Contempt of Court - Spring Series: 14/15

Sentencing and Costs

Having looked at different contempts in recent weeks, this bulletin examines the principles and purposes of ‘sentencing’ in contempt cases following a successful contempt application under CPR 81 (also referred to as a ‘committal application’) and the powers of the court, which include imprisonment, confiscation of assets (‘writs of sequestration’) or imposing a fine. It also considers when the court will consider it appropriate to impose a sanction in the defendant’s absence, and, if imposing a term of imprisonment, when the court is likely to suspend this. It does not seek to set out a guide as to the appropriateness or otherwise of the length of the period of imprisonment in any given circumstances. As per Longhurst Homes v Killen [2008] EWCA Civ 402, the length of imprisonment will always depend on a wide variety of matters and, of course, the nature of the contempt itself.

Our bulletin also includes a section on how the courts should address the significant additional limitations and restrictions placed on prisoners due to the coronavirus (COVID-19) pandemic as per R v Manning [2020] EWCA Crim 592, and considers what cost orders the court may make at the conclusion of a committal hearing.

Within this bulletin we use ‘sentence’ and ‘sanction’ interchangeably. Although often referred to as a ‘sentence’, because we are dealing with a civil contempt rather than a criminal conviction, the appropriate terminology is a ‘sanction’ or ‘term of imprisonment’ – see Cuciurean v Secretary of State for Transport [2021] EWCA Civ 357. However, because much of the relevant case law refers to the sentencing exercise once a contempt has been proved, we’ve continued to use both terms. 
 

Court’s power to order committal

CPR 81.9(1) confirms that if the defendant is found in contempt of court, the court may impose a period of imprisonment (also known as an ‘order of committal’ (CPR 81.2)).

However, pursuant to section 4 of the Debtors Act 1869 (DA 1869), a person cannot be ‘imprisoned for making default in payment of a sum of money’, subject to the exceptions set out in that section. The intention of this section is to ‘prevent the imprisonment of persons for non-payment of ordinary debts’ (Bates v Bates (1888) 14 P.D. 17). A simple undertaking to pay a debt is likely to be caught by this section, but an undertaking which may involve the payment of monies in relation to a debt, but which is given to secure some other sort of advantage or favour (such as a stay in proceedings) will not be (Hussain v Vaswani [2020] EWCA Civ 1216).
  

Period of imprisonment

Under section 14 of the Contempt of Court Act 1981 (CCA 1981), the maximum term of imprisonment that the court can order is two years on ‘one occasion’.

The decision as to the length of imprisonment appropriate in a particular case must take into account that the maximum term is two years. However, because the maximum term is comparatively short, this does not mean that it is only reserved for the very worst sort of contempt which can be imagined. Rather, there will be a comparatively broad range of conduct which can fairly be regarded as falling within the most serious category and as therefore justifying a term of imprisonment at or near the maximum (McKendrick v The Financial Conduct Authority [2019] EWCA Civ 524 at [40]).
 
The term of imprisonment must also be for a finite period and the court cannot commit a person to prison ‘until they comply’ or similar (CCA 1981, s 14(1)) and the Court of Appeal case of James v James [2018] EWCA Civ 1982).              
 

The meaning of ‘on one occasion’

Under CCA 1981, s 14, where the maximum term of imprisonment is set, the following language is used: '[the term of imprisonment] shall not on any occasion exceed two years'.

Defining ‘any occasion’ has caused difficulties.

For instance, a single act that continues over a number of days may be both defined as ‘one occasion’ or a separate act per day.

The authority of Villiers v Villiers [1994] 2 All ER 149 instead focussed on the date of the court hearing as being the ‘any occasion’. The court stated: 

‘…a judge might sentence for one contempt in the morning and another in the afternoon, or for one contempt one day and another contempt the next day in the belief that by doing so he would not be imposing the sentences on one occasion. I could imagine circumstances in which this court would have little hesitation in holding that there had been a manipulation of the timetable such as to amount to an abuse of process.’

