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Fair committal applications

Referee iStock 000006306507XSmall 146x219Toby Huggins sets out some of the key provisions to be borne in mind if committal applications are to succeed.

Recent cases have provided a timely reminder that in committal proceedings the courts are very astute to protect the procedural rights of respondent(s).

Mistakes in committal applications often result from a failure to appreciate that they are a very different creature from ordinary civil applications. This Note does not attempt to set out all necessary requirements for a valid committal application (that of course is the purpose of CPR 81 and the PD!). However, it is written in the belief that the most important provisions can be much more easily digested and remembered if some general principles of procedural justice are borne in mind.

Civil committal procedure

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The provisions in CPR 81 and the related practice direction reflect the principle that, whilst committal applications may arise in civil proceedings, they nevertheless fall to be categorised as criminal for the purposes of the European Convention on Human Rights (Berry Trade Ltd v. Moussavi [2002] EWCA 477 at [31]).

As a result, “it should be noted that the standard of proof, having regard to the possibility that a person may be sent to prison, is that the allegation be proved beyond reasonable doubt.” (para 9 PD 81).

The European Convention on Human Rights

Article 6(3)(c)  of the European Convention on Human Rights provides:

“Everyone charged with a criminal offence has the following minimum rights:

a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

b) to have adequate time and the facilities for the preparation of his defence;

c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court."

These rights underpin much of the detail of committal procedure. The importance of adherence to procedure is reflected in paragraph 16.1 of the Practice Direction to CPR 81, which provides that “a court may strike out a committal application if it appears to the court that....there has been a failure to comply with a rule, practice direction or court order”.

Before the application

Before incurring the expense of any committal application it is of course wise to check that the relevant order is indeed enforceable by committal!

If someone is unaware of a court order then it is unfair that they should be at risk of imprisonment for acting in breach of it. Thus, whilst exceptions may sometimes be made (see CPR 81.8 for the specific provisions), the general rule is that a court order is not enforceable by committal unless it has been served personally (CPR 81.6), and hence applicants should ensure that if necessary they are able to file and serve evidence proving personal service of the relevant order.

Further, to be enforceable by committal an order must contain a prominent penal notice (CPR 81.9) warning of the consequences of breach. By paragraph 1 of PD81 this notice should be worded as follows (or in words to substantially the same effect):

“If you the within-named [   ] do not comply with this order you may be held to be in contempt of court and imprisoned or fined, or your assets may be seized”

Article 6(3)(c)(a) of the ECHR

It is sometimes the case that committal proceedings are instigated and disposed of in the course of one hearing, for example when a person is arrested pursuant to a power of arrest attached to an injunction and the court is able to dispose of the matter at the first hearing. In such circumstances a written committal application is usually unnecessary.

Otherwise, CPR 81.10(3) provides that an application notice in support of a committal application must:

a) set out in full the grounds on which the committal application is made and must identify, separately and numerically, each alleged act of contempt including, if known, the date of each of the alleged acts; and

b) be supported by one or more affidavits containing all the evidence relied on

Non-compliance with this rule can prove very costly for an applicant. At para 29 of Masri v Consolidated Contractors International Company SAL & Ors [2010] EWHC 2458 (Comm) Blair J. provided this warning:

“It is…..a requirement that the application notice must identify, separately and numerically, each alleged act of contempt, including, if known, the date of each alleged act. This is far from being a formal requirement, since it is most important that the alleged contemnor should be clearly apprised of the nature of the case against him. The court should not (in my view) hesitate to strike out a committal application that does not comply

To comply with this stipulation an application notice might set out the allegations as follows:

1. On [date] in breach of paragraph [number] of the injunction order dated [date] the Defendant [set out the alleged act]

2. On [date] in breach of paragraph [number] of the injunction order dated [date] the Defendant [set out the alleged act]

3. ……

Requirement for affidavit evidence

This requirement is also often overlooked. In particular it can be tempting for cash strapped local authorities and registered providers to place reliance on “ordinary” witness statements at a final hearing, thus saving the expense of having the statements sworn before a commissioner for oaths (or other independent suitably qualified person).

This is an understandable practice but a risky one. It is understandable because if the relevant witnesses are to be called to give evidence orally, and the witness statement is signed with a statement of truth (thus imposing contempt liability on the signatory for any deliberate untruths), one may reasonably think no prejudice may be caused to the respondent. It is, however, risky because the requirement for affidavit evidence is expressed in mandatory not optional terms.

In my experience the absence of affidavit evidence rarely troubles a court in circumstances where properly drafted “ordinary” witness statements are available. However, if the point is taken, it can be useful for applicants to be aware of the observation of Green J. at para [41] of International Sports Tours v. Shorey [2015] EWHC 2040 (QB), to the effect that in modern litigation practice the weight to be attached to a statement of truth is the same as that to be attached to a formal affidavit. Paragraph 16.2 of PD 81 should also be noted. It provides that a court may waive a procedural defect “if satisfied that no injustice has been caused to the respondent by the defect”.

Nevertheless it is in my view best practice to obtain affidavit evidence whenever it is reasonably practicable to do so. If it is not thought reasonably practicable, then the matter should be raised with the judge and the respondent at the earliest opportunity.

Paragraph 13 of the Practice Direction sets out further requirements for Application Notices, including the important requirement that it must contain a prominent notice warning the respondent of the possible consequences of a committal order being made.

Articles 6(3)(b)-(e) of the ECHR    

Paragraph 15.6 of PD 81 states that in dealing with a committal application the court will have regard to the need for the respondent to be:

1. allowed a reasonable time for responding to the committal application including, if necessary, preparing a defence;

2. made aware of the possible availability of criminal legal aid and how to contact the Legal Aid Agency;

3. given the opportunity, if unrepresented, to obtain legal advice; and

4. if unable to understand English, allowed to make arrangements, seeking the assistance of the court if necessary, for an interpreter to attend the hearing

It is sometimes difficult to know where the dividing line lies between dealing with a contempt matter expeditiously and at proportionate cost and on the other hand allowing a respondent a fair opportunity to prepare and present his or her defence. This was demonstrated by the well-known recent decision of Brown v. Haringey [2015] EWCA Civ 483. In this case the Court of Appeal quashed a committal order on various grounds including the ground that the judge had failed to afford the respondent an adequate opportunity to obtain legal representation. Matters had not been helped by the legal aid legislation being, in the words of McCombe L.J. at [3], “disgracefully complex”.

CPR 1.3 imposes on parties to litigation a duty to help the court further the overriding objective of dealing with cases justly and at proportionate cost. In order to be in a position to assist, it is advisable for all applicants (no less than respondents) to be aware of the Guidance for legal aid in Civil Contempt - Committal Proceedings (published shortly after Brown and available here), and also as to the whereabouts of firms likely to be able to assist any respondent who desires representation. The prompt appointment of a competent representative in my experience often serves to narrow the issues and save much time and cost all round.

Toby Huggins specialises in anti-social behaviour law and is a member of the landlord and tenant team at Unity Street Chambers, Bristol. He can be contacted on 0117 906 9789 or This email address is being protected from spambots. You need JavaScript enabled to view it..

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