In October 2020, a new provision was inserted in CPR Part 81 allowing the Court of its own initiative to consider whether to bring contempt proceedings against the defendant (CPR r.81.6). This differs in two respects from the previous position: (i) the Court’s power to act of its own initiative is no longer confined to contempt “in the face of the court”; and (ii) the Court is not entitled (at least not under CPR Part 81) to deal with such contempt immediately or ‘summarily’: the Court must issue a summons and require the defendant to attend.
In Nebahat Evyap İşbilen v Turk [2021] EWHC 854, the Claimant asked the Court to proceed under CPR r.81.6 albeit that the Claimant was not prepared itself to make an application for contempt. In broad terms, the Claimant alleged that the Defendant’s disclosure under a world wide freezing order had been both late and incomplete and that it was “hard to imagine circumstances in which such an order would be more appropriate”. The Defendant submitted that he had done his best in the limited time.
The Court gave guidance on the operation of the new rule in CPR r.81.6, and it is believed to be the first case to do so:
- Previous authorities relating to contempt, including the test for when such proceedings should be commenced, are equally applicable to r. 81.6.
- The new rule applies where no other application for contempt has been made, which means the Court is required to consider the position under r.81.6 only where an application might otherwise have been expected.
- The Court should act of its own initiative only in exceptional circumstances, where the contempt is clear, where there is urgency and where it is imperative to act immediately.
- The commencement of contempt proceedings are likely to require significant consideration under r. 81.6 only where they are in relation to “serious rather than technical” breaches; when they are “directed at the obtaining of compliance with the order in question”; “when they have a real prospect of success”; and when they involve “something of sufficient gravity to justify the imposition of a serious penalty.”
- 81.6 is not a ‘gateway step’: it is the commencement of proceedings in contempt by the Court.
- Technical breaches of Court orders are unlikely to require the Court to spend much time considering whether to proceed under r. 81.6. They may be unlikely to give rise to contempt at all. That is to be contrasted with “deliberate and wilful refusal to comply” with a Court order, where the Court would be expected to consider the position more thoroughly.
- The Court should not expect submissions on r.81.6 in the majority of cases. If that was done in all cases where there was an arguable (or even an obvious) breach of a court order, the Court and litigants would be overwhelmed. R. 81.6 is “primary a matter for the Court, although of course the parties may wish to remind the Court of the provision where appropriate.”
Applying those principles, in a judgment handed down on 9 April 2021 the Court refused to commence contempt proceedings against the Defendant. The Defendant had acknowledged his failure, apologised for it and had taken some steps to rectify it, including agreeing to be cross examined on his evidence. In those circumstances, issuing a summons under r.81.6 would be inappropriate.
Iain Quirk QC, instructed by Bivonas Law LLP acted for the Defendant.
The full judgment can be found here.