Practical tip: relying on Villiers, it is suggested that if representing the defendant, if there are multiple breaches stemming from fractured proceedings, it may be in the defendant’s interest to have all matters listed (and sentenced) together, rather than treating them in a piecemeal fashion.

Moreover, following the potential abuse of process highlighted in Villiers, there is some further support from Symes v Phillips [2005] EWCA Civ 533 for the contention that it would be inappropriate, in most circumstances, for the court to leave unresolved some other possible contempts, of which it was aware. To do otherwise would be a manipulation of the sentencing regime relating to 'on any occasion'.
 
However, the Court of Appeal made clear in Ablyazov v JSC BTA Bank [2011] EWCA Civ 1386 that the approach in Villiers and Symes was not absolute.

Nevertheless, further support for this ‘finality’ principle can be derived from Central Bedfordshire CC v Markwick [2016] EWHC 2540 (Fam) where the court permitted the council to abandon committal proceedings on the basis that they be restricted from pursuing any further allegations that pre-dated a specified date. It should be recognised that Markwick is not a sentencing case per se, though it would appear to be consistent with the sentencing principles outlined above.
 

The purpose of the sanction—punitive, coercive or both?

Traditionally, contempt sentencing is based upon twinned principles:

  • the first is to punish a defendant for their wrongdoing
  • the second is to persuade the defendant to comply (with a court order or rule of the court) in the future

Of course, some sentencing exercises will need to address both points.

Note that in terms of the ‘punishment phase’, the court in Oliver v Shaikh [2020] EWHC 2658 (QB) confirmed that the position has not changed post the amendment to CPR 81 with effect from 1 October 2020, and previous authorities to penalty continue to apply.

More recently the courts have also begun to cite a third purpose of sentencing, that of rehabilitation (Secretary of State for Transport v Cuciurean [2020] EWHC 2723 (Ch) at [10]). Whether rehabilitation is a separate principle or simply part of the coercive/persuasive objective is a moot point but the issue is one that needs to be considered.

The difficulty in seeking guidance from any particular case is the varied landscape that the sanction process must deal with; one case may not be relevant to another set of circumstances.

It is, however, perhaps worth noting the guidance by Rix LJ (with whom Black and Lewison LJJ agreed) in Templeton Insurance Ltd v Thomas [2013] EWCA Civ 35, at [42]: 

‘In my judgment, whereas it will always remain appropriate to consider in individual cases whether committal is necessary, and what is the shortest time necessary for such imprisonment, and whether a sentence of imprisonment can be suspended, or dispensed with altogether: nevertheless, it must now be accepted that the attack on the administration of justice which is made when a freezing order is breached usually merits an immediate sentence of imprisonment of some not insubstantial amount.’

 
As cited with approval by the Court of Appeal in Sage v Hewlett Packard [2017] EWCA Civ 973.
 
Practical tip: for a good overview of the sentencing process in contempt cases, the following five cases are essential reading:

  • McKendrick v Financial Conduct Authority [2019] EWCA Civ 524  
  • JSC BTA Bank v Pugachev [2016] EWHC 258 (Ch)  
  • Asia Islamic Finance v Drum Risk Management [2015] EWHC 3748 (Comm)  
  • Crystalmews Ltd v Metterick [2006] EWHC 3087 (Ch)  
  • Oliver v Shaikh [2020] EWHC 2658 (QB) —especially see the list of factors to be taken into account when determining sanction in para [17]  

Between them, the above authorities provide a long list of factors to be considered in a wide variety of sentencing exercises. This bulletin can’t list all of them, only those that would seem to apply in the widest range of circumstances, however, taking McKendrick as a leading case, an approach of assessing culpability then harm, as per the approach in the criminal courts, has been endorsed for contempt proceedings.

