Good Practice in Proceedings for Contempt of Court

The recent case of Ashford Borough Council & Ors v Wilson [2024] EWHC 781 (KB) https://www.bailii.org/ew/cases/EWHC/KB/2024/781.html provides a timely reminder of some of the procedural practice in proceedings for Contempt of Court and how the Court will deal with evidence.

By way of background, Ashford Borough Council were granted an injunction against Fergus Wilson on 22nd September 2021. The injunction was granted due to allegations of harassment of staff described by the Judge at the time of granting as “a campaign of repetitive, frequent, oppressive and offensive correspondence with the Claimants”.

The terms of the injunction included:-

3. The Defendant is restrained from pursuing a course of conduct which amounts to harassment of the Protected Persons within the meaning of the Act.

AND

4. In particular, the Defendant be restrained from doing, causing, permitting, encouraging or assisting any of the following:

4.1 Threatening, intimidating or otherwise interfering with any Protected Person;

4.2 Posting on social media or the internet about Protected Persons or which is intended to cause alarm, fear or distress;

4.3 Knowingly making:

4.3.1 any communication to any Protected Person whether orally, by telephone, in writing, by facsimile, by email or other electronic means, which shall include for the avoidance of doubt any emails, texts, letters, communication through social media or telephone calls to a Protected Person(s); or

4.3.2 any communication whatsoever to any Protected Person at their private home, or on their private telephones, email addresses or social networking sites.

4.4 Compelling or coercing any Protected Person against his will from doing something he is under no obligation to do or not do something he is entitled to or required to do.

5. This order shall continue indefinitely as a final injunction unless revoked or varied by a Judge of the High Court.

SAVE THAT nothing in this Order shall prevent the Defendant from communicating with the First Claimant in writing, and in a manner which does not harass the Protected Persons, with Mr Terrence Mortimer of the First Claimant (or any other person designated in writing by the First Claimant to the Defendant as a replacement for Mr Mortimer in this role) by post to Civic Centre Tannery Lane, Ashford TN23 1PL or by email to NOT REPRODUCED (or to any other address or email address designated in writing by the First Claimant to the Defendant as a replacement for those given here).

AND SAVE THAT nothing in this Order shall prevent the Defendant from communicating with the First Claimant in respect of this litigation, in writing, and in a manner which does not harass the Protected Persons, with Mr Terrence Mortimer of the First Claimant (or any other person designated in writing by the First Claimant to the Defendant as a replacement for Mr Mortimer in this role) by post to Civic Centre Tannery Lane, Ashford TN23 1PL or by email to NOT REPRODUCED (or to any other address or email address designated in writing by the First Claimant to the Defendant as a replacement for those given here).

AND SAVE THAT nothing in this order shall prevent the Defendant from communicating with a former councillor in a non-harassing manner if the Defendant does not know and cannot reasonably be expected to know that they are a former councillor of the First Claimant.

“Protected Persons” are defined in the injunction order at paragraph 2.4 as:

“2.4 “Protected Persons” shall mean:

2.4.1 the Second Claimant;

2.4.2 the current and former officers, employees, councillors and agents of the First Claimant.”

The injunction order contained a penal notice to the Defendant in the required form and was personally served, together with the judgment on 22 September 2021.

Requirements for Contempt Proceedings and the N600 Form

His Honour Judge Antony Dunne outlined the requirements as set out in Part 81 of the Civil Procedure Rules for the service and conduct of committal proceedings. The rules are designed to ensure that those proceedings are fair.

In particular a Claimant must satisfy the requirements set out in CPR 81.4:-

(a) The application for committal must be supported by Affidavit evidence in support.

(b) The contempt application form N600 must set out the nature of the alleged contempt, namely a breach of the final injunction order.

(c) The Form N600 must confirm the date of personal service of the injunction.

(d) The Form N600 should confirm that the injunction order included a penal notice complying with CPR 81.4(2)(e).

(e) The Form N600 must confirm that the Defendant has the right to be legally represented in the proceedings, that they are entitled to a reasonable opportunity to obtain legal representation and to apply for legal aid (which may be available without a means test), that they may be entitled to an interpreter, that they are entitled to reasonable time to prepare for the hearing, that they are entitled, but not obliged, to give evidence in their defence, that they have the right to remain silent, that the court may proceed in their absence, and the potential punishments if they are found in contempt.

(f) The N600 should also state that if he Defendant admits the contempt and wishes to apologise that is likely to reduce the seriousness of any punishment, that the court’s findings will be provided in writing and that the court will sit in public unless and to the extent the court orders otherwise and that the findings will be in public.

(g) The contempt application must also be personally served.

Evidence of Conduct Leading to the Injunction

In these proceedings the Defendant’s conduct which led to the granting of the injunction to restrain further harassment was relevant to the Judge’s consideration of whether the alleged breaches of the injunction do in fact amount to harassment.

