PRACTICE DIRECTION 37A – APPLICATIONS AND PROCEEDINGS IN RELATION TO CONTEMPT OF COURT

PRACTICE DIRECTION 37A – APPLICATIONS AND PROCEEDINGS IN RELATION TO CONTEMPT OF COURT

This Practice Direction supplements FPR Part 37

CHAPTER 2 OF PART 37 – Committal for breach of a judgment, order or undertaking to do or abstain from doing an act

Requirement for a penal notice on judgments and orders – form of penal notice – Rule 37.9

1.1

A judgment or order which restrains a party from doing an act or requires an act to be done must, if disobedience is to be dealt with by proceedings for contempt of court, have a penal notice endorsed on it 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.”.

1.2

Where an order referred to in rule 37.9(3)(a) or (b) is to be endorsed with or have incorporated in it a penal notice in accordance with rule 37.9(3), the notice must be in the words set out in paragraph 1.1 of the Practice Direction, or words to substantially the same effect.

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Requirement for a penal notice on judgments and orders – undertakings – Rule 37.9

2.1

Subject to rule 37.9(2) (which covers the case where the undertaking is contained in an order or judgment), the form of an undertaking to do or abstain from doing any act must be endorsed with a notice setting out the consequences of disobedience as follows (or in words to substantially the same effect) –

“You may be held to be in contempt of court and imprisoned or fined, or your assets may be seized, if you break the promises that you have given to the court.”.

2.2

The court may decline to –

(1) accept an undertaking; and

(2) deal with disobedience in respect of an undertaking by contempt of court proceedings,

unless the party giving the undertaking has made a signed statement to the effect that that party understands the terms of the undertaking and the consequences of failure to comply with it, as follows (or in words to substantially the same effect) –

“I understand the undertaking that I have given and that if I break any of my promises to the court I may be sent to prison, or fined, or my assets may be seized, for contempt of court.”.

2.3

The statement need not be given before the court in person. It may be endorsed on the court copy of the undertaking or may be filed in a separate document such as a letter.

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CHAPTER 3 OF PART 37 – Contempt in the face of the court

Committal for contempt in the face of the court – Rule 37.12

3.1

Where the committal proceedings relate to a contempt in the face of the court the matters referred to in paragraph 4.3 should be given particular attention. Normally, it will be appropriate to defer consideration of the respondent's actions and behaviour to allow the respondent time to reflect on what has occurred. The time needed for the following procedures should allow such a period of reflection.

3.2

The use of the Part 18 procedure is not required for contempt falling under Chapter 3 of Part 37, but other provisions of this Practice Direction should be applied, as necessary, or adapted to the circumstances.

3.3

The judge should –

(1) tell the respondent of the possible penalty that the respondent faces;

(2) inform the respondent in detail, and preferably in writing, of the actions and behaviour of the respondent which have given rise to the committal application;

(3) if the judge considers that an apology would remove the need for the committal application, tell the respondent;

(4) have regard to the need for the respondent to be –

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

(b) made aware of the possible availability of criminal legal aid and how to contact the Legal Aid Agency;

(c) given the opportunity, if unrepresented, to obtain legal advice;

(d) if unable to understand English, allowed to make arrangements, seeking the court's assistance if necessary, for an interpreter to attend the hearing; and

(e) brought back before the court for the committal application to be heard within a reasonable time;

(5) allow the respondent an opportunity to –

(a) apologise to the court;

(b) explain the respondent's actions and behaviour; and

(c) if the contempt is proved, to address the court on the penalty to be imposed on the respondent; and

(6) where appropriate, nominate a suitable person to give the respondent the information. (It is likely to be appropriate to nominate a person where the effective communication of information by the judge to the respondent was not possible when the incident occurred.)

3.4

If there is a risk of the appearance of bias, the judge should ask another judge to hear the committal application.

3.5

Where the committal application is to be heard by another judge, a written statement by the judge before whom the actions and behaviour of the respondent which have given rise to the committal application took place may be admitted as evidence of those actions and behaviour.

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CHAPTER 5 OF PART 37 – Committal for making a false statement of truth

Committal application in relation to a false statement of truth – Rule 37.17

4.1

Rules 37.17(1)(b) and 37.17(2)(b) provide that a committal application may be made by the Attorney General. However, the Attorney General prefers a request that comes from the court to one made direct by a party to the proceedings in which the alleged contempt occurred without prior consideration by the court. A request to the Attorney General is not a way of appealing against, or reviewing, the decision of the judge.

4.2

Where the permission of the court is sought under rule 37.17(1)(a) or 37.17(2)(a) so that rule 37.15 is applied by rule 37.17(3), the affidavit evidence in support of the application must –

(1) identify the statement said to be false;

(2) explain –

(a) why it is false; and

(b) why the maker knew the statement to be false at the time it was made; and

(3) explain why contempt proceedings would be appropriate in the light of the overriding objective in Part 1.

4.3

The court may –

(1) exercise any of its powers under the rules (including the power to give directions under rule 37.15(6));

(2) initiate steps to consider if there is a contempt of court and, where there is, to punish it; or

(3) as provided by rule 37.17(4), direct that the matter be referred to the Attorney General with a request to consider whether to bring proceedings for contempt of court.

4.4

A request to the Attorney General to consider whether to bring proceedings for contempt of court must be made in writing and sent to the Attorney General's Office at 20 Victoria Street, London, SW1H 0NF.