Imprisonment will be the sanction of last resort and only appropriate where there is serious, contumacious flouting of orders of the court (Reynolds v Long [2018] EWHC 3535 (Ch) at [56], Gulf Azov Shipping v Idisi [2001] EWCA Civ 21 at [72]). This approach is exemplified by the case of Venables v News Group Newspapers [2019] EWHC 241 (QB), where despite the high-profile injunction and sensitive subject matter of the injunction, the court found suspended terms of imprisonment were appropriate in both cases.

However, generally speaking, a breach of a court order should be treated seriously and sanctions will often be significant. Where there is a continuous breach, the court should specify which part of the sanction relates to previous breaches and which fall into the coercive objective. Such an approach is very much twinned with the principles relating to the purging of a contemnor’s contempt (Discovery Land Company v Jirehouse [2019] EWHC 2264 (Ch)). Jirehouse is a useful authority dealing with both of these issues. To complete the picture, Secretary of State for Transport v Cuciurean [2020] EWHC 2723 (Ch) countenances the possibility of imposing a ‘split’ sanction; a term of immediate imprisonment to mark the past contempt, with a suspended term of imprisonment to dissuade future non-compliance (see para [56]). The court declined to do so but it underlines how courts when sentencing for contempt consider the punitive and the coercive separately.

In line with standard criminal sentencing, the court must consider:

  • whether committal to prison is necessary
  • what is the shortest time necessary for such imprisonment, and
  • whether the sentence can be suspended

The importance of the coercive objective is illustrated well in Supple v Supple [2016] EWHC 2619 (Ch). Despite the defendant having breached court orders on numerous occasions, by the time the court came to impose a sanction, he was largely in compliance with those court orders and therefore the coercive objective of the proceedings had been achieved.

Similarly, in Gloucestershire CC v Newman [2014] EWHC 3399 (Fam), the court found contempt proved, but decided to defer sentencing the defendant rather than imposing a sanction immediately because the court formed the view that this was the best way of securing future compliance.
 

Mitigation

As part of the sentencing process, the court must assess any mitigation put forward by the defendant, and the case of McKendrick v Financial Conduct Authority [2019] EWCA Civ 524 provides a useful, non-exhaustive, list of factors that may be considered in mitigation. As an example of where the court failed in this regard, see Symes v Phillips [2005] EWCA Civ 533.

When making a reduction to the term of imprisonment to take account of an admission of wrongdoing it is best practice for the court to first state what the appropriate length of the term would be prior to the reduction and then consider what reduction to make for the admission, very much mirroring the step by step approach to pronouncing sentence in the criminal courts, but it does not amount to an error of law if a judge fails to express the appropriate length prior to the reduction (Sellers v Podstreshnyy [2019] EWCA Civ 613 at [31]).

When considering whether delay in sentencing can be a relevant mitigating factor, the court in Liverpool Victoria v Zafar [2019] EWCA Civ 392 at para [44] noted that it important to distinguish between unreasonable delay, not attributable to any fault on the part of the defendant, from the passage of time which is a necessary consequence of the proper litigation of allegations of contempt of court. Where a defendant has made an early admission of wrongdoing, but for reasons beyond their control a long period of time then passes before a court imposes a sanction for the wrongdoing, the passage of time may be an important point in mitigation. The position is however different when all wrongdoing is denied. While an alleged defendant is entitled to contest the allegation, and the fact that they do so cannot make the contempt more serious, the defendant cannot then expect much weight to be given in their favour to the fact that the necessary court proceedings result in the passage of a substantial period of time.

Where breach of a court order has led to financial loss to the claimant or to third parties, this may be an aggravating factor when considering sanction, but it does not follow that the absence of such loss is a mitigating factor; the damage caused by contempt of court is damage to the administration of justice and the rule of law, both of which require a person who is subject to the order to comply with its terms regardless of the financial consequences of non-compliance (Lockett v Minstrell Recruitment [2021] EWCA Civ 102 at [33]).
 

