civil contempt of court

Civil contempt is a misdemeanour at common law. In civil contempt proceedings the court is concerned with ensuring obedience to an order made by the court and/or undertakings given by litigants to the court. When a person acts contrary to the terms of an injunction or does not comply with an undertaking given to the court, that person is in "contempt of court". This expression is a misnomer, as a person may be in contempt of court notwithstanding that he has used his best endeavours to comply with the order and displayed nothing but respect for the terms of the order and the authority of the court.

Burden of Proof

Proceedings for contempt attract the criminal standard of proof, namely that allegations that the defendant committed the acts complained of must be proved beyond a reasonable doubt. In addition, it should be beyond all question that the acts said to constitute a breach of the relevant injunction or undertaking to do so were done.

Civil courts usually wait for the outcome of criminal proceedings prior to hearing disputes based on the same or similar facts. Proceedings for civil contempt is an exception to that general rule, other than in cases where hearing contempt proceedings would present a real risk of serious prejudice to the outcome of the criminal proceedings.

Requirements for Contempt of Court

It is a contempt of court to knowingly act or fail to act, even if the contemnor honestly did not realise that the act was a breach or even honestly thought it was in compliance with the Court Order. Persons named in court orders have an obligation to comply strictly with the terms of injunctions. Courts will punish a person for contempt where it is shown:

1. The terms of the injunction are clear and unambiguous.

   The order must set out precisely what was to be done and by whom it was to be done (if a mandatory injunction), or what the person was to refrain from doing (if the injunction is prohibitory in nature) and thus define the obligations required to be performed.

   In cases where a person seeks to subvert the purpose of the order, the Court is not limited to the meaning of the strict terms of the order. The purpose of interim injunctions is to regulate, and where possible to preserve, the rights of the parties pending the final determination of the dispute which is in issue by the court. By granting an injunction in the first instance, the court would have been satisfied that there is a serious question to be tried, notwithstanding that it remains in a position where it is not able to make final determination of the parties’ rights and liabilities until the trial. Thus the "purpose" of court orders in this context does not refer to the litigant's purpose in obtaining the order or the purpose of fighting the action, but to the Court's purpose. By making its Orders, the court intends to administer justice between the parties in the particular litigation. An order is likely to be clear when it does not require cross-referencing to any other document and breaches of it may be clearly stated. There is no scope to imply terms into an injunction.

2. The particular defendant in the contempt proceedings had proper notice of the terms of the Order, or knew of the Order. Ordinarily a copy of an Order must be served personally on the person required to do or refrain from doing a specified act. However where an Order is prohibitory (as opposed to mandatory), actual notice of the injunction may be sufficient rather than formal service.

3. The defendant acted or failed to act in a manner which involved a breach of the Order. It is not required to show that the alleged contemnor had done so in the belief that what he did was a breach of the Order.
4. The defendant knew of the facts which made his conduct a breach. Again, it is not necessary to show that the defendant to a contempt application appreciated that what he was doing was a breach of the court order and intended to breach it.

Companies and other legal entities which are incorporated can only act through natural persons - that is, individuals. It is no defence for a company to prove that an employee who carried out the offending act was acting contrary to orders and had not been properly trained, supervised and/or monitored. If the company proves that it took every reasonable precaution but its employee nonetheless caused a breach of the order, the employer's actions go to mitigation of the penalty, but it is not a defence to liability for contempt.

Liability of Third Parties

Court orders ordinarily bind only the parties to the action. However third parties may be guilty of contempt if they know of the Order and aid and abet the defendant to disobey the terms of the order or otherwise do an act that obstructs or frustrates the object of the Court Order and is a criminal contempt. Such liability requires (a) knowledge of the order, and (b) the doing of some act.

In the event that an Order is not complied with by a person named in the order, it may be enforced by the following means:

1. with the permission of the court, a writ of sequestration against the property of that person;
2. where that person is a company, by a writ of sequestration against the property of any director or other officer of the company; and/or
3. an order of committal against that person or, where it is a company against any officer of the company, subject to the provisions of the Debtors Act 1869 and 1878.

Failures to comply with orders of Courts by those named in the order give rise to civil contempt. Where a person or company has been restrained by injunction from doing some act, and then proceeds to do that act, it is no defence to say that the person or company did not intend to do that act or otherwise did not have any intention to disobey the order of the court. In this sense, liability for contempt is strict – that is, the intention or motive of the contemnor is irrelevant.

