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COMMITTAL APPLICATIONS

COMMITTAL APPLICATIONS

Postby NRparent » Sun Nov 30, 2008 1:22 pm

http://www.justice.gov.uk/civil/procrul ... _rsc52.htm

PRACTICE DIRECTION – COMMITTAL APPLICATIONS This Practice Direction is supplemental to RSC Order 52 (Schedule 1 to the CPR) and CCR Order 29 (Schedule 2 to the CPR)

Contents of this Practice Direction Title

General

PART I

Commencement of Committal Proceedings


Written evidence


CASE MANAGEMENT AND DATE OF HEARING

STRIKING OUT

MISCELLANEOUS

PART II

ANNEX

General

1.1 Part I of this practice direction applies to any application for an order for committal of a person to prison for contempt of court (a ‘committal application’). Part II makes additional provision where the committal application relates to a contempt in the face of the court.

1.2 Where the alleged contempt of court consists of or is based upon disobedience to an order made in a county court or breach of an undertaking given to a county court or consists of an act done in the course of proceedings in a county court, or where in any other way the alleged contempt is a contempt which the county court has power to punish, the committal application may be made in the county court in question.

1.3 In every other case (other than one within Part II of this practice direction), a committal application must be made in the High Court.

1.4 In all cases the Convention rights of those involved should particularly be borne in mind. It should be noted that the burden of proof, having regard to the possibility that a person may be sent to prison, is that the allegation be proved beyond reasonable doubt.

(Section 1 of the Human Rights Act defines ‘the Convention rights’)

PART I
Commencement of Committal Proceedings

2.1 A committal application must, subject to paragraph 2.2, be commenced by the issue of a Part 8 claim form (see paragraph 2.5).

2.2 (1) If the committal application is made in existing proceedings it must be commenced by the filing of an application notice in those proceedings.

(2) An application to commit for breach of an undertaking or order must be commenced by the filing of an application notice in the proceedings in which the undertaking was given or the order was made.

(3) The application notice must state that the application is made in the proceedings in question and its title and reference number must correspond with the title and reference number of those proceedings.

2.3 If the committal application is one which cannot be made without permission, the claim form or application notice, as the case may be, may not be issued or filed until the requisite permission has been granted.

2.4 If the permission of the court is needed in order to make a committal application –

(1) the permission must be applied for by filing an application notice (see CPR rule 23.2(4));

(2) the application notice need not be served on the respondent;

(3) the date on which and the name of the judge by whom the requisite permission was granted must be stated on the claim form or application notice by which the committal application is commenced;

(4) the permission may only be granted by a judge who, under paragraph 11, would have power to hear the committal application if permission were granted; and

(5) CPR rules 23.9 and 23.10 do not apply.

2.5 If the committal application is commenced by the issue of a claim form, CPR Part 8 shall, subject to the provisions of this practice direction, apply as though references to ‘claimant’ were references to the person making the committal application and references to ‘defendant’ were references to the person against whom the committal application is made (in this practice direction referred to as ‘the respondent’) but:

(1) the claim form together with copies of all written evidence in support must, unless the court otherwise directs, be served personally on the respondent;

(2) the claim form must set out in full the grounds on which the committal application is made and must identify, separately and numerically, each alleged act of contempt including, if known, the date of each alleged act;

(3) an amendment to the claim form can be made with the permission of the court but not otherwise;

(4) CPR rule 8.4 does not apply; and

(5) the claim form must contain a prominent notice stating the possible consequences of the court making a committal order and of the respondent not attending the hearing. A form of notice, which may be used, is annexed to this practice direction.

2.6 If a committal application is commenced by the filing of an application notice, CPR Part 23 shall, subject to the provisions of this practice direction, apply, but:

(1) the application notice together with copies of all written evidence in support must, unless the court otherwise directs, be served personally on the respondent;

(2) the application notice must set out in full the grounds on which the committal application is made and must identify, separately and numerically, each alleged act of contempt including, if known, the date of each of the alleged acts;

(3) an amendment to the application notice can be made with the permission of the court but not otherwise;

(4) the court may not dispose of the committal application without a hearing; and

(5) the application notice must contain a prominent notice stating the possible consequences of the court making a committal order and of the respondent not attending the hearing. A form of notice, which may be used, is annexed to this practice direction.
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Written evidence

3.1 Written evidence in support of or in opposition to a committal application must be given by affidavit.

3.2 Written evidence served in support of or in opposition to a committal application must, unless the court otherwise directs, be filed.