Sentencing and the coronavirus (Covid-19) pandemic

The coronavirus (COVID 19) pandemic has put the prison estate under particular and acute pressure. The need for prisoner officers to self-isolate, if displaying any of the symptoms associated with COVID-19, has meant that prisons are understaffed. Further, to maintain a degree of social distancing, prisoners (and staff) must abide by protocols which together with the understaffing has meant prisoners will often spend 23 hours per day in the cells.

This additional factor can be reflected in the length of sentence imposed by the court, or indeed the type of sentence. For instance, the court may move the punishment from immediate imprisonment to a suspended sentence. The case of R v Manning [2020] EWCA Crim 592 (a case in relation to sentencing in the criminal courts) makes it clear that this is not to be used as a COVID-19 discount, but the pandemic can be reflected if the more onerous nature of prison life has a particular effect in the circumstances of the case.

The impact of the pandemic was also considered in Lockett v Minstrell Recruitment [2021] EWCA Civ 102 and was one of the factors instrumental in the Court of Appeal reducing a sentence of 12 months to 8 months.
 

Totality, consecutive and concurrent sentences and time served

The principle of totality applies as much to contempt sentences as it does to general criminal sentencing. As stated in S&A Conversions [1988] Lexis Citation 2151: 

‘The sentencer must stand back from proceedings, and put them in perspective…In many cases, of course, the sentencer will rightly conclude that the sentence should indeed be made to operate consecutively…But in others [such an approach] yields a total time to be served which is simply too long…’

 
The totality principle also applies when assessing a consecutive or concurrent term of imprisonment imposed at the same time as activating an existing suspended sentence, see Sandwell v Preece [2007] EWCA Civ 1009.

It should also be noted that, although there is no statutory mechanism to deduct from the overall sanction time spent ‘on remand’ waiting for the committal hearing, it is a matter for the court whether it reflects this time spent from the final sanction. However, if a judge decides to deduct the period on remand, it is impermissible to stipulate a term of imprisonment 'minus the remand'. The judge must give a particular term of imprisonment having already given effect to the deduction (R (James) v Governor of Birmingham Prison [2015] EWCA Civ 58).
 

Concurrent contempt and criminal proceedings

There are many circumstances where the defendant may face sanctions for breach of an injunction (contempt) and breach of underlying criminal law. One example is where a serial offender, such as a rogue driveway company, may be breaching the Consumer Protection from Unfair Trading Regulations 2008 (SI 2008/1277) due to the way in which consumers are approached while also being in breach of a prohibitory injunction preventing the same behaviour.

Where a court is faced with a sentencing exercise for contempt, it should disregard a later sentencing exercise for related criminal offences. The guidance in Lomas v Parle (Practice Note) [2003] EWCA Civ 1804 makes it clear that the sentencing judge should: 

‘Not anticipate or allow for a likely future sentence. It is for the second court to sentence to reflect the prior sentence in its judgment in order to ensure that the defendant is not twice punished for the same act. It is essential that the second court should be fully informed of the factors and circumstances reflected in the first sentence…There is therefore an obligation on the first court to ensure that the basis of its sentence is fully expressed, and that a transcript of its judgment is made available to the second court, as the judge directed in the present case.’

 
The same approach was applied in the Court of Appeal authority of Gill v Birmingham CC [2016] EWCA Civ 608.
 

Reference to criminal sentencing guidelines

Sentencing guidelines relating to ‘similar’ criminal behaviour should only be relied upon with the utmost care. As per Lomas v Parle

‘A perpetrator may face sentence for the same act which amounts to both a breach of an injunction made in family proceedings and also a crime under the Protection from Harassment Act 1997. Of course, the sentencing courts do not share the same objective and operate in different ranges. The judge in family proceedings has to fit a custodial sentence within a range of 0–24 months. An important objective for him is to uphold the authority of the court by demonstrating that its orders cannot be flouted with impunity. Nevertheless, there will be a shared deterrent objective in the punishment of domestic violence by imprisonment.’

