SORRY SEEMS TO BE THE HARDEST WORD: PURGING CONTEMPT OF COURT

There is a section in the Court of Appeal judgment in James v James [2018] EWCA Civ 1982  that is of some importance. It relates to the question of whether a party should appeal an order for contempt or apply to purge that contempt. Anyone instructed in a case where a party is sentenced for contempt of court should be aware of the right to apply to purge that contempt and the relevant rule.

THE CASE

The defendant had been sentenced to six months imprisonment for contempt of court.  The defendant appealed to the Court of Appeal.

NO APPLICATION TO PURGE CONTEMPT

Lord Justice Bean was surprised that there had been no application by the defendant to purge her contempt of ocurt.

  1. The appellant did not apply to the court to purge her contempt. For my part, I find that startling, particularly if, as I am told is the case, a representation order was made or notice of acting was given by her present solicitors by 18 July. At any rate it was not until 3 August, 21 days from the hearing of the 13 July, that a notice of appeal, which of course is as of right, was lodged in this court. An application to purge the contempt could no doubt have come on much more quickly and it is not clear why the notice of appeal took three weeks to draft. At all events, it is now before us.

THE RULES

The rules in applying to purge contempt are dealt with CPR 81.31 –

Discharge of a person in custody.

(1) A person committed to prison for contempt of court may apply to the court to be discharged.

(2) The application must –

(a) be in writing and attested by the governor of the prison (or any other officer of the prison not below the rank of principal officer);

(b) show that the person committed to prison for contempt has purged, or wishes to purge, the contempt; and

(c) be served on the person (if any) at whose instance the warrant of committal was issued at least one day before the application is made.

THE RELEVANT PRINCIPLES

The principles were reviewed by His Honour Judge Simon Barker QC (sitting as a High Court Judge) in  Re Contempt of Court Act 1981 (No. 2) [2011] EWHC 1865 (Ch).

The first thing to note is that a judge is unlikely to be impressed by a formulaic approach.
    1. On 8.7.11, S’s solicitors notified the Court of Appeal that his appeal would not be progressed and that S would instead apply to me to purge his contempt.
S’s application to purge his contempt
    1. By an affidavit dated 5.7.11, made with the assistance of HM Prison Service’s Legal Services, S states his wish to purge his contempt.
    2. The affidavit is in the following terms :
“I wish to purge my contempt and to be released from prison.
I humbly apologise to this Honourable Court for breaking the Order and I undertake to comply in the future.
I solemnly promise that I will not breach any further Order the Court may make, or the Order now in existence.
I realise the Order must be obeyed.
I have learned my lesson.
I understand that I shall be liable to be sent to prison again if I fail to comply with any further Order that might be made by the Court.
I ask the Court to accept my apologies and allow me to be released”.
  1. Without wishing to be unduly pedantic, this text, which appears to me to be in a standard form, is inapposite for the contempts committed by S. S did not disobey or fail to comply with an order.
  2. However, reading between the lines, there is a recognition that the due administration of justice and the rule of law are not to be disregarded, an expression of regret and remorse for the conduct which gave rise to the committal, a recognition that repetition will be likely to lead to further imprisonment, and an expression of desire to atone and have the slate wiped clean.

THE PRINCIPLES

The judge considered the rules (prior to the drafting of CPR 81. e Civil Procedure Rules), however similar principles apply. It is clear that saying “sorry” is not enough.