3.3 A respondent may give oral evidence at the hearing, whether or not he has filed or served any written evidence. If he does so, he may be cross-examined.

3.4 A respondent may, with the permission of the court, call a witness to give oral evidence at the hearing whether or not the witness has sworn an affidavit.

CASE MANAGEMENT AND DATE OF HEARING

4.1 The applicant for the committal order must, when lodging the claim form or application notice with the court for issuing or filing, as the case may be, obtain from the court a date for the hearing of the committal application.

4.2 Unless the court otherwise directs, the hearing date of a committal application shall be not less than 14 days after service of the claim form or of the application notice, as the case may be, on the respondent. The hearing date must be specified in the claim form or application notice or in a Notice of Hearing or Application attached to and served with the claim form or application notice.

4.3 The court may, however, at any time give case management directions, including directions for the service of written evidence by the respondent and written evidence in reply by the applicant, or may hold a directions hearing.

4.4 The court may on the hearing date –

(1) give case management directions with a view to a hearing of the committal application on a future date; or

(2) if the committal application is ready to be heard, proceed forthwith to hear it.

4.5 In dealing with any committal application, the court will have regard to the need for the respondent to have details of the alleged acts of contempt and the opportunity to respond to the committal application.

4.6 The court should also have regard to the need for the respondent to be –

(1) allowed a reasonable time for responding to the committal application including, if necessary, preparing a defence;

(2) made aware of the availability of assistance from the Community Legal Service and how to contact the Service;

(3) given the opportunity, if unrepresented, to obtain legal advice; and

(4) if unable to understand English, allowed to make arrangements, seeking the assistance of the court if necessary, for an interpreter to attend the hearing.


STRIKING OUT

5. The court may, on application by the respondent or on its own initiative, strike out a committal application if it appears to the court:

(1) that the committal application and the evidence served in support of it disclose no reasonable ground for alleging that the respondent is guilty of a contempt of court;

(2) that the committal application is an abuse of the court’s process or, if made in existing proceedings, is otherwise likely to obstruct the just disposal of those proceedings; or

(3) that there has been a failure to comply with a rule, practice direction or court order.

(CPR Part 3 contains general powers for the management by the court)

MISCELLANEOUS

6. CPR Rules 35.7 (Court’s power to direct that evidence is to be given by a single joint expert), 35.8 (Instructions to single joint expert) and 35.9 (Power of court to direct a party to provide information) do not apply to committal applications.

7. An order under CPR rule 18.1 (Order for a party to give additional information) may not be made against a respondent to a committal application.

8. A committal application may not be discontinued without the permission of the court.

9. A committal application should normally be heard in public (see CPR rule 39.2), but if it is heard in private and the court finds the respondent guilty of contempt of court, the judge shall, when next sitting in public, state –

(1) the name of the respondent;

(2) in general terms the nature of the contempt or contempts found proved; and

(3) the penalty (if any) imposed.

10. The court may waive any procedural defect in the commencement or conduct of a committal application if satisfied that no injustice has been caused to the respondent by the defect.

11. Except where under an enactment a Master or district judge has power to make a committal order1, a committal order can only be made:

(1) in High Court proceedings, by a High Court Judge or a person authorised to act as such2; or

(2) in county court proceedings by a Circuit Judge or a person authorised to act or capable by virtue of his office of acting as such3.


PART II

12. Where the committal application relates to a contempt in the face of the court the following matters should be given particular attention. Normally, it will be appropriate to defer consideration of the behaviour to allow the respondent time to reflect on what has occurred. The time needed for the following procedures should allow such a period of reflection.

13. A Part 8 claim form and an application notice are not required for Part II, but other provisions of this practice direction should be applied, as necessary, or adapted to the circumstances. In addition the judge should:

(1) tell the respondent of the possible penalty he faces;

(2) inform the respondent in detail, and preferably in writing, of the actions and behaviour of the respondent which have given rise to the committal application;

(3) if he considers that an apology would remove the need for the committal application, tell the respondent;

(4) have regard to the need for the respondent to be –

(a) allowed a reasonable time for responding to the committal application, including, if necessary, preparing a defence;

(b) made aware of the availability of assistance from the Community Legal Service and how to contact the Service;

(c) given the opportunity, if unrepresented, to obtain legal advice;

(d) if unable to understand English, allowed to make arrangements, seeking the court’s assistance if necessary, for an interpreter to attend the hearing; and

(e) brought back before the court for the committal application to be heard within a reasonable time.

