Lexis Nexis E-Bulletin Series: Contempt Proceedings and Contempt of Court - Part 5

Committal Proceedings and Contempt of Court

5/12 Discontinuance, Defects and Strike-Outs

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 practice note covers circumstances where applications for committal for contempt or writs of sequestration may not run as smoothly as envisaged.

In general terms the procedural requirements and the matters to be proved are covered in some detail in the practice note “Nuts and Bolts” and also the individual practice notes covering each type of contempt or writ of sequestration. This practice note should be read in conjunction with those.

A Strict Regime

As set out in the e-bulletin “Nuts and Bolts”, unless the court permits otherwise, the adherence to the requirements of CPR 81 in making these types of applications is mandatory.

The approach to be adopted should very much focus on ensuring that each individual part of CPR 81 is satisfied before lodging an application. Though the courts do have some discretion in waiving particular requirements, in these types of proceedings, procedural irregularities should be avoided. Failure to do so can result in the court striking out the application (see below).

Though there are exceptions, one of the fundamental requirements is for the proposed contemnor to be aware of proceedings and by way of penal notice or otherwise, be aware of the potential consequences of the hearing.

Abuse of Process

Abuse of process is dealt with in greater detail in the practice note “Nuts and Bolts”. Nevertheless, the courts are particularly vigilant and therefore ready to strike out applications (more below) that seem to be seeking to achieve an illegitimate aim.

The court is Sectorguard plc v Dienne plc [2009] EWHC 2693 (Ch) said as follows;

“In my judgment the court should, in the exercise of its case management powers be astute to detect cases in which contempt proceedings are not being pursued for those legitimate ends... Committal proceedings of that type are properly to be regarded as an abuse of process, and the court should lose no time in putting an end to them...”

The Prescribed Grounds for Strike-Out

CPR PD 81, para 16 sets out four grounds for striking out;

  • The application/evidence does not disclose reasonable grounds for alleging the contempt

  • There has been a failure to comply with the prescribed requirements

  • The application is an abuse or process or

  • The application will interfere with the administration of justice (usually in associated proceedings – see practice note “False Statements” as an example).

In Lord Mayor and Citizens of the City of Westminster v Addbins Ltd [2012] EWHC 2404 the court stated the position as follows;

The power to commit has been described as the courts ultimate weapon in securing compliance with its orders... it follows that such applications must only be made for a proper purpose and that applications which are made for an illegitimate purpose or are pointless will be struck out”.

As with all CPR strike out applications, this should not amount to a trial of the merits.

Discontinuance

As will be appreciated, because contempt proceedings or proceedings for writs of sequestration, often have at their heart a coercive intent, circumstances may change so as to cause an applicant to want to discontinue the contempt action.

An applicant must seek the court’s permission to discontinue a committal application.

For instance, in Gloucestershire County Council v Newman [2014] EWHC 3399 (Fam) the applicant council brought two sets of contempt proceedings covering different allegations spanning different periods of time. The council was successful in its first application and the coercive effect was to secure compliance with court orders. As a result, the court allowed the applicant to discontinue the second set of proceedings.

If an applicant seeks to discontinue they must be mindful of CPR 38.61, which states in essence that the claimant who discontinues a case is liable for the defendant’s costs, unless otherwise ordered by the court.

CPR 38.61 however is under the general rules of the CPR rather than the rules which require the court’s permission for discontinuance; therefore it does not have direct application to committal discontinuance.

Discontinuance and Costs

However, even when an applicant abandons contempt proceedings they may still be entitled to some or all of their costs. In Beechcroft Close Management Ltd v TG Estate Management Ltd and Anor [2015] (Ch D) Judgment Date 30/10/2015, for instance, after attempting other ways of securing compliance, contempt proceedings were issued. The application achieved this goal. Proceedings were discontinued and costs were applied for as against the respondents. The court ordered 50% of the claimant’s costs to be paid; they were assessed on the indemnity basis despite the applicant not being ‘successful’ in the proceedings.

A similar approach was adopted in Variable Message Signs Ltd v Entrusted Group Ltd [2014] EWHC 4760 (QB) where the proposed contemnor accepted his wrongdoing in the days shortly before the committal application was due to be heard.

A more nuanced approach was adopted in Kaglovsky v Turevych and others [2014] EWHC 2697 (QB) where the court undertook a costs assessment based upon when findings of contempt were made versus when proceedings were discontinued. The eventual order was that the respondent would pay the costs of the applicant up to the findings made; thereafter the applicant would pay the respondent’s costs.

Waiving Compliance with Part 81 Requirements

Throughout the practice notes covering committals and writs of sequestration reference is made to the strict regime and the mandatory requirements of Part 81.

Nothing in this section should be read as challenging or undermining that headline feature.

Nevertheless, in limited circumstances the courts can waive compliance with the mandatory requirements, especially where an applicant can demonstrate “effective compliance” or strenuous efforts to comply. For instance, personal service on a proposed contemnor of unknown whereabouts, despite employing a private investigator to discover their whereabouts, should not act as a bar to bringing committal proceedings.

If applying to proceed despite technical breaches, a practitioner should focus on identifying (with supporting evidence) efforts made to comply; instances where the proposed contemnor has sought to frustrate compliance and also; explain and demonstrate why prejudice has not been caused. Note, the last issue, that of lack of prejudice may have less impact than it once did, see below).

CPR PD 81 para 16.2 provides as follows;

The court may waive any procedural defect in the commencement or conduct of a committal application if satisfied that no injustice has been caused to the respondent by the defect.

There is little merit in listing a wide variety of cases where procedural defects have been waived or excused. The theme from all of the authorities is whether the waiver causes injustice to the proposed contemnor.

However, bear in mind that post Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537 and the strict compliance to the CPR demanded, even where no identifiable prejudice can be identified the court may still strike out the application for non-compliance. Therefore a practitioner may wish to give pre-Mitchell authorities a Mitchell gloss.

For further details see the forthcoming e-bulletin “Appeals, Purges and Discharges” where Kagalowsky v Balmore Invest Ltd and others [2014] EWHC 108 (QB) is referenced as an example where strict adherence was underlined.

The post-Mitchell position should be contrasted with the authorities below, the pre-Mitchell position can be best summed up by the case of Bell v Tuohy [2002] EWCA Civ 423 as follows;

It is always a cause for concern if there are any technical or procedural defects in a contempt application... However... the proper approach is to consider each of the defects relied on... and to describe whether they caused any prejudice or unfairness to him either separately or together”.

This approach follows a long line of case law, for example see Nicholas v Nicholas [1997] 1 WLR 314, and Jolly v Jolly [2000] 2 FLR 77. Whether these authorities will continue to have the influence they once had is a matter for debate.

Defects and Injustice

As above, injustice (however it may be described) is the central consideration when a court is deciding whether to waive a committal-type CPR requirement.

If the proposed contemnor can point to any real injustice, or in the case of non-attendance, where the court can identify such an injustice, the breach of the procedural requirement causing that injustice is unlikely to be waived, see Khawaja v Popat and Popat [2016] EWCA Civ 362.

Richard Shepherd