There are new rules in effect from 1 October 2020 in both the Civil Procedure Rules (CPR) and the Family Procedure Rules (FPR). These rules replace earlier editions and they also supersede certain practice directions issued outside the rules regime.

The new (shorter) rules introduce a more streamlined and simple procedure and some of the terminology has been updated. They are set out in new versions of Part 81 of the CPR (applying to civil courts) and Part 37 the FPR (applying to family courts). The changes have been made by statutory instrument (a form of delegated legislation, made by a government minister under a power conferred by statute), which in the case of the CPR was the The Civil Procedure (Amendment No. 3) Rules 2020 and in the case of the FPR was the Family Procedure (Amendment No 2) Rules 2020 (SI 2020/758).

The rules do not change what constitutes contempt of court (which is essentially actions and omissions that abuse, frustrate or disrespect the court process or disobey its orders), nor do they affect the range of penalties, including imprisonment, available to deal with it. The substantive law on contempt of court is derived partly from statute, partly from the common law or the inherent powers of the court. These new rules are only concerned with the procedure to be followed when dealing with an application to punish someone for committing contempt of court.

Terminology and procedure

Some of the terminology used in the rules has been simplified (CPR r 81.2 / FPR r 37.2):

• An application to the court to consider an allegation of contempt of court and to decide whether or not to punish a person for committing it is now called a “contempt application” (rather than a “committal application”).

• The person who makes such an application is called the “claimant” now (rather than “applicant”) and the person against whom it is made (the alleged “contemnor”) is now called the “defendant” rather than “respondent”.

• If found guilty, such a person may be imprisoned under an “order of committal”.

• The prominent notice on a court order, warning people that disobeying or breaching the order may result in being punished for contempt of court, is still called a “penal notice”.

• Apart from a sentence or suspended sentence of imprisonment, a person found in contempt of court may be fined or their property confiscated.

The new rules set out the procedure to be adopted when someone makes a contempt application. In particular, they set out what is required in terms of written evidence, what facts need to be asserted or proved, including things like dates, details of the court orders alleged breached, and so forth. There are provisions for serving notice of the application on the defendant and for directions as to the hearing. The court can decide “on its own initiative” to hold a hearing if it considers a contempt may have been committed.

The rules go on to make provision for what sort of punishments the court can impose, if contempt is proved, using an order known as a “warrant of committal” (under which the defendant may need to be arrested or their property seized); and as to how the defendant can appeal or apply for the order to be discharged.

Open Justice

In relation to the hearing itself, there are important provisions about open justice and publicity. These are slightly different in the two sets of rules. In the Civil Procedure Rules, they provide (CPR r 81.8):

“81.8.—(1) In accordance with rule 39.2, all hearings of contempt proceedings shall,
irrespective of the parties’ consent, be listed and heard in public unless the court otherwise
directs.

(2) Advocates and the judge shall appear robed in all hearings of contempt proceedings,
whether or not the court sits in public.

(3) Before deciding to sit in private for all or part of the hearing, the court shall notify the
national print and broadcast media, via the Press Association.

(4) The court shall consider any submissions from the parties or media organisations before
deciding whether and if so to what extent the hearing should be in private.

(5) If the court decides to sit in private it shall, before doing so, sit in public to give a
reasoned public judgment setting out why it is doing so.

(6) At the conclusion of the hearing, whether or not held in private, the court shall sit in
public to give a reasoned public judgment stating its findings and any punishment.

(7) The court shall inform the defendant of the right to appeal without permission, the time
limit for appealing and the court before which any appeal must be brought.

(8) The court shall be responsible for ensuring that judgments in contempt proceedings are
transcribed and published on the website of the judiciary of England and Wales.”

In the Family Procedure Rules there are more detailed provisions to deal with hearings in private (FPR r 37.8):

“1. All hearings of contempt proceedings shall, irrespective of the parties’ consent, be listed and heard in public unless the court otherwise directs, applying the provisions of paragraph (4).

2. In deciding whether to hold a hearing in private, the court must consider any duty to protect or have regard to a right to freedom of expression which may be affected.

3. The court shall take reasonable steps to ensure that all hearings are of an open and public character, save when a hearing is held in private.