(5) allow the respondent an opportunity to –

(a) apologise to the court;

(b) explain his actions and behaviour; and

(c) if the contempt is proved, to address the court on the penalty to be imposed on him;

(6) if there is a risk of the appearance of bias, ask another judge to hear the committal application; and

(7) where appropriate, nominate a suitable person to give the respondent the information.

(It is likely to be appropriate to nominate a person where the effective communication of information by the judge to the respondent was not possible when the incident occurred.)

14. Where the committal application is to be heard by another judge, a written statement by the judge before whom the actions and behaviour of the respondent which have given rise to the committal application took place may be submitted as evidence of those actions and behaviour.


ANNEX

IMPORTANT NOTICE

The Court has power to send you to prison and to fine you if it finds that any of the allegations made against you are true and amount to a contempt of court.

You must attend court on the date shown on the front of this form. It is in your own interest to do so. You should bring with you any witnesses and documents which you think will help you put your side of the case.

If you consider the allegations are not true you must tell the court why. If it is established that they are true, you must tell the court of any good reason why they do not amount to a contempt of court, or, if they do, why you should not be punished

If you need advice you should show this document at once to your solicitor or go to a Citizens' Advice Bureau.
Footnotes
1. e.g. ss.14 and 118, County Courts Act 1984.Return to footnote 1
2. see s.9(1), Supreme Court 1981.Return to footnote 2
3. see s.5(3), County Courts Act 1984.Return to footnote 3
NRparent
 
Posts: 1788
Joined: Sun Oct 28, 2007 10:25 pm
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Postby NRparent » Sun Nov 30, 2008 1:26 pm

Controlling the uncontrollable

http://www.addleshawgoddard.com/view.as ... nt_id=2308

You will occasionally come across individuals who simply ignore court orders or have some form of vendetta against you which takes the form of issuing claim after claim or application after application, forcing you to incur substantial legal costs. What do you do?

To deal with litigants who refuse to comply with court orders you can start committal proceedings for contempt of court. But if you have a serial litigator, one option is the relatively new sanction of a "civil restraint order".

Committal for contempt of court

Orders for committal (to prison) are the most draconian remedy. They can be used in extreme circumstances. You would apply to commit if your opponent fails to do something which he has undertaken to the court to do, disobeyed a judgment or order to pay money or failed to do an act within a specified time, made a false statement in a court document verified by a statement of truth, or in some way scandalised the court.

Usually the court order that has been breached will have had a penal notice marked on it setting out the possible consequences of failure to comply. Even where it doesn't, though, the court has a discretion to commit.

Recently we acted in a case where an individual was refusing to vacate property and obstructed the court bailiff with dangerous material, including petrol in water pistols and other "booby traps". The police were unable to enter the property without a warrant for his arrest. We committed him to prison for contempt of court. Our client simply needed him out of the property so that it could be secured into our client's possession and then sold. The term of imprisonment is a matter for the court not the applicant. On this occasion the court ordered imprisonment for 7 days. The court does not make such orders lightly. The defendant had been given every opportunity to vacate the property voluntarily and the committal application had been adjourned at least once before he was imprisoned.

In professional negligence claims, when acting for the claimant, we may have to get a court order for delivery of a solicitor's file. These orders may carry penal notices. However, when one needs access to relevant documents a warrant for arrest or imprisonment may not be the solution. In a case we dealt with recently the court instead ordered a "bench warrant" to be issued. This required that the solicitor be arrested and brought before a Judge, on notice to us, so that we could ask relevant questions.

The use of committal for contempt of court in extreme circumstances can achieve practical results where other remedies fail.

Civil restraint orders

"A civil restraint order is likely to be appropriate when the litigant's conduct has the hallmark of one who is content to indulge in a course of conduct which evidences an obsessive resort to litigation and a disregard of the need to have reasonable grounds for making an application to the court." Bhamjee [2003] EWHC 3114 (Admin)

A vexatious litigant, of the type described, subjects others to inconvenience, harassment and expense out of all proportion to any gain to him in bringing the application or claim.

