Lexis Nexis E-Bulletin Series: Contempt Proceedings and Contempt of Court – Part 4

Committal Proceedings and Contempt of Court

4/12 Hearings in Absence and in Private

This e-bulletin is part of a series covering contempt of court in all its forms and the series is designed to be relevant to all practice areas. Richard Shepherd has been commissioned by Lexis Nexis to draft their Professional Practice Notes on the subject. Albion Chambers is delighted that we have been granted permission by Lexis Nexis to share these guides with our instructing solicitors and professional clients before they have been published online. The next e-bulletins in the series will be published every Tuesday morning.

Generally

This e-bulletin will examine the circumstances in which committal-type hearings can be heard in the absence of the alleged contemnor, particularly in light of the state’s article 6 obligations.

The note will also cover cases where the committal hearings are held in private despite the desirability of the principle of open justice.

Hearings in Absence

Whether in a criminal trial, or quasi-criminal proceedings such as committals for contempt or writs of sequestration, there is no absolute right for a respondent to attend their trial. (For further details about the nature of quasi-criminal proceedings please refer to the ‘Nuts and Bolts’ e-bulletin published previously).

A Nine Point Checklist

In Sanchez v Sanchez v Oboz and Oboz [2015] EWHC 235 (Fam), sometimes referred to as S v O, the court set out a nine-point checklist to assist other courts in determining whether to proceed in absence. These can be paraphrased as follows:

• Whether the respondent has been served with all of the documentation, importantly including the notice;

• Whether the respondent has had sufficient notice;

• Has any reason been provided for their non-attendance;

• Whether explicitly or by inference the respondent has waived their right to attend;

• The effectiveness of an adjournment in securing their attendance;

• An assessment of the detriment on the respondent in their not being able to present their evidence;

• What prejudice would be caused to the applicant by a delay;

• Whether the evidence would suffer or be degraded by a delay;

• The overriding objective.

It should be noted that this checklist was devised in relation to family proceedings and therefore the ‘overriding’ objective point should be treated with a little caution. However, the overriding objectives of family proceedings and the Civil Procedure Rules are broadly similar, and therefore there is no reason to suspect that this checklist would not apply equally in non-family cases.

The Sanchez checklist was applied in the music licensing case of Phonographic Performance Ltd v Nightclub (London) Ltd [2016] EWHC 892 (Ch) where an application for committal and writ of sequestration was made. The court in Phonographic, following an earlier authority of JSC BTA Bank v Solodchenko [2011] EWHC 1613 (Ch), made it crystal clear that proceeding in absence should be very much the exception.

Sentencing in Absence

In the event a court decides to hear the committal application in the absence of the respondent it does not necessarily follow that if the alleged matter is proved, the court will also continue to sentence.

In Solodchenko the court expressed the position as follows;

“In a case where a serious contempt has been proved in a respondent’s absence, it is, in my judgment, appropriate for the court to pause before proceeding immediately to sentence and to consider whether the matter should, in the alternative, be adjourned.”

The court then set out three factors as to why this ‘pause’ was desirable, in summary:

• It is what happens in the criminal courts;

• the sentencing exercise may involve mitigation or applications to ‘purge’ or discharge a contempt; and

• the process in securing a contemnor’s attendance at court for sentence may assist in securing future compliance with court orders.

However, the absence of a contemnor does not prevent a court from sentencing. In Taylor v Van Dutch Marine Holding Ltd and others [2016] EWHC 2201 (Ch) the court proceeded to sentence despite the absence of the defendants on the basis that the defendants’ previous conduct would indicate that an adjournment would be unlikely to secure their attendance.

A bench warrant can be issued, as per Solodchenko in order to assist in securing a contemnor’s attendance.

(For further details about discharging or purging a contempt, please see the future e-bulletin “Appeals, Purges and Discharge”) 

(For further details about Sentencing please see last Tuesday’s e-bulletin “Committal Proceedings – Sentencing”)

Warrants

If the court decides to make a committal order, the approach is to issue a warrant of committal. Where such an order is made in absence it is especially important for the court and the applicant to note and comply with the requirements of CPR 81.30. These are as follows;

“(1) If a committal order is made, the order will be for the issue of a warrant of committal.

(2) Unless the court orders otherwise–

(a) a copy of the committal order must be served on the respondent either before or at the time of the execution of the warrant of committal; or

(b) where the warrant of committal has been signed by the judge, the committal order may be served on the respondent at any time within 36 hours after the execution of the warrant.

(3) Without further order of the court, a warrant of committal must not be enforced more than 2 years after the date on which the warrant is issued.”

CPR 81.29 allows a committal order to be suspended for a given period and/or on particular terms. For further details please see the e-bulletin ‘Committal Proceedings – Sentencing’.

Hearings in Private

The primary guidance in cases where it is proposed that committal hearings are to be held in private is derived from the March 2015 Practice Direction: Committal for Contempt of Court – Open Court March 2015, this was later supplemented by further guidance from the LCJ in June 2015. The practice direction is said to apply to all committal proceedings, irrespective of their root jurisdiction. The practice direction also makes it clear that it is drafted to supplement the CPR, not to amend it.

Lord Thomas LCJ, the writer of the practice direction, comments as follows;

“Open justice is a fundamental principle. The general rule is that hearings are carried out in, and judgments and orders are made in, public. This rule applies to all hearings, whether on application or otherwise, for committal for contempt irrespective of the court in which they are heard or of the proceedings in which they arise.

Derogations from the general principle can only be justified in exceptional circumstances, when they are strictly necessary as measures to secure the proper administration of justice. Derogations shall, where justified, be no more than strictly necessary to achieve their purpose.”

The primary jurisdiction in which private hearings relate is the family jurisdiction, particularly that concerning children, though not exclusively so.

As per Para 8 of the Practice Direction where a court is considering hearing an application in private the court must:

• Notify the national print and broadcast media, via the Press Association’s CopyDirect service, and

• Hear submissions from the parties and/or the media on the question whether to impose the proposed derogation.

As an example, JTR v HNL [2015] EWHC 2298 (QB) concerns a witness telling lies in a witness statement. That witness statement related to successful privacy proceedings preventing the disclosure of information about a person’s sexual activities. The committal application hearing was heard in private and the subsequent judgment anonymised, as to do otherwise would frustrate the purposes of the original privacy case.

The next e-bulletin will be published on Tuesday, 3 January and will focus on Discontinuances, Defects and Strike-Outs.

Richard Shepherd