Changes to Civil Procedure Rule 81 – Contempt applications and proceedings
Joseph Warren • October 1, 2020
On 1 October 2020, Civil Procedure Rule 81 was completely replaced with new rules covering all contempt applications and proceedings. The aim of the Civil Procedure Rules Committee was to streamline the existing rules and make them more straightforward. That does have some consequences for applications for breach of Injunction. Some key point to note are:
- CPR 81 now sets out clearly what is needed in a contempt application in all circumstances.
- Any reference to ‘applicants’ and ‘respondents’ is replaced with ‘claimant’ and ‘defendant’.
- A Circuit Judge is to hear all applications. This is a change from the previous position where District Judges could hear contempt applications for breach of injunction for anti-social behaviour. We do not know if this is intentional. It could be subject to change when the full consequences are considered further and the amount of work this creates for Circuit Judges is considered. *[Please see update below in relation to element]*
- Several warnings/statements informing the defendant of their rights have to be included in the application for contempt, this includes (but is not limited to):
- A statement that the defendant has the right to be legally represented;
- A statement that the defendant is entitled to a reasonable time to obtain legal representation and apply for legal aid which may be available without any means test;
- A statement that the defendant may be entitled to the services of an interpreter;
- A statement that the defendant has the right to remain silent and to decline to answer any question where the answer to it may incriminate them;
- A statement that the court may proceed in the defendant’s absence if they do not attend.
- A statement that if the defendant admits the contempt and wishes to apologise to the court, that is likely to reduce the seriousness of any punishment by the court
- A statement that the court will sit in public, unless and to the extent the court orders otherwise, and that its findings will be made public.
- The rules also confirm that the Court has the power to issue a bench warrant to produce the defendant at any directions or substantive hearing.
- Evidence still needs to be by way of Affidavit, unless the Court rules otherwise. The new rule 81.4 does say the Court can order otherwise which is progress from the previous provision but a party will have to apply for permission for this.
- All advocates and Judges have to appear robed.
It should be noted there are no transitional arrangements between the old rules and these new rules. Accordingly, any on-going contempt proceedings need to be considered in light of the new rules and compliance with the new rules may now be needed.
New forms
There are also new Court forms to support these changes. In particular, there is a specific Contempt Application form (N600). This already includes all of the warnings/statements that have to be given to a defendant on making the application.
*UPDATE NOVEMBER 2020*
The issue regarding District Judges being unable to deal with breaches of Anti-Social Behaviour Inunctions by way of committal applications has now been addressed. When the Civil Procedure (Amendment No. 6) Rules 2020 come into force on 27 November 2020 it will allow District Judges to deal with such applications.
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Cobb Warren were recently successful in an appeal against the decision of a District Judge to refuse an application to include a positive requirement in an injunction pursuant to Part 1 of the Anti-social Behaviour, Crime and Policing Act 2014 ("the 2014 Act"). This took place in October in front of a Circuit Judge in the County Court at Bristol. Our client sought to include a provision requiring the respondent to engage with support services to help address the underlying causes of the anti-social behaviour the respondent engaged in. The District Judge at first instance refused the application on the basis that such an order would amount to an order of mandamus (orders of mandamus have, since 2004, been known as ‘mandatory orders’ - they are specific to public law matters) and therefore, pursuant to section 38 of the County Courts Act 1984. The District Judge said that the County Court lacked jurisdiction to make such an order. The appeal was argued on two points: 1. The order was not an order of mandamus (or mandatory order) as such orders are remedies in public law proceedings only and not private law proceedings; or 2. In any event, even if it were, the 2014 Act creates a separate statutory scheme which enables the County Court to include any positive requirements in an injunction in order to prevent the respondent from engaging in anti-social behaviour. The Circuit Judge hearing the appeal allowed the appeal on both grounds. In respects of the second ground, we advanced an argument that the decision in Swindon Borough Council v Abrook [2024] EWCA Civ 221 supported the ground as: 1. The Court of Appeal determined that the Court’s usual case management powers to vary or set aside an order of its own volition did not apply to injunctions under the 2014 Act. This was therefore indicative of the 2014 Act creating its own statutory scheme. 2. The Court of Appeal was considering an appeal from the decision of a District Judge in the County Court and determined, at paragraph 109 of that earlier judgment that a Court should consider making positive requirements. Therefore, the Court of Appeal seemingly accepted that positive requirements were available in the County Court. Overall, we achieved a good outcome for our client and obtained clarity as to the use of positive requirements. Such requirements can often be more effective in addressing anti-social behaviour, by addressing the causes of the behaviour, rather than simply prohibiting the behaviour itself. A review of the Court's powers in relation to Anti-Social Behaviour by the Civil Justice Council in 2020 emphasised the importance of including positive requirements in injunctions. One of its recommendation was to increase their use as a way of addressing underlying issue causing Anti-Social Behaviour. If you need to discuss the above case or require any guidance please get in touch with us.
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