Contempt of court: making the process simpler and fairer

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As I have said in previous blogs (What is required to prove contempt of court? and It's only a court order, who cares?), applications in the civil courts for contempt of court are becoming more regular.

Civil contempt is conduct that is not itself a crime but is conduct which is punishable by the court to ensure that court orders are observed. Deliberately disobeying an order of the court or breaching an undertaking given in the course of litigation are common examples of conduct that constitutes a civil contempt.

If an allegation of contempt can be proved beyond reasonable doubt, the court has the power to punish a civil contempt by making an order for committal to prison for a period of up to two years, a financial penalty or confiscation of assets.

From 1 October 2020, a new, much condensed, Part 81 of the Civil Procedure Rules sets out the practices and procedures for contempt applications (the “new Part 81”).

Why the need for change?

The previous Part 81 (which came into effect in 2012) has been referred to as complicated, repetitive and poorly drafted. In redrafting the new Part 81 the aim was to streamline the rules relating to contempt to ensure they are easier to operate, with the intention of reducing the instances where procedural unfairness is found.

What's new?

The new Part 81 has been reduced in size considerably from 38 rules, two practice directions and a practice guidance, to just 10 brief rules. Those 10 rules largely omit the substantive law (found in the previous Part 81) and focus on the procedure. In addition, the relevant court forms will also be streamlined.

The main changes include the following:

The new Part 81.2 - references to the parties in civil contempt proceedings will no longer be to the ‘applicant’ and ‘respondent.’ Instead, the parties will be referred to as ‘claimant’ or ‘defendant’, on the basis that unrepresented parties are more likely to understand the word ‘defendant’.
The new Part 81.3 – sets out clearly (and more succinctly than before) how to make a contempt application and when the court’s permission is required to make an application.
The new Part 81.4 – sets out the requirements of a contempt application. It has been described as ‘… the cornerstone of the new … Part 81. It is intended to stand as the guarantor of procedural fairness and incorporates the requirements of procedural fairness to the defendant. If the rule is complied with, procedural fairness is likely to be observed.’
The new Part 81.5 – the rules on service of contempt applications have been clarified. It remains the case that, unless the court directs otherwise, every contempt application must be supported by an affidavit and served personally on the defendant, save where the defendant is legally represented in which case the application may be served on the representative unless they object in writing within seven days of receipt; in those circumstances the issue of service should be referred to the court dealing with the contempt application.
The new Part 81.8 – rather than appearing in a Practice Direction or Practice Guidance, the requirement for judges and advocates to be robed in all hearings of contempt proceedings, both in public and in private, is now set out in a rule to emphasise the gravity of contempt proceedings.
Amended Part 32.14 - this rule, which covers false statements, has been updated to make clear that contempt proceedings may be brought against a person who makes a false statement in a document, prepared in anticipation of or during proceedings, and which is verified by a statement of truth, without an honest belief in the truth of such statement. This mirrors the finding in the recent case of Jet 2 Holidays Ltd v Hughes [2019] EWCA Civ 1858.

Ultimately, for those bringing or defending contempt proceedings, whether in person or with legal representation, the new, streamlined rules should make the process a simpler and fairer one.

Furhter information

For further information on this topic, please refer to see some of our other recent blogs:

Contempt of court: the prospect of prison, even before proceedings are issued

About the authors

Fiona Simpson is a partner in our dispute resolution team. She specialises in civil fraud litigation, advising clients bringing or defending civil fraud proceedings, often involving injunctions and often with an international dimension. Fiona regularly advises on freezing orders and asset tracing.

Fiona also advises clients in commercial dispute resolution matters including breach of contract, partnership disputes and shareholder/director disputes.

Abigail Onslow is an associate in the Dispute Resolution team. Abigail works on a broad range of contentious matters including general commercial and contractual disputes, civil fraud cases and contentious trusts and probate claims