Purging Contempt ~ Principles
  1. A committal order is an order of last resort; in the context of civil proceedings,  it is also draconian. It should only be made where, having regard to all the circumstances, it is absolutely necessary.
    1. By way of temper, a contemnor has an unqualified right to apply to the court to purge his/her contempt and seek an order for immediate release. This is not a ‘once only’ right, rather it is a continuing right running throughout the duration of the sentence.
    2. The origins of this right appear to be twofold : (1) being rooted in the quasi-religious concepts of purification, expiation and atonement (Harris v Harris [2002] Fam 253, Thorpe LJ at paragraph 21); and, (2) prior to the coming into force of s.14 of the Contempt of Court Act 1981, being the means by which release from prison was secured following committal to prison for an unspecified period under common law (the ‘price’ of release being, as part of the purging, compliance with a mandatory order or a credible promise not to disobey a prohibitive order in the future).
    3. With these considerations in mind, a contemnor’s right to apply to purge his/her contempt became enshrined in a procedural rule, currently RSC Ord 52 Rule 8(1), now in the CPR Sch 1, which provides :
“The court may, on the application of any person committed to prison for any contempt of court, discharge him”.
    1. There are only three possible outcomes of an application to purge and obtain release : (1) immediate release, (2) deferred release at a stated future date, or (3) refusal of the application (Harris, Thorpe LJ at paragraph 21, after citing at paragraph 17 and following Delaney v Delaney [1996] QB 387, Sir Thomas Bingham MR at pages 400-1).
    2. Although the court may impose a suspended order of committal (see RSC Ord. 52 Rule 7(1)), on an application to purge it may not vary its sentence so as to suspend, for any period, the unexpired term of the sentence. There are two principal reasons for this : (1) clarity and certainty as to the powers of the court and the rights of contemnors, and (2) overarching this, such a variation is more accurately characterised as the imposition of a fresh penalty, which is not lawful, rather than amelioration of the original penalty (Harris, Thorpe LJ at paragraphs 21-2).
    3. However, it is permissible to extract an undertaking as a condition of acceding to an application to purge (Harris, Thorpe LJ at paragraph 16).
    4. Before leaving the principles relevant to an application for release, I should also have in mind the judgment of Court of Appeal in Lightfoot v Lightfoot [1989] 1 FLR 414. In matrimonial proceedings, Mr L had defied a court order to pay redundancy and other money due to him into a solicitors’ joint account upon receipt, pending further order. Mr L received £30,000, paid all the money into his own account, withdrew £24,000, and claimed to have gambled that sum away. In the context of a committal application in the matrimonial proceedings, the first instance judge did not believe Mr L and, having regard to the flagrancy of the contempt, imposed an 18 month custodial sentence. Giving the judgment of a two judge court, Lord Donaldson MR, with whom Butler-Sloss LJ agreed, said at p.416H – 417C :
“… Sentences for contempt fall into two different categories. There is the purely punitive sentence where the contemnor is being punished for a breach of an order which has occurred but which was a once and for all breach. A common example, of course, is a non-molestation order where the respondent does molest the petitioner and that is an offence for which he has to be punished. In fixing the sentence there can well be an element of deterrence to deter him from doing it again and to deter others from doing it. That is one category.
There is a second category which I might describe as a coercive sentence where the contemnor has been ordered to do something and is refusing to do it. Of course, a sentence in that case has a punitive element since he has to be punished for having failed to do so up to the moment of the court hearing, but, nevertheless, it also has a coercive element”.
  1. The point that I notice in that extract, is the observation, in the context of a committal aimed at punishing the contemnor, that “In fixing the sentence there can well be an element of deterrence … to deter others from doing it”. Butler Sloss LJ agreed with Lord Donaldson MR’s judgment.
  2. In Delaney, the Court of Appeal (Sir Thomas Bingham MR, with whom Balcombe LJ agreed) emphasised, at p. 394C, that ” … the enforcement of orders is the prime object and the personal circumstances of the contemnor are a relatively minor consideration”.
  3. I also note that very recently, on 13.7.11, in (1) Edward Nield (2) Acromas Insurance Co Ltd v (1) Graham Loveday (2) Susan Loveday(Lawtel updates 14.7.11), the Disional Court (Sir Anthony May (President QB) and Keith J) imposed a 9 month immediate custodial sentence on GL for verifying, by statements of truth, false information in Particulars of Claim and a witness statement by which he exaggerated the basis for and value of a personal injuries claim. This sentence took into account that the dishonesty was unmasked before trial of the claim with the result that the action settled on terms whereby the costs paid by GL exceeded the amount of the agreed damages. Thus, before the committal proceedings, GL had lost rather than profited by his attempted deceit. However, throughout the committal proceedings and notwithstanding compelling evidence, GL had not admitted his contempt; moreover, before signing statements of truth GL’s solicitor had warned him and SL that the making of a false statement of truth might lead to imprisonment. By contrast, SL was afforded credit for admitting her contempt, in knowingly making a false statement of truth to verify a false witness statement, and she benefited from several good character references. SL was sentenced to 6 months imprisonment suspended for 18 months.

THE COURT’S APPROACH TO THE APPLICATION

Purging contempt ~ approach to the application

  1. The court should and will remind itself (1) of the principles and facts upon and by reference to which it considered and determined the original sentence; and, (2) that, on an application to purge following a contempt in the face of the court, the court should, as Mr Singh reminds me, consider afresh the sentence imposed with a view to deciding afresh whether it is absolutely necessary that the contemnor serves the remainder of the unexpired term. This must be done in the light of (a) the contemnor’s affidavit and/or oral evidence in support of the application to purge, (b) the contemnor having by then experienced prison, possibly for the first time, and the duration and circumstances of that experience, (c) the principles referred to above, and (d) any further facts and matters urged on the court during the hearing.