Peters & Peters

Court of Appeal sheds light on new rules governing contempt proceedings

Applications for contempt of court have been brought into sharp focus in the English courts in recent years. As Mr Justice Foxton observed in Integral Petroleum SA v Petrogat FZE [2020] EWHC 558 (Comm), these applications “have become an increasingly common feature of High Court litigation, particularly in the Business and Property Courts”.

Prior to this observation, a number of senior judges had expressed their dissatisfaction with the wording of Part 81, which governs contempt proceedings. Among other problems, the rules were considered to be long, complex, repetitive and ultimately difficult to apply.

Against this backdrop, in the spring of 2020 the Civil Procedure Rule Committee (which is responsible for making rules of court that govern the Court of Appeal (Civil Division), the High Court and the County Court) (the CPRC) initiated a cross-jurisdictional consultation on how to improve Part 81. The result was a new Part 81, which has been in force since October 2020.

A key focus of the CPRC’s work was CPR r. 81.4, which governs the requirements of contempt applications. The CPRC described this provision as the “cornerstone of the new draft Part 81”, which was “intended to stand as the guarantor of procedural fairness”.

Court of Appeal rules on personal service

In Business Mortgage Finance 4 Plc and others v Hussain [2022] EWCA Civ 1264, the Court of Appeal considered the defendant’s appeal against a committal order and 24-month custodial sentence resulting from various breaches of an injunction. In upholding the High Court’s decision, the Court of Appeal clarified a number of key aspects of the new contempt regime.

The most significant of these was the court’s consideration of whether it has the power retrospectively to dispense with personal service on a defendant of the order that has allegedly been breached. While the old rules addressed this point, the new rules do not contain any express provision on it.

Under the new CPR r 81.4(2), a contempt application must include confirmation that the order allegedly breached was personally served, unless the court has dispensed with personal service (in which case the application must include a statement of the date and terms of the order). The defendant in this case argued that this rule envisages only two possibilities: either the order was personally served or the court has already dispensed with personal service. As the injunction had not been personally served in this case and the court had not dispensed with personal service, the defendant’s case was that the application for contempt could not proceed.

Although the court accepted that a strict reading of the rule would support this position, it did not believe that this was the CPRC’s intended effect. The court reasoned that if, as the defendant submitted, any order dispensing with service had to be made before breach, it “would mean that a respondent who was perfectly well aware of the terms of an injunction made against him could disobey the order with impunity on the grounds that no service had yet been effected on him”. This would cause both serious inconvenience and represent “radical changes in the long-standing practice of the court when granting injunctions”.

The court also noted that the terms of CPR r. 81.1(2) and (3) make clear that the new rules were not intended to alter the scope of the court’s jurisdiction; rather, they took effect subject to the substantive law of contempt. Although the court acknowledged that it is “perhaps not quite so easy to identify where the Court’s powers to dispense with service retrospectively derive from”, it confirmed that such a power does exist.

What does this mean in practice?

This is a timely judgment on one of the key provisions of the new Part 81. The general position remains that committal applications for breach of injunctions can only be brought where there has been personal service of the injunction that is sought to be enforced. This is recognised in CPR r. 81.4(2), which as the court noted, presupposes it to be the case. It also reflects the longstanding practice of the court and is intended to act as a procedural safeguard whereby the defendant has proper notice of an injunction before he is at risk of being committed for breach of it. The usual way to give this notice is personal service of the injunction itself.

However, the requirement for personal service has never been an absolute one: if it can be shown that the defendant had actual knowledge of the terms of the order (for example, if he was present when it was made), the court will not insist on personal service.

Other issues

The court also clarified certain other points concerning committal applications under the new Part 81:

– The court confirmed that applicants for committal are not under a duty to act wholly impartially; on the contrary, they have a legitimate private interest in the outcomes of the application. There is therefore nothing improper in suggesting to the Judge that the maximum sentence be imposed. In dismissing the defendant’s appeal against a 24-month sentence, the court reaffirmed that this sentence (the maximum) available is not reserved for the very worst contempts.

– Defendants to contempt applications do not require permission to appeal either the findings of contempt or the sentence imposed. Although the court did not hear any argument on the point, Lord Justice Nugee considered that this must be right both in cases where a judge makings findings of contempt and sentences the contemnor on the same occasion and in cases where the sentence is dealt with in a separate and subsequent hearing.