 
However, the approach adopted by the courts has not always been entirely consistent. As a contrary example, the Court of Appeal in Amicus v Thorley [2012] EWCA Civ 817 applied the sentencing guidelines for criminal breaches of an anti-social behaviour order (ASBO) to civil proceedings; a similar approach was adopted in Doey v Islington [2012] EWCA Civ 1825. In Secretary of State for Transport v Cuciurean [2020] EWHC 2723 (Ch), the court adopted a ‘half way house’, referencing sentencing guidelines but noting that the court ‘bear[s] in mind that it has no direct application to committal proceedings, but is “a useful comparison”, which requires caution in application’.

The court in Doey commented:

‘Strictly speaking, the Sentencing Guidelines are only applicable to criminal sentencing. Nevertheless, these guidelines have an obvious relevance to sentencing for civil contempt.’

It is suggested that the cases of Amicus and Doey in particular should be treated with a little caution. It is not clear whether the court had the benefit of argument on the appropriateness of using the sentencing guidelines. As an example of the tension in this area, the maximum sentence for breach of an ASBO is five years, while a contempt of court for the same action would be two years. It appears difficult to reconcile the applicability of guidelines with a higher maximum sentence to a sentencing exercise with a lower maximum sentence.

In Liverpool Victoria v Zafar [2019] EWCA Civ 392 at [43], the court applied criminal sentencing guidelines in the context of a contempt of court involving a false statement verified by a statement of truth, noting that the approach adopted by the criminal courts provides a useful comparison, though not a precise analogy. In particular, the court stated that Sentencing Council's guidelines on the imposition of community and custodial sentences and on reduction in sentence for a guilty plea were relevant in cases of this nature. In this type of case the court should consider the culpability of the defendant and the harm caused, intended or likely to be caused by the contempt of court and after having determined the seriousness of the case, the court must consider whether a fine would be a sufficient penalty. If it would, committal to prison cannot be justified, even if the defendant's means are so limited that the amount of the fine must be modest.

Practical tip: if relying on the criminal sentencing guidelines, ensure relative parity between maximum sentences of the contempt versus the criminal offence. The greater the disparity, the less reliable the guidelines will be.
 

Suspended sentences

A term of immediate imprisonment will usually be a punishment of last resort and the court will consider whether to suspend the term (CPR 81.9(2) and Amarfio v Abrahams [2018] EWHC 891 (Ch) at [32]). In Amarfio, when considering whether to suspend the sentence, the court took into account the following factors:

  • whether the defendant had offended in the same way before or had previously been imprisoned—this is generally a substantial factor against an immediate custodial sentence except in a very serious case
  • whether there had been deliberate flouting of the court order in question
  • what was the degree of culpability and harm done
  • whether the non-disclosure in question (pursuant to a freezing order) was deliberately misleading and incomplete or a lapse of judgment
  • whether there was persistent and ingrained non-compliance with court orders

In Liverpool Victoria Insurance Company v Zafar [2019] EWCA Civ 392, the Court of Appeal stated that where an expert witness has deliberately or recklessly made a false statement in a document verified by a statement of truth, the appropriate term will usually have to be served immediately, and that one or more powerful factors justifying suspension will have to be shown if the term is to be suspended. While the court is not precluded from taking into account at this stage of the process, factors which have already been considered when deciding the appropriate length of the term of committal, since the court will usually have given full weight to the mitigation on deciding the length of sentence, the likely result will be that there is no powerful factor making it appropriate to suspend the term. If the immediate imprisonment of the defendant will have a serious adverse effect on others, for example where the defendant is the sole or principal carer of children or of vulnerable adults, that may make it appropriate for the term to be suspended.

