherwise. The court may not dispose of the application without a hearing; and the application notice must contain a prominent notice stating the possible consequences of the court making a committal order and of the respondent not attending the hearing as contained within Annex 3 and below. It is good practice at the stage of the application, and or before to provide the respondent with details of how to contact the Legal Aid Agency to obtain legal aid , and or solicitors to obtain legal aided advice.
(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 on the respondent. Only those allegations contained within or subsequently formally amended with permission of the Court may be dealt with as a form of contempt. It is a serious procedural error for there to be a change in the issue being prosecuted in the course of the proceedings.
Any amendment to the application notice may be made with the permission of the court but not otherwise. The court may not dispose of the application without a hearing; and the application notice must contain a prominent notice stating the possible consequences of the court making a committal order and of the respondent not attending the hearing as contained within Annex 3 and below. It is good practice at the stage of the application, and or before to provide the respondent with details of how to contact the Legal Aid Agency to obtain legal aid , and or solicitors to obtain legal aided advice.
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IMPORTANT NOTICE
The Court has power to send you to prison, to fine you or seize your assets if it finds that any of the allegations made against you are true and amount to a contempt of court. You must attend court on the date shown on the front of this form. It is in your own interest to do so. You should bring with you any witnesses and documents which you think will help you put your side of the case. If you consider the allegations are not true you must tell the court why*. If it is established that they are true, you must tell the court of any good reason why they do not amount to a contempt of court, or, if they do, why you should not be punished. If you need advice, you should show this document at once to your solicitor or go to a Citizens’ Advice Bureau or similar organisation. |
* Very importantly the standard warning contained above is defective as it requires a party to tell the Court if the allegations are not true, why they are not true. That of course is wrong, as the respondent does not need to tell the court or give any evidence, it is for the applicant to prove beyond all reasonable doubt the truth of their allegations. However it is the standard warning until the Civil Procedure Rules Committee consider the issue.
Breach of Order or Undertaking
CIVIL PROCEDURE RULES CPR 81.4
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.
THE HEARING
Having got your claim form or application issued and permission to continue if need, the next step is the hearing and proving beyond all reasonable doubt that the Respondent did the thing you accuse them of. When issuing or filing the claim form or application notice for a committal application, the applicant must obtain from the court a date for the hearing of the committal application, which will not normally be less than 14 days from service of the documents.
At that hearing the Court will either case manage the matter with a view of hearing the committal application in the future or if the parties are ready, deal with the committal. In deciding whether to deal with the matter, the court will have regard to the need for the respondent to have details of the alleged acts of contempt and the opportunity to respond to the committal application prior to the hearing.
The applicant may only rely upon grounds set out in the claim form or application notice, and evidence unless it has been served correctly. Where a committal order is made in the absence of the respondent, the court may on its own initiative fix a date and time when the respondent is to be brought before the court.
The most importantly in 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.
At that hearing the Court will either case manage the matter with a view of hearing the committal application in the future or if the parties are ready, deal with the committal. In deciding whether to deal with the matter, the court will have regard to the need for the respondent to have details of the alleged acts of contempt and the opportunity to respond to the committal application prior to the hearing.
The applicant may only rely upon grounds set out in the claim form or application notice, and evidence unless it has been served correctly. Where a committal order is made in the absence of the respondent, the court may on its own initiative fix a date and time when the respondent is to be brought before the court.
The most importantly in 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.
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.
Words of caution
The failure of a prosecution will lead the losing party to be open to the costs of the other side as they would be in other civil matters. As such being careful to ensure that the prosecution of the committal is a success is essential to avoid costs. Further in the same way that other civil cases, if found to be completely without merit, can lead to civil restraint orders. Lawyers must further be aware that should these cases go wrong through poor pleading there is a very real risk of a claim in negligence being made against them.