Despite various amendments over the years, many thought the wording of Part 81 was unsatisfactory, repetitive, and unnecessarily complicated. Following a consultation exercise by the Civil Procedure Rules Committee from March-May 2020, the committee proposed a new approach to Part 81 which:
- omitted nearly all the substantive law;
- dealt with procedure in the Rules, not Practice Directions;
- created a uniform procedural code;
- set out the applicable requirements in the Rules, not Practice Directions or Practice Guidance; and
- reduced the number of prescribed forms.
The full report can be found here.
With effect from 01 October 2020, Part 81 of the Civil Procedure Rules changed, committal proceedings were out (revoked, not replaced), and contempt proceedings were in. But what practical effect has this had on proceedings?
The Rules
The new contempt rules comprise just 10 rules with no Practice Directions, compared to the previous 38 rules, 2 Practice Directions and Practice Direction Guidance, which makes the new Part 81 much more user friendly than its predecessor.
Terminology has changed, parties to a contempt application are referred to as the “claimant” and the “defendant”, it is a contempt application (not a committal application), and the defendant is imprisoned pursuant to an order for committal (CPR 81.2).
CPR 81.3 details how to make a contempt application including the level of court in which the application is made and the level of judge who shall hear the application. Part 23 should be used for a contempt application within existing proceedings. Part 8 should be used where there has been an interference with the due administration of justice otherwise than in the course of existing proceedings.
The rules reduce the number of instances where permission is required. Permission to make a contempt application is required where an application is in relation to:
- interference with the due administration of justice, except in relation to existing High Court or county court proceedings; or
- an allegation of knowingly making a false statement in any affidavit, affirmation or other document verified by a statement of truth or in a disclosure statement.
The second limb in respect of permission, b. above, reflects the changes to the statement of truth that came into effect in April 2020.
CPR 81.4 is the cornerstone of the new rules and sets out the requirements of a contempt application in order to achieve procedural fairness. It is a very helpful checklist for practitioners and should be strictly abided to, noting the use of “must” throughout. Unless otherwise directed, applications must be supported by written evidence given by affidavit or affirmation (CPR 81.4(1)). Guidance on affidavit evidence can be found in CPR PD32.
Service of a contempt application is included within CPR 81.5. If the Defendant has a legal representative on the record in the proceedings in which, or in connection with which, an alleged contempt is committed, the application may be served upon the representative.
Under CPR 81.6 the court has the authority, of its own initiative, to consider whether to proceed against the defendant in contempt proceedings. If the court proceeds, it shall issue a summons to the defendant. The other parties to the proceedings may be required by the court to give such assistance to the court as is “proportionate and reasonable, having regard to the resources available to that party”.
CPR 81.8 details hearings and judgments in contempt proceedings. There is a general rule that proceedings shall be held in public, unless otherwise directed. Notably, advocates and the judge shall appear robed in all hearings of contempt proceedings and, regardless of whether the hearing is in public or private, the court shall sit in public to give a reasoned public judgment stating its findings and any punishment. Such changes point towards a renewed focus on the seriousness of contempt proceedings.
Transition Period
Part 81 is not subject to any transitional provisions. In the Secretary of State for Transport and anr v Cuciurean [2020] EWHC 2723 (Ch) the majority of proceedings were under the old Part 81 but judgment on liability was post-01 October 2020. It was held that procedural steps taken pre-01 October 2020 would be governed by the old Part 81 and any procedural steps taken from 01 October 2020 would be governed by the new Part 81. Where there was a clash of the rules between the old and new Part 81, the rule that applied was the one that was more beneficial to the defendant.
What Hasn’t Changed?
It is important to note that CPR 81.1(2) states “This Part does not alter the scope and extent of the jurisdiction of courts determining contempt proceedings, whether inherent, statutory or at common law” and CPR 81.1(3) states “This Part has effect subject to and to the extent that it is consistent with the substantive law of contempt of court”. The courts are, therefore, not prevented from looking at old authorities.
Nothing in the new Part 81 affects the line of authorities in respect of:
- the defendant is entitled to remain silent and is not a compellable witness (Re L (A Child) [2016] EWCA Civ 173);
- the court being required to protect the right in a. above (Hammerton v Hammerton [2007] EWCA Civ 248); and
- the defendant may serve evidence in advance of committal proceedings but may, until the last moment, choose not to deploy it. Until the evidence is deployed, it is inadmissible (Templeton Insurance v Motorcare Warranties [2012] EWHC 795 (Comm)).
New Forms
N600 – Contempt application
N601 – Summons under CPR 81.6(3)
N602 – Warrant to secure attendance at court under CPR 81.7(2)
N603 – Order on determination of proceedings for contempt of court under CPR 81.9
N604 – Warrant of committal under CPR 81.9
Conclusion
Overall, the changes to Part 81 are welcomed as the rules are more succinct and easier to follow.
Becket Chambers are experienced in providing advice on the merits of a contempt application, drafting a contempt application, and representing clients applying for and responding to contempt applications. If you require advice or assistance with a contempt matter, please contact us on 01227 786331 or clerks@becket-chambers.co.uk.