However, note the decision in Podstreshnyy v Pericles Properties [2019] EWHC 469 (Ch), in which the court refused to suspend the term of imprisonment despite the fact that the defendant lived with her 13-year-old son who would require care while she was in prison. On appeal, the Court of Appeal ([2019] EWCA Civ 613) upheld the judge’s decision not to suspend the term of imprisonment on the basis that an immediate custodial sentence was appropriate in view of the nature of the breaches and the importance of the public interest in compliance with freezing injunctions. However, the court reduced the term to six months’ imprisonment (from nine months) in view of the personal mitigation put forward regarding the effect that the custodial sentence had on the defendant’s son.
 

Terms and conditions attached to the suspension

A court can attach conditions to a suspended term of imprisonment and if a defendant breaches those conditions, the term of imprisonment will or may be activated. However, such term or conditions must themselves be lawful and possible to achieve. Secretary of State for Transport v Cuciurean [2020] EWHC 2723 (Ch) is an example where a condition not to enter particular land (relating to the construction of HS2) was attached to a suspended sentence.

Though there is no reported case within the law reports challenging the specifics of terms and conditions attached to a suspension (in contempt cases), it is suggested that the ordinary rules dealing with appeals must apply.

Practical tip: for reference and as a starting point, a practitioner faced with issues relating to the terms and conditions attached to a suspension may wish to review the body of case law that has arisen surrounding ASBOs and similar, which include the following cases:

  • Amarfio v Abrahams [2018] EWHC 891 (Ch)—in this case, the contempt was breach of the terms of a freezing order in not disclosing information and dealing with assets in a prohibited way. The court gave a sentence of three months' imprisonment for each of the breaches, to run concurrently, but suspended it for 12 months, subject to the condition that there be no further breaches of the freezing order and that the defendant provide monthly financial information by way of bank statements.  
  • Wolverhampton CC v Darby & Guest [2016] Lexis Citation 8— this is a High Court authority—although it does not have the enhanced status of Court of Appeal scrutiny, it is suggested that the court adopted a proper approach. In Darby, the court imposed a suspended sentence with the condition that the defendants did not take part in ‘car cruising’. Therefore, the court satisfied the punitive aspect of the process by the imposition of a custodial sentence and also sought to prevent the same activities taking place in the future.

Practical tip: if the court suspends the term of imprisonment and attaches terms and conditions to the suspension, ensure that these are included in the order of committal so that the defendant cannot later allege that they were not aware of them. This is provided for in the N603 (Order on determination of proceedings for contempt of court).
 

Sentencing in the defendant’s absence

In the event a court decides to hear the committal application in the absence of the defendant, it does not necessarily follow that if the alleged matter is proved, the court will also continue to impose a sanction. In fact, it is unlikely that the court will do so.

In JSC BTA Bank v Solodchenko [2011] EWHC 1613 (Ch), 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 defendant’s attendance at court for sentence may assist in securing future compliance with court orders

The same cautious approach was adopted during the coronavirus (COVID-19) pandemic, during a national lockdown, when it was not possible for the parties to attend court in person (although remote attendance had been possible). In two cases, Frejek v Frejek [2020] EWHC 1181 (Ch) and Yuzu Hair and Beauty Ltd v Selvathiraviam [2020] EWHC 1209 (Ch), the courts separately considered the principles in Sanchez v Oboz and Oboz [2015] EWHC 235 (Fam).

In both cases the judge proceeded with the committal hearings via video link and the hearing took place in the absence of the respective defendants joining the hearings. In each case the court found the allegations proved. However, when it came to sanction, both courts decided to adjourn matters to allow the defendants to attend. In the case of Frejek, to assist the defendant in attending court for sentencing, the judge issued a bench warrant to secure the defendant’s attendance. Though this authority was decided in May 2020, CPR 81.7(2) (in force after this case was decided) makes it explicit that the court has the power to issue a bench warrant to secure the attendance of the defendant.

