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Contempt proceedings for breach of a court order or undertaking can be time-consuming, expensive, and ineffective in encouraging ongoing compliance, particularly in commercial litigation. In July 2024, the Law Commission of England and Wales published a consultation paper on contempt of court which considers these concerns, and the consultation is currently open for responses.
This article explains the Law Commission’s provisional proposals for a suite of interim coercive remedies that would be available to the courts in such cases, making for a quicker, easier, and more effective regime.
Under the existing law, contempt proceedings can be brought against a person or company for breaching a court order or undertaking by which they are bound. The criminal standard of proof applies, so the elements of contempt must be proved beyond reasonable doubt. Once the court makes a finding of contempt, it can impose sanctions with the aim of securing compliance with the order and/or punishing the defendant for non-compliance. In its consultation paper, the Commission identifies two key problems with the existing approach.
First, the fact that the court may only award a remedy to encourage compliance with an order or undertaking after contempt has been proven means there is little incentive to comply until then. Stakeholders told the Commission that in practice contemnors often refuse to comply with an order until the final moments before a contempt application (or finding) is made.
Secondly, the Commission observes that contempt proceedings are often weaponised, especially in commercial litigation, and are ‘an increasingly time-consuming and expensive form of satellite litigation.’ The Commission thus concludes that the existing contempt regime ‘is not always an effective tool for encouraging prompt and ongoing compliance’ and that contempt proceedings are (and should be) a last resort.
Courts have various measures available to them to deal with a party that is engaging in unreasonable conduct – for example, a court may order that a party be debarred from participating in proceedings or that costs be assessed on an ‘indemnity’ basis. However, the Commission considers that these ‘remain fundamentally punitive in nature, and do not necessarily serve to ensure compliance (save in the threat).’ Consequently, reliance on such measures does not resolve the problems identified above.
In its consultation paper, the Commission provisionally proposes to resolve these problems by making available to the courts a range of interim remedies to compel compliance with court orders and undertakings without having to engage in full contempt proceedings. The Commission proposes that such remedies should include: payment by the defendant of a sum of money into court, either by way of deposit or periodic payment; sequestration of the defendant’s assets; or impounding a passport or other documents. If the defendant then complies with the order or undertaking, the money, property or passport would be released and returned. The award of an interim remedy would not preclude a subsequent application for contempt proceedings.
An interim remedy would not require the court to make a finding of contempt. Rather, it would be available where the court is satisfied on the balance of probabilities (rather than beyond reasonable doubt) that the elements of contempt by breach of order or undertaking have been established. Under the Commission’s proposed framework for liability, the court thus would need to be satisfied that:
Given that an interim remedy in this context would serve a coercive (rather than punitive) purpose, it should only be awarded where the effect of ongoing non-compliance can be remedied by subsequent compliance. The Commission explains that where the effect of non-compliance causes ‘material detriment, or where it is no longer possible meaningfully to comply, then it may be right that full contempt proceedings be initiated’ to reflect the serious interference with the administration of justice.
For example, a person who leaves the jurisdiction in defiance of a court order could subsequently return without any party having suffered detriment. By contrast, where confidential material is published in breach of an order, the damage has been done and cannot be undone. In that case, an interim remedy that seeks to coerce the publisher to take down the material would serve little or no purpose.
The rationale for requiring a lower standard of proof for an interim remedy than for contempt is that the objective of empowering the courts to order interim remedies is ‘to allow for a regime that demands less court time and is less expensive than applications for contempt.’ The Commission provisionally concludes that this objective would not be achieved by a regime that requires the elements of contempt to be proved beyond reasonable doubt (albeit without a formal finding of contempt).
Nor would it be appropriate to require proof to the standard normally applied to interim remedies – namely that there is ‘a good arguable case’ – which is lower than the balance of probabilities. The Commission explains that interim remedies in other contexts (such as freezing injunctions) serve a different purpose to interim remedies in the context of contempt proceedings. In the former, interim remedies serve to maintain the status quo pending the outcome of litigation; in the latter, they would serve to coerce compliance. Consequently, in the context of contempt proceedings they must be sufficiently serious to compel compliance where a party has already failed to comply and thus ‘ought not to be imposed lightly.’ A higher standard of proof than ‘a good arguable case’ is therefore necessary.
The Commission’s proposals for an interim coercive remedies regime would provide the courts with a quicker and less burdensome way to encourage compliance with an order or undertaking than the current law, ultimately draining fewer of the courts’ and parties’ resources.
The Commission is seeking views from practitioners and the public on these proposals, which will be used to inform the development of final recommendations for reform. The consultation closes on 8 November 2024. Information about how to respond to the consultation can be found on the Commission’s website.