If the court considers that a civil restraint order is desirable, it will then consider whether the order should be an "extended" one. A simple order is usually limited to the active court proceedings. An extended order will only be granted if it can be shown that the litigant is both persistent and vexatious. To get one it is usually necessary to show that he has issued a number of different claims. An extended order prevents any new claims or applications in any current or new proceedings without the permission of a named Judge. A simple order is limited to the bringing of a particular claim or type of application.

It is possible for the recipient to appeal against a civil restraint order. And if the Judge refuses to permit a further application the vexatious litigant may appeal that decision. If the order is not working it is possible for the court to take further steps. Meanwhile you are protected against having to incur further legal costs: even when you receive them in the post or in person you may ignore future claims or applications unless and until a Judge gives permission for them to be issued.
NRparent
 
Posts: 1788
Joined: Sun Oct 28, 2007 10:25 pm
Location: south west.....

Postby NRparent » Sun Nov 30, 2008 1:35 pm

http://www.familylawweek.co.uk/site.aspx?i=ed812


Be careful of an exception to Order 29, rule 1(2) contained in Order 29, rule 1(7). This rule gives the court a discretion to dispense with personal service of an order but only if the court thinks it just to do so. You would ordinarily find such a situation where a respondent was in court at the time an order was made and told the judge that he understood the order. In such an instance the court has a discretion to disapply Order 29, rule 1(2). Rule 1(7) might further be applied should personal service not be possible but your client was informed of the order over the telephone. It is probably fair to say that this rule would be applied to excuse personal service only if your client could be proven to have come to know about the order in some way other than being personally served with it, and had understood it.



Part 3: Applications for Committal on Notice Application in Form N78
Form N78 is an odd document because on the face of it the burden of proof is reversed. Your client appears to have to come to court and show why he should not go to prison. This is truly an odd state of affairs in view of the current emphasis on the human rights of the individual but the practice of serving this form in family proceedings persists. In practice, of course, the applicant still has to prove the allegations beyond reasonable doubt and your client has to prove nothing. The trial of the application will follow the pattern of a criminal trial.

Perhaps one day some brave soul will make a submission that the N78 that has been served upon your hapless client is in itself an abuse of process and should be struck out.

Committal for breach of undertakings
As touched upon in paragraph 7, the undertaking is a written promise to the court made on a printed form. The person who gives the undertaking stands before the judge and confirms his understanding of the promise. He will then be asked to sign it and hand it to the judge. However, there is a potential pitfall for the unwary here that you could turn to your advantage.

The respondent may stand there in court and listen attentively as the judge gives the usual lecture about it being a serious promise to the court. He may even sign the back and hand it up to the judge, but all this may do no good unless he is subsequently served with it in accordance with CCR 1981 Ord 29 rule1A (1). The reason for this is that the rule effectively requires the written undertaking to be delivered to your respondent. Surprisingly, this rule 1 (A)(1) has removed the courts discretion to dispense with delivery/service of the undertaking as it can do with an injunction order under rule 1(7). This gives rise to a chink in the applicant's armour and affords you a potential defence to a committal application for breach of undertaking.

Therefore if the respondent were to deny a full understanding of the undertaking that he gave to the court, and it could not be proven that he was served with a copy of it, you might have a potential defence against a committal application. Lack of service of the document would not of itself be a complete defence because the authorities say that it is the giving of the undertaking that gives rise to its enforceability rather than the service of the document; see Hussain v Hussain [1986] 2 FLR 271. However, the signing of the document, the service of the document and the absence or otherwise of legal advice go to form the evidence that your Respondent knew what he was doing when he gave the promise. If you read the Hussain case (which is very brief) you will understand better why the rules were amended after this important case.

Every case is different on its facts and in most cases the lack of service of the undertaking document will probably not help at all because the respondent is of sound mind, signed the document and was represented by counsel who, it can be presumed, would have advised him of the consequences of a breach. However, the situation could be different where the respondent was a litigant in person who now alleges that he misunderstood the promise he gave. In that situation, the absence of compliance with what is a mandatory rule could tip the balance in his favour.

Rule 1 (1)(A) is a little understood rule that the writer suspects few practitioners even know exists. You will probably never even come close to using it as an argument in court, but it is worth keeping in your armoury for the appropriate case. Even if it fails as a complete defence it might just create enough doubt to save your respondent from prison and if you can achieve that then you will have done your client a considerable service that would make Charles Dickens's pale young man proud of you.
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