It is suggested that such an approach is consistent with Solodchenko, it being undesirable to proceed to sanction in a defendant’s absence. However, the absence of a defendant does not prevent a court from sentencing, but this is likely to be in limited circumstances. In Taylor v Dutch Marine Holdings [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 (N602) can be issued, as per Solodchenko in order to assist in securing the defendant’s attendance at court (CPR 81.7(2)).

If the court decides to make a committal order, the approach is to issue a warrant of committal.
 

Fines and confiscation of assets

By virtue of CPR 81.9(1) the court may also impose a fine or order the confiscation of assets following a successful contempt application. The confiscation of assets was formally known as one of the types of writ of sequestration.

There is no statutory limit on the amount of the fine, except where an ‘inferior court’ has the power to order a fine, in which case the limit is currently £2,500 (CCA 1981, s 14(2)). CCA 1981 does not define an ‘inferior court’ but superior courts include the Supreme Court, Court of Appeal, High Court and any other court exercising powers equivalent to those of the High Court (CCA 1981, s 19) and for the purposes of CCA 1981, s 14(2) a County Court is a ‘superior court’ (CCA 1981, s 14(4A).

In Nash v Lygren [2020] EWHC 3088 (Ch), for persistent and serious breaches of a court order relating to a commercial dispute, two directors were fined £25,000 each, whilst the company was fined £100,000. Interestingly, in summarising the court’s powers at para [50], the court used the phrasing ‘and/or’ in relation to imprisonment, fines and writs of sequestration/confiscation, thus, it is suggested, contemplating a multi-faceted approach to the twinned sentencing objectives of punishment and coercion. At para [53] the court went on to say that ‘In relation to future compliance…If any future application is made…the Respondents should be in no doubt that the court will take an appropriately serious view of any continued or further breaches that may be found’. The carrot, and stick, in action.

If a fine is an appropriate punishment, it is wrong to impose a term of imprisonment because the defendant cannot pay the fine (Re M (Contact Order) [2005] EWCA Civ 615).

Confiscation of assets can be particularly effective in ensuring fines are paid by corporate bodies or other organisations and is also useful (as hinted at in Nash) of acting as a coercive stick to secure compliance.

A fine can be imposed on its own or in addition to a term of imprisonment (Phonographic Performance v Andrew Ellis [2018] EWCA Civ 2812).

In Monopro v Central Hall Developments [2017] EWHC 1509 (TCC), the court recognised that where it was imposing a fine as a sanction following a finding of contempt (admitted breaches of an undertaking and consent order) that it could not impose a fine on a joint and several basis in respect of the two defendants (para [50]). The judge declined to weight the fine more to the first defendant (the company) rather than the second defendant (an individual). He found that ‘to a very significant extent’ the second defendant was the personal servant or agent of the first defendant, being its sole director, its ‘heart and mind’ and accordingly he apportioned the fine equally between the two defendants.
 

Warrants of committal

If the court decides to make a committal order (N603), the approach is to issue a warrant of committal (N604) (CPR 81.9). Of course, if the defendant is in court, this is an artificial process but one which nevertheless must be complied with.

CPR 81.9 provides:

‘(2) Execution of an order of committal requires issue of a warrant of committal. An order of committal and a warrant of committal have immediate effect unless and to the extent that the court decides to suspend execution of the order or warrant.

(3) An order or warrant of committal must be personally served on the defendant unless the court directs otherwise.

(4) To the extent that the substantive law permits, a court may attach a power of arrest to a committal order.’

 
Under pre-1 October 2020 authority, a failure to serve the order will not invalidate the proceedings if there is no injustice or prejudice to the defendant as a result (ISIS Housing Cooperative v Evelyn [2019] EWCA Civ 1299). In this case, the defendant had been sentenced to prison in their absence and then committed to prison. The Court of Appeal found that there was no prejudice to the defendant in the order for committal not having been served since the defendant had known what the allegations against them were, known of the relevant hearing date at which they would be sentenced for the contempts found against them and had been warned that a term of imprisonment might be imposed. Further, the defendant had also known for some time that a warrant of committal had been issued, but took no steps to appeal and had made no attempts to purge their contempt. The court held that service of the order would have had no effect on their conduct.

