2019 AND CIVIL PROCEDURE THE YEAR IN REVIEW: COMMITTAL PROCEEDINGS: “THE KANGAROO COURTS OF THE JUSTICE SYSTEM”

In January I wrote “I am starting to lose count of the number of times the Court of Appeal has overturned decisions committing people to prison because of very basic and fundamental failures of procedure.  It is as though all the strictures against fair hearings disappear when there are committal proceedings in the civil courts.” Regrettably 2019 produced further examples.  However the year ended more positively with confirmation that legal aid is available  civil committal proceedings (finding a lawyer, however, could be a more difficult task .

“There is something very fundamentally dangerous and wrong about the system operating for civil contempt of court. All the safeguards that defendants normally have appear to disappear and there is a danger that some judges are taking on the role of prosecutor and not adjudicator.”

JANUARY: THE YEAR STARTED BADLY…

 

In the judgment in Hughes Jarvis Ltd v Searle & Anor [2019] EWCA Civ the Court of Appeal robustly overturned a decision committing a witness to prison and striking out a case.  It was found that the trial judge had, in fact, no power to hear contempt proceedings and their actions in imprisoning the witness overnight, and then striking out the action were a “misuse of judicial power”

“When, as occasionally happens, an incident occurs during a trial which gives the trial judge cause for concern that the integrity of a witness’s evidence might have been compromised, a measured approach is called for. The aim should almost always be to investigate the facts as far as necessary but otherwise to complete the trial with as little interruption as possible, leaving any question of whether there has been a contempt of court or whether any further action is warranted to be considered at the end of the proceedings after judgment has been given”

“A misuse of judicial power”: A witness speaking to a lawyer in the course of giving evidence does not justify committal or striking out a case

Another example of procedure going badly awry can be found in Douherty v The Chief Constable of Essex Police [2019] EWCA Civ 55.

“The effect of these breaches, singularly and cumulatively, was to deprive the appellant of valuable safeguards the purpose of which is to ensure a fair hearing. The appellant did not receive such a hearing. As a result the order for committal must be quashed”

Another civil contempt of court overturned: breaches of requirement for a fair hearing meant order must be quashed.

FEBRUARY: COSTS OF COMMITTAL PROCEEDINGS WERE DISPROPORTIONATE AND WRONG

In Solanki v Intercity Telecom Ltd [2018] EWCA Civ 10 the court  the defendant’s appeal against the costs of a committal application.   The Court held that the costs, as assessed, appeared unreasonable and disproportionate.

“I have no doubt that, taking into account the chronology of this case, and the conduct of both the respondent and the appellant in relation to the contempt application, the judge’s order was wrong and contrary to the basic principle that costs in relation to a contempt application should be reasonable and proportionate, and not penal.”

Overturning the summary assessment of costs for a committal.

 

JUNE: AN APPLICATION FOR COMMITTAL WHEN THE RESPONDENT WAS NOT ACTUALLY IN BREACH OF THE ORDER

A constant, worrying, theme on this blog has been the need for (and funding of) representation of defendants in civil committal proceedings.  These concerns run alongside the many and manifest procedural errors that applicants (and sometimes judges) make when committal proceedings are underway.  An example of the need for representation is contained in the judgment of Mr Justice Macdonald in London Borough of Wandsworth v Lennard [2019] EWHC 1552 (Fam).   This case is important because it shows the highly technical nature of committal proceedings and also considers the appropriate approach for the court to take when construing an injunction.

London Borough of Wandsworth v Lennard [2019] EWHC 1552 (Fam)

Application to Commit refused because the defendant was not in breach of the order

 

A similar statement in relation to the need for procedural compliance was made by Mr Justice Warby in Quantum Tuning Ltd v White [2019] EWHC 1376 (QB) highlights some errors made in a committal application. Fortunately for the claimant in that case the procedural errors were overlooked and contempt established. Nevertheless there are points to watch.  A party applying for committal is best advised to follow the requirements to the letter.

“It proved less than ideal for the Particulars of Claim to stand in place of the Schedule required by CPR 81.10(3)(a), and I would not recommend such a practice in future.”

Procedural issues on committal applications: getting the procedure right

SEPTEMBER: STRICT PROCEDURAL RULES MUST BE COMPLIED WITH

Re M  [2019] EWCA Civ 1559

The Court of Appeal made it totally clear that the procedural requirements of committal proceedings have to be complied with.

“the consequences of the infringement of the procedural rules about contempt proceedings may be just as serious as the consequences of unauthorised disclosure of court documents.”

Committal Proceedings – Re M – the Full Judgment.

OCTOBER: COMMITTAL ORDER SET ASIDE BECAUSE DEFENDANT WAS NOT LEGALLY REPRESENTED

Civil Contempt: the kangaroo court of the justice system

In O (Committal: Legal Representation) [2019] EWCA Civ 1721 a committal order was set aside on the grounds that the respondent had not been legally represented.

 “The case is a reminder that respondents to committal proceedings are entitled to be provided with legal representation if they want it and that they will qualify for non-means-tested legal aid. There is an obligation on the court to ensure that this protection is made available. Where this does not happen any resulting order for committal may be procedurally irregular.”

Civil Committal Proceedings (yet again…)

In  Lakatamia v SU [2019] EWCA Civ 1626 the Court of Appeal refused an application for permission to appeal out of time in a case where the applicant had been committed to prison for contempt.  There had been a considerable delay in filing the notice of appeal against committal to prison.

Hysaj establishes that the absence of legal representation is not a good reason for a delay and that litigants in person, whether or not assisted by a McKenzie friend, are required to comply with the rules just as a legally represented party is.”

Denton applied to out of time applications in committal proceedings.

NOVEMBER: LEGAL AID IS DEFINITELY AVAILABLE

In November the judgment of Mr Justice Chamberlain in  The All England Lawn Tennis Club (Championships) Ltd v McKay (No. 2) [2019] EWHC 3065 (QB).

This confirmed that legal aid is available for committal proceedings in civil cases.

“Since May 2015, there has been a ‘clear established process’ for applications for legal aid in civil contempt proceedings (including High Court proceedings) in which the Director is the ‘relevant authority’. Applications are to be made using the CRM14 form, which is available on the LAA website or via its E-form portal. Such applications are processed by the National Crime Team in the LAA’s Nottingham office. The majority are processed within 48 hours of receipt and there is a facility to indicate that an application is urgent.”

Finding representation on legal aid rates is, however, difficult. This was addressed in

Committal proceedings: Legal aid is available without assessment of merits or means: but where does a respondent obtain representation (here I hope).

The earlier judgment in that case  The All England Lawn Tennis Club (Championships) Ltd & Anor v McKay [2019] EWHC 2901 (Admin) was considered in Court in the Middle?

Also in November it was confirmed that Committal Proceedings can be brought both in relation to pre-action witness statements, but also be amended to include false statements made in the course of the committal proceedings themselves, Jet 2 Holidays Ltd v Hughes & Anor [2019] EWCA Civ 185

Committal proceedings can be brought in relation to pre-action witness statements.