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All Change: New Rules for Applications for Contempt of Court

15.12.20

The rules for applications for civil contempt under the CPR have been replaced from 1 October 2020 with the implementation of a new Part 81 of the rules.

Contempt of court can appear in a number of different guises. Further, the substantive law of contempt is derived from both common law and statute, and the jurisdictions of the High Court and the county court are substantially different.

The draftsmen of the old rules sought to reflect these differences by dividing up the rules in Part 81 into different sections for applications for committal for enforcing compliance with judgments or orders (section 2), for interference with the due administration of justice  (section 3), for contempt in the face of the court (section 5) and for the making of a false statement of truth or disclosure statement (section 6). There were further sections providing rules in relation to the exercise by the High Court of statutory powers in relation to matters certified to the High Court by inferior courts (section 4), applications to the High Court for a writ of sequestration to enforce a judgment, order or undertaking (section 7) and the powers of the county court in relation to penal, contempt and disciplinary provisions under the County Courts Act 1984 (section 9). In addition, there were extensive provisions in Practice Direction 81 which supplemented several of these sections.

This approach gave rise to repetition as between the different sections of the rules and to complexities in drafting and issuing applications in respect of more than one kind of contempt. The procedural requirements for different forms of contempt differed significantly, posing dilemmas for litigants in choosing the correct approach. In a number of recent cases, the courts noted that the question of the appropriate procedure to be adopted in contempt cases would benefit from early consideration by the Rules Committee, as the position was unsatisfactory and unclear.

In response to that clarion call, the new CPR 81 consists of a set of just ten rules applicable to all contempt applications. Of particular note:

• Rule 81.3 sets out how to make a contempt application. Applications in existing High Court proceedings is made by an application under Part 23 in those proceedings, including against third parties. In the High Court, the application is determined by a High Court judge of the division in which the case is proceeding. In the county court, it is determined by a Circuit Judge sitting in the county court. Permission is now only required where the application is in relation to interference with the administration of justice other than in existing High Court or county court proceedings, and allegations of knowingly making a false statement in any affidavit, affirmation or other document verified by a statement of truth or in a disclosure statement.
• Rule 81.4 provides the requirements for a contempt application. The first requirement is that unless the court directs otherwise, every contempt application must be supported by written evidence given by affidavit or affirmation. Rule 81.4(2) sets out a list of matters that must be included in a contempt application, unless they are wholly inapplicable.
• Rule 81.5 sets out the requirements for service of a contempt application. It must be served personally with the evidence in support unless the court directs otherwise under Part 6 and except where a legal representative is on record and does not object in writing, in which case the issue of service is referred to a judge.
• Rule 81.6 provides for cases where no application is made, namely where the court considers a contempt may have been committed. This is particularly relevant to a contempt in the fact of the court, but is not limited to such contempt. The court may require any other party to give such assistance to the court as is proportionate and reasonable. If the court proceeds of its own initiative, it will issue a summons to the defendant setting out the same matters as under rule 81.4(2) as applicable and require the defendant to attend court for directions. The summons is served personally unless the court directs otherwise. Provision is made for the service on a legal representative by reference to rule 81.5.
• Rule 81.7 provides for directions to be given by the court as it thinks fit. The court may issue a bench warrant to secure the attendance of the defendant at a directions hearing or substantive hearing, but may not give any direction compelling the defendant to give evidence.
• Rule 81.8 provides rules in respect of hearings and judgments in contempt proceedings, including hearing the proceedings in public, irrespective of the parties’ consent, unless the court otherwise directs. This rule also sets out a simplified approach to publicity in respect of notifying the media of hearings and judgments, substantially replacing the 2015 practice directions on open court in committal applications.
• Rule 81.9 summarises the powers of the court in contempt proceedings to make an order of committal, impose a fine, confiscate assets, or other punishment permitted under the law. Execution of an order of committal requires issue of a warrant of committal and must be personally served on the defendant unless the court directs otherwise.
• Rule 81.10 provides that an application to discharge a committal order may be made by a defendant by Part 23 application notice, and the court shall consider all the circumstances and make such order under the law as it thinks fit.

There are no transitional rules and therefore any existing proceedings will continue under the new rules. There is a limited saving for the purposes of r. 82.2A in respect of enforcement by writs of sequestration where proceedings for contempt have not been brought. The old practice direction 81 has been revoked and has not been replaced.

While process may not quite be everything, it is fundamental to the administration of justice and access to justice. The courts take breaches of their orders extremely seriously, but action usually depends upon the willingness of claimants to make an application. Obscure and difficult procedural requirements are a deterrent to enforcement. The new rules greatly simplify the procedures for a contempt application, ironing out many of the issues under the old rules, and are a welcome reform to this important area of civil procedure.

It should be noted, however, that the changes to the rules do not entail any change to the jurisdiction of the courts in determining contempt proceedings, or to the substantive law of contempt of court. Litigants will still have to be mindful, therefore, to ensure that any application is made to a court which has jurisdiction to deal with the matter, which will be a matter of referring to the relevant statutes and common law.

Commentary by Ming-Yee Shiu