Contempt proceedings for breach of a court order or undertaking can be time-consuming, expensive, and ineffective in encouraging ongoing compliance, particularly in commercial litigation. In July 2024, the Law Commission of England and Wales published a consultation paper on contempt of court which considers these concerns, and the consultation is currently open for responses.
This article explains the Law Commission’s provisional proposals for a suite of interim coercive remedies that would be available to the courts in such cases, making for a quicker, easier, and more effective regime.
Under the existing law, contempt proceedings can be brought against a person or company for breaching a court order or undertaking by which they are bound. The criminal standard of proof applies, so the elements of contempt must be proved beyond reasonable doubt. Once the court makes a finding of contempt, it can impose sanctions with the aim of securing compliance with the order and/or punishing the defendant for non-compliance. In its consultation paper, the Commission identifies two key problems with the existing approach.
First, the fact that the court may only award a remedy to encourage compliance with an order or undertaking after contempt has been proven means there is little incentive to comply until then. Stakeholders told the Commission that in practice contemnors often refuse to comply with an order until the final moments before a contempt application (or finding) is made.
Secondly, the Commission observes that contempt proceedings are often weaponised, especially in commercial litigation, and are ‘an increasingly time-consuming and expensive form of satellite litigation.’ The Commission thus concludes that the existing contempt regime ‘is not always an effective tool for encouraging prompt and ongoing compliance’ and that contempt proceedings are (and should be) a last resort.
Courts have various measures available to them to deal with a party that is engaging in unreasonable conduct – for example, a court may order that a party be debarred from participating in proceedings or that costs be assessed on an ‘indemnity’ basis. However, the Commission considers that these ‘remain fundamentally punitive in nature, and do not necessarily serve to ensure compliance (save in the threat).’ Consequently, reliance on such measures does not resolve the problems identified above.
In its consultation paper, the Commission provisionally proposes to resolve these problems by making available to the courts a range of interim remedies to compel compliance with court orders and undertakings without having to engage in full contempt proceedings. The Commission proposes that such remedies should include: payment by the defendant of a sum of money into court, either by way of deposit or periodic payment; sequestration of the defendant’s assets; or impounding a passport or other documents. If the defendant then complies with the order or undertaking, the money, property or passport would be released and returned. The award of an interim remedy would not preclude a subsequent application for contempt proceedings.
An interim remedy would not require the court to make a finding of contempt. Rather, it would be available where the court is satisfied on the balance of probabilities (rather than beyond reasonable doubt) that the elements of contempt by breach of order or undertaking have been established. Under the Commission’s proposed framework for liability, the court thus would need to be satisfied that:
Given that an interim remedy in this context would serve a coercive (rather than punitive) purpose, it should only be awarded where the effect of ongoing non-compliance can be remedied by subsequent compliance. The Commission explains that where the effect of non-compliance causes ‘material detriment, or where it is no longer possible meaningfully to comply, then it may be right that full contempt proceedings be initiated’ to reflect the serious interference with the administration of justice.
For example, a person who leaves the jurisdiction in defiance of a court order could subsequently return without any party having suffered detriment. By contrast, where confidential material is published in breach of an order, the damage has been done and cannot be undone. In that case, an interim remedy that seeks to coerce the publisher to take down the material would serve little or no purpose.
The rationale for requiring a lower standard of proof for an interim remedy than for contempt is that the objective of empowering the courts to order interim remedies is ‘to allow for a regime that demands less court time and is less expensive than applications for contempt.’ The Commission provisionally concludes that this objective would not be achieved by a regime that requires the elements of contempt to be proved beyond reasonable doubt (albeit without a formal finding of contempt).
Nor would it be appropriate to require proof to the standard normally applied to interim remedies – namely that there is ‘a good arguable case’ – which is lower than the balance of probabilities. The Commission explains that interim remedies in other contexts (such as freezing injunctions) serve a different purpose to interim remedies in the context of contempt proceedings. In the former, interim remedies serve to maintain the status quo pending the outcome of litigation; in the latter, they would serve to coerce compliance. Consequently, in the context of contempt proceedings they must be sufficiently serious to compel compliance where a party has already failed to comply and thus ‘ought not to be imposed lightly.’ A higher standard of proof than ‘a good arguable case’ is therefore necessary.
The Commission’s proposals for an interim coercive remedies regime would provide the courts with a quicker and less burdensome way to encourage compliance with an order or undertaking than the current law, ultimately draining fewer of the courts’ and parties’ resources.
The Commission is seeking views from practitioners and the public on these proposals, which will be used to inform the development of final recommendations for reform. The consultation closes on 8 November 2024. Information about how to respond to the consultation can be found on the Commission’s website.
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