Undertakings to the Court

Undertakings are promises given by litigants to courts and assume the status of injunctions. They are given to the court by litigants in order to obtain, inter alia, interim relief, such as the cross-undertaking as to damages. In the case of Court Orders containing the terms of an undertaking given to the court, personal service may not be required as it is the person’s own act which puts them on notice that undertakings have been given. Having said this, undertakings should be recorded in the recitals to the order, and the order sealed by the court served on the respondent and be accompanied by a Penal Notice.

Service

In cases of urgency, the court may give permission to dispense with rigour required by personal service and order that service be effective by any of telephone, facsimile or email of the terms of the injunction. In the case of a corporate respondent, service upon solicitors is likely to be adequate, as solicitors are agents for their clients. If the applicant seeks to enforce the order against an officer of the company (which includes directors), the order personal service must be effected served on the officer or director, unless the same has been dispensed with by the court.

In the case of mandatory injunctions, the order must be served before the time required to perform the acts specified in the injunction.

It is no defence for the respondent to say that they did not read the order.

Process

This jurisdiction of Courts is exercised rarely. Prior to committal or sequestration, the Court may conduct a search for alternative means of obtaining compliance with the order, rather than immediately ordering that the contemnor be committed or property made the subject of a writ of sequestration. Furthermore, courts have cited circumstances to avoid committal to prison or issuing writs of sequestration orders. For instance, such has been avoided where:

1. in the case of a mandatory injunction or undertaking which requires positive action by a person which has not complied with the order, the Court may direct that another person perform the act required at the expense of the person disobeying the order or undertaking.
2. sequestration of assets aversely affects the livelihoods of innocent persons, in circumstances where the relief sought against the contemnor was disproportionate to the potential harm which may be caused to the claimant;
3. the time for compliance with a mandatory injunction may be extended;
4. requiring attendance of witnesses at Court to give evidence to ascertain circumstances of the contempt;
5. identifying a more practical solution in the circumstances;
6. an opportunity has not been given to the respondent to mend his ways and purge the contempt;
7. allow time for compliance before a writ of sequestration or custodial term comes into effect, rather than being of immediate effect.

The jurisdiction is not exercised lightly by courts. Strategic applications in litigation or applications for technical or trivial breaches of court orders in circumstances where the respondent has done his best to comply with the order of the court are likely to not be looked upon kindly and be may be dismissed with eye-watering costs orders against the applicant.

Standing to Sue

The Attorney-General as the first Law Officer of the Crown and guardian of the public interest may take in interest commencing proceedings for civil contempt against those disobeying or challenging the authority of the Courts. Individual litigants are also able to commence proceedings for contempt against a person who fails to comply with Orders. These proceedings are not geared however to provide compensation to a litigant, but rather coerce compliance with the orders of the court. Compensation for disobedience with orders is available by other means.

Judges themselves also have power to initiate contempt proceedings, however this jurisdiction should be exercised rarely and only in the most extreme of cases, where the contempt is clear, flagrant and as a last resort. The Court will also have regard to the extent that it has become a matter of public concern and the quasi-criminal nature of contempt proceedings.

Purging Contempts

It is general practice of Courts that contemnors will not be heard for the purposes of advancing his own case unless and until his contempt has been purged - that is, he realised the error of his ways and complied with the Order or done his best to do so. Accordingly, a contemnor is prevented from defending himself in the proceedings until the contempt is expunged. There are limited exceptions to the practice, and the Court maintains a discretion to hear (1) applications to purge the contempt; (2) applications to set aside the order which placed him in contempt in the first instance, and (3) appealing against an order for want of jurisdiction by the Court.

Mitigation

Having regard for the strict liability of contempt of court, once an injunction has been breached in any significant sense, a Court will turn its mind to matters of mitigation. One of the matters likely to be of importance are the circumstances in which the contempt took place. For instance, it may be the acts did not take place in circumstances defying the authority of the Court or may have been casual, accidental or unintentional disobedience. Legal advice as to whether or not certain conduct would or would not be in breach of orders which is not recorded in writing is given no weight (and no defence to the strict liability of contempt in the first place). Factual background to the contempt is adduced in the form of an affidavit at the hearing.

Concurrent Liability for Contempt and Criminal Acts

Civil contempt is primarily concerned with the disobedience of the Court Order in question, and not with any criminal act perpetrated to place the accused in breach of the Court Order. Accordingly, the contempt is punished separately to any associated criminal act, which would be tried in a criminal court. Moreover, the acts or omissions placing the defendant in breach of the order may give rise to both civil contempt and criminal contempt, which may be pursued separately.