4. A hearing, or any part of it, must be held in private if, and only to the extent that, the court is satisfied of one or more of the matters set out in sub-paragraphs (a) to (g) and that it is necessary to sit in private to secure the proper administration of justice—

(a) publicity would defeat the object of the hearing;

(b) it involves matters relating to national security;

(c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality;

(d) a private hearing is necessary to protect the interests of any child or protected party;

(e) it is a hearing of an application made without notice and it would be unjust to any respondent for there to be a public hearing;

(f) it involves uncontentious matters arising in the administration of trusts or in the administration of a deceased person’s estate; or

(g) the court for any other reason considers this to be necessary to secure the proper administration of justice.

5. The court must order that the identity of any party or witness shall not be disclosed if, and only if, it considers non-disclosure necessary to secure the proper administration of justice and in order to protect the interests of that party or witness.

6. Unless and to the extent that the court otherwise directs, where the court acts under paragraph (4) or (5), a copy of the court’s order shall be published on the website of the Judiciary of England and Wales (which may be found at www.judiciary.uk ). Any person who is not a party to the proceedings may apply to attend the hearing and make submissions, or apply to set aside or vary the order.

7. Advocates and the judge shall appear robed in all hearings of contempt proceedings, whether or not the court sits in public.

8. Before deciding to sit in private for all or part of the hearing, the court shall notify the national print and broadcast media, via the Press Association.

9. The court shall consider any submissions from the parties or media organisations before deciding whether and if so to what extent the hearing should be in private.

10. If the court decides to sit in private it shall, before doing so, sit in public to give a reasoned public judgment setting out why it is doing so.

11. At the conclusion of the hearing, whether or not held in private, the court shall sit in public to give a reasoned public judgment stating its findings and any punishment.

12. The court shall inform the defendant of the right to appeal without permission, the time limit for appealing and the court before which any appeal must be brought.

13. The court shall be responsible for ensuring that judgments in contempt proceedings are transcribed and published on the website of the judiciary of England and Wales.”

Comment

The clarity and simplification of the rules is certainly to be welcomed, as is the clear requirement (with certain exceptions) to hold the hearing in open court. Although these proceedings are not technically criminal proceedings, they are punitive or penal in nature, in that people risk being fined or sent to prison.

As with the making of anonymity orders in other circumstances (such as in media claims or in relation to injunctions) the court’s decision to make such an order in contempt proceedings in a family court must be published, even in anonymised form, on the Judiciary website (see FPR r 37.8(6) above), so there is a public record of that fact. And all contempt judgments in both civil and family courts must also be published (CPR r 81.8(8) and FPR r 37.8(13)).

What is not clear, however, is how permanent a record the Judiciary website is supposed to provide of both the anonymity orders and the contempt of court judgments which are required to be published there. Recent correspondence with the site’s administrators, concerning the removal of some published judgments including those relating to contempt of court, dating from only five years ago, drew the response that publication on the site was only intended to assist the media at the time of the hearing and not to provide a permanent archive of such rulings. However, it is not clear that this has been anticipated or acknowledged by the rule makers and we think it a matter of public concern that rulings, required to be published under the Rules, may eventually be removed.

Another thing which is not entirely clear is the extent to which a 2015 practice direction issued by the Lord Chief Justice, Lord Thomas of Cwmgiedd, Practice Direction (Committal for Contempt: Open Court) [2015] 1 WLR 2195, still applies in family courts. The Judiciary website recently published what it said was an updated version of this practice direction, but it appears to be worded exactly the same as it always was. What has been updated is the introduction to it, ie the page from which you can access a PDF of the original (unchanged) 2015 direction. This updated page now refers to the new rules and states that the Lord Chief Justice’s practice direction continues to have effect “Except in relation to proceedings for contempt of court to which part 81 of the Civil Procedure Rules 1998 apply” and that it “supplements the provisions relating to contempt of court, the Family Procedure Rules 2010…”

However, given that the FPR now contain a new version of Part 37 which mirrors the wording of Part 81 of the CPR, it’s a little difficult to see to what extent the 2015 practice direction can continue to apply to family courts differently from the civil courts. However, there will be other courts, such as the Court of Protection, as well as criminal courts, where it does still apply. And of course it, too, requires (has always required) publication of anonymity rulings and contempt judgments on the Judiciary website.