CPR 81.9(3) (in force with effect from 1 October 2020) allows the court to waive personal service of the order or warrant of committal (by providing for personal service ‘unless the court otherwise directs’), which suggests that the court in ISIS Housing would have arrived at a similar position under the post-1 October 2020 version of CPR 81.

An order or warrant of committal may not be enforced more than two years after the date it was made unless the court directs otherwise (CPR 81.9(5)).
 

Costs of contempt proceedings

The usual rule of ‘costs follow success’ applies. In the ordinary course of events, a claimant or defendant who is successful can expect to receive some or all of their costs back. However, it should be noted that this isn’t an absolute rule. For instance in Cole v Carpenter [2020] EWHC 3244 (Ch) (a permission application) despite being unsuccessful the applicant was not ordered to pay the costs of the alleged contemnor, despite failing to persuade the court that permission should be granted at that stage. The alleged contemnor’s costs in responding to the application were to be assessed after the trial.

Minstrell Recruitment v Lockett [2021] EWCA Civ 102 is an example of the court taking a party’s conduct into account when making a costs order. The contempt application was successful and the court agreed to make a costs order in the claimant’s favour as the successful party. However, applying CPR 44.2, the court substantially reduced the costs recoverable to reflect dishonest conduct on the part of the claimant. On appeal of the sentencing decision in Lockett, the Court of Appeal did not disturb the costs order.

However, even when a claimant abandons contempt proceedings, they may still be entitled to some or all of their costs in the proceedings. In Beechcroft v TG Estate (2015) (unreported) the claimant sought compliance with a court order via committal proceedings, after achieving little success through other avenues. The order was eventually complied with and although the committal proceedings were discontinued, costs were applied for as against the defendants. The court ordered 50% of the claimant’s costs to be paid, they were assessed on the indemnity basis despite not being ‘successful’ in the proceedings.

Further, tentative, guidance may be derived from UPL Deutschland v Agchemaccess [2016] EWHC 2135 (Ch), where the court stated:

‘It seems to me that one of the matters that I am entitled to take into account is that the Court is entitled to have a rather broad-brush view in relation to the issue of success without having to look at every nook and cranny of the nature of the case and of where the merits lie.’

This was not a case concerning contempt but an application to secure documentation—a coercive application that was settled prior to determination. In UPL, costs were awarded in favour of the claimant. As a result, drawing comparisons between the situation in Beechcroft above, it would seem that ‘strict’ success in the proceedings is not required, and that a wider view is permissible where coercive factors are to be considered.

In Solanki v Intercity Technology Ltd [2018] EWCA Civ 101, the Court of Appeal set aside a costs order on the grounds it was disproportionate, the basic principle being that costs in relation to a contempt application should be reasonable and proportionate, and not penal.

That said, the court can, in line with normal civil costs rules, reflect poor litigation conduct when deciding whether to assess costs on an indemnity basis. In Nash v Lygren [2020] EWHC 3088 (Ch), the court commented that the costs application was large but ‘in my view justified’ when assessing the defendants’ litigation conduct, and the court awarded indemnity costs in the sum of £98,625.

In Cole v Carpenter [2020] EWHC 3244 (Ch), the court considered costs following the court’s dismissal of the defendants’ application for permission to bring contempt proceedings based on false statements, holding that the application was premature and the issue of the contempt should be dealt with at trial. While the court rejected the defendants’ application, the concept of who was ‘successful’ was not clear cut (both parties were successful to some extent), but to reflect the nature of the premature application and as ‘appropriate discouragement to the commencement of a contempt application when it is premature to do so’, the court ordered that the defendants should bear their own costs of the application.

Richard Shepherd
Alexander West