4.5

A request to the Attorney General must be accompanied by a copy of any order directing that the matter be referred to the Attorney General and must –

(1) identify the statement said to be false;

(2) explain –

(a) why it is false; and

(b) why the maker knew the statement to be false at the time it was made; and

(3) explain why contempt proceedings would be appropriate in the light of the overriding objective in Part 1.

4.6

Once the applicant receives the result of the request to the Attorney General, the applicant must send a copy of it to the court that will deal with the committal application, and the court will give such directions as it sees fit.

4.7

The rules do not change the law of contempt or introduce new categories of contempt. A person applying to commence such proceedings should consider whether the incident complained of does amount to contempt of court and whether such proceedings would further the overriding objective in Part 1.

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CHAPTER 6 OF PART 37 – Writ of sequestration to enforce a judgment, order or undertaking

Requirement for a penal notice on judgments and orders – form of penal notice – Rule 37.24

5.

Paragraphs 1 and 2.1 to 2.3 apply to judgments and orders to be enforced by a writ of sequestration.

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Levying execution on certain days

6.

Unless the court orders otherwise, a writ of sequestration to enforce a judgment, order or undertaking must not be executed on a Sunday, Good Friday or Christmas Day.

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CHAPTER 7 OF PART 37 – General rules about committal applications, orders for committal and writs of sequestration

General rules

7.1

Subject to paragraph 7.2, this Section of the Practice Direction applies in relation to all matters covered by Part 37.

7.2

Where there is a conflict between the provisions in this Section of the Practice Direction and specific provisions elsewhere in this Practice Direction or in Part 37, the specific provisions prevail.

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Human rights

8.1

In all cases the Convention rights of those involved should particularly be borne in mind. 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.

(Section 1 of the Human Rights Act 1998 defines ‘the Convention rights’.)

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General rules about applications: applications which cannot be made without permission

9.

If the committal application is one which cannot be made without permission –

(1) the permission may only be granted by a judge who would have power to hear the committal application if permission were granted;

(2) the date on which and the name of the judge by whom the requisite permission was granted must be stated on the application notice by which the committal application is commenced;

(3) the application notice may not be issued or filed until the requisite permission has been granted; and

(4) Rules 18.10 and 18.11 do not apply.

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General rules about applications: using Part 18 procedure

10.1

Where the application is made using the Part 18 procedure in existing proceedings, the application notice must state that the application is made in the proceedings in question, and its title and reference number must correspond with the title and reference number of those proceedings.

10.2

If the application for permission to make a committal application or the committal application is commenced by the filing of an application notice –

(1) Part 18 will apply subject to the provisions of Part 37 and this Practice Direction, in particular sub-paragraphs (2) to (4);

(2) an amendment to the application notice may be made with the permission of the court but not otherwise;

(3) the court may not dispose of the application without a hearing; and

(4) the application notice must contain a prominent notice stating the possible consequences of the court making a committal order and of the respondent not attending the hearing. A form of notice which may be used is annexed to this Practice Direction.

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Evidence and information

11.1

Written evidence in support of or in opposition to a committal application must be given by affidavit.

11.2

Written evidence served in support of or in opposition to a committal application must, unless the court otherwise directs, be filed.

11.3

The following rules do not apply to committal applications –

(1) rule 25.11 (Court's power to direct that evidence is to be given by a single joint expert);

(2) rule 25.12 (Instructions to single joint expert); and

(3) rule 25.13 (Power of court to direct a party to provide information).

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The hearing – Rule 37.27

12.1

When issuing or filing the application notice for a committal application, the applicant must obtain from the court a date for the hearing of the committal application.

12.2

Unless the court otherwise directs, the hearing date of a committal application must not be less than 14 days after service of the application notice on the respondent. The hearing date must be specified in the application notice or in a Notice of Hearing attached to and served with the application notice.

12.3

The court may on the hearing date –

(1) give case management directions with a view to a hearing of the committal application on a future date; or

(2) if the committal application is ready to be heard, proceed to hear it.

12.4

In dealing with any committal application, the court will have regard to the need for the respondent to have details of the alleged acts of contempt and the opportunity to respond to the committal application.

12.5

The court will also 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.

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Striking out, procedural defects and discontinuance

13.1

On application by the respondent or on its own initiative, the court may strike out a committal application if it appears to the court –

(1) that the application and the evidence served in support of it disclose no reasonable ground for alleging that the respondent is guilty of a contempt of court;

(2) that the application is an abuse of the court's process or, if made in existing proceedings, is otherwise likely to obstruct the just disposal of those proceedings; or

(3) that there has been a failure to comply with a rule, practice direction or court order.

13.2

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.

13.3

A committal application may not be discontinued without the permission of the court.

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Annex (Paragraph) 10.2(4)

Form of penal notice to be included on committal applications

IMPORTANT NOTICE

The Court has power to send you to prison, to fine you or seize your assets if it finds that any of the allegations made against you are true and amount to a contempt of court. You must attend court on the date shown on the front of this form. It is in your own interest to do so. You should bring with you any witnesses and documents which you think will help you put your side of the case. If you consider the allegations are not true you must tell the court why. If it is established that they are true, you must tell the court of any good reason why they do not amount to a contempt of court, or, if they do, why you should not be punished. If you need advice, you should show this document at once to your solicitor or go to a Citizens' Advice Bureau or similar organisation.

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