The Court in this case had the benefit of the Trial judgment. Accordingly, it may be worthwhile considering exhibiting a transcript of judgment to Affidavit evidence in proceedings particularly when trying to prove harassment or more unusual behaviour which is capable of causing a nuisance and/or annoyance.

His Honour Judge Antony Dunne deemed it necessary to look at the entire course of the Defendant’s conduct, both before and after the grant of the injunction to see whether the alleged breaches of the injunction met the definition of harassment, in that they:-

(a) amounted to harassment; and

(b) are such the Defendant knew or ought to have known they amounted to harassment.

The Evidential Burden

Following Masri v Consolidated Contractors International Company SAL & Ors [2011] EWHC 1024 (Comm), at paragraph 150, in order to establish that a person is in contempt by their breach of an injunction order it is necessary to show that the following elements are proved against that person:-

(i) he knew of the terms of the order;

(ii) he acted (or failed to act) in a manner which involved a breach of the order; and

(iii) he knew of the facts which made his conduct a breach.

The burden of proof is on the party alleging the contempt but the standard of proof is the criminal standard (see, for example, Nield v Loveday [2011] EWHC 2324).

The sanctions available to the court in the event that contempt is proven are imprisonment (for a period up to two years), a suspended sentence of imprisonment, seizure of assets, or a fine, sanctions more familiar to a criminal than a civil court.

The obligations to ensure a fair hearing are the equivalent of those applicable in criminal proceedings. But there is not the division of functions that are found in a Crown Court. Accordingly, the Judge will sit as judge of fact and law. As explained by His Honour Judge Antony Dunne, a Judge should direct themselves as to the approach they should take to the evidence in a manner similar to the way a judge in the Crown Court would direct a jury.

His Honour Judge Antony Dunne gave a good overview of how he would proceed with the case:-

“(i) I will apply the criminal standard of proof, asking myself whether the Claimants have made me sure on each breach I consider.

(ii) I will consider each of the forty four breaches separately, and come to a separate decision on each alleged breach. However, in reaching my decision on each ground I am entitled to consider the totality of the evidence relevant to each ground. In this case, the conduct in many of the alleged breaches is said to be part of a course of conduct amounting to harassment and is a breach of the harassment condition of the injunction order. In relation to each of those breaches I am entitled to consider the other evidence relating to that course of conduct. In addition, where the relevant course of conduct which is said to amount to harassment began before the injunction order was granted, that conduct may be directly relevant to the question of whether the individual breach amounts to harassment and will also form part of my consideration in relation to each individual breach.

(iii) I will consider the evidence given by the Defendant in the same way as I assess the evidence of the evidence of the Claimants.

(iv) On circumstantial evidence, I will decide what pieces of evidence are reliable and what conclusions can fairly be drawn from them.”

Proceeding in the Absence of the Defendant

It is worth noting that Mr Wilson attended at Court and represented himself in the proceedings. What about if a Defendant does not attend at Court?

Dealing with an application for contempt or sentencing following breach in the absence of the alleged contemnor is an exceptional course to be taken by the Court. Most practitioners will no doubt be familiar with a number of adjournments or the issue of bench warrants by the Court. to attempt to secure attendance by the Defendant.

It is however possible to hear a Contempt application in the absence of a Defendant and the Court in Sanchez v Oboz [2015] EWHC 235 (Fam) provided a helpful checklist as to the factors to be considered:-

i) Whether the Defendant has been served with the relevant documents, including the notice of the hearing?

ii) Whether the Defendant has had sufficient notice to enable them to prepare for the hearing?

iii) Whether any reason has been advanced for their non-appearance?

iv) Whether by reference to the nature and circumstances of the respondents’ behaviour, they have waived their right to be present (ie is it reasonable to conclude that the respondents knew of, or were indifferent to, the consequences of the case proceeding in their absence)?

v) Whether an adjournment would be likely to secure the attendance of the respondents, or at least facilitate their representation?

vi) The extent of the disadvantage to the respondents in not being able to present their account of events?

vii) Whether undue prejudice would be caused to the applicant by any delay?

viii) Whether undue prejudice would be caused to the forensic process if the application were to proceed in the absence of the respondents?

ix) The terms of the overriding objective to deal with cases justly, expeditiously and fairly.

MSB have a dedicated team of lawyers that specialise in social housing and regeneration. They provide sector-leading services and advice, guiding our clients through the very best solutions for them.

Andy Moore heads up the Anti-Social Behaviour team who are experienced in dealing with applications for Contempt of Court and particularly in breach of injunctions made under the Anti-Social Behaviour Crime and Policing Act 2014.

Visit the MSB Solicitors website to connect with Andy, or contact directly on 0151 318 5761

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