Contempt of Court: proposed reforms to legal framework and procedure

'Contempt of Court' applications can be powerful tools to ensure another party's compliance with Court rules, orders and undertakings. Despite its name, it is used in a variety of fora, including Court proceedings, as well as employment tribunals and other bodies, such as the Competition Appeal Tribunal and the Parole Board. 

The notion of 'Contempt' applies to a potentially broad range of conduct – from a deliberate breach of a court order to refusing to answer questions in court or publishing material in breach of a reporting restriction – the common thread being the impediment or interference with the administration of justice.

The law on contempt has a long history, dating back to the 13th century and has developed piecemeal through the common law. Whilst its flexibility has often been perceived as a cornerstone of its utility, the piecemeal way in which the law developed has given rise to potential issues, which the Law Commission has identified in its recently published Consultation Paper. 

Issues identified by the Law Commission

The Law Commission identified 3 principal issues relating to the current law on contempt. 

The first is the utility of the continued distinction between civil and criminal contempt in circumstances where neither is actually a criminal offence (albeit a finding of 'criminal contempt' will often be supplemented with a criminal charge e.g. perverting the course of justice). 

The second issue identified concerns the jurisdiction of courts, tribunals and other bodies under the law on contempt. The Law Commission noted that the current law regarding which bodies are 'exercising the judicial power of the state' and therefore protected under the law on contempt lacks certainty and predictability, and that likewise, the law on whether inferior courts, tribunals and other bodies can deal with conduct constituting contempt lacks clarity. 

The third issue relates to the limited interim measures available under the current law (short of issuing a full contempt application) to encourage compliance with court orders, rather than punish for non-compliance. The Law Commission noted stakeholders' concerns that 'contemnors often draw out their non-compliance until the last possible moment' and the court's lack of power to punish for such ongoing breaches.

Key Proposed Reforms from the Law Commission

In response to the issues identified, the Law Commission outlined in its consultation paper proposals for reform. 

Firstly, the consultation paper proposes a move away from the long-standing distinction between civil and criminal contempt. Instead, it proposes that all conduct constituting contempt be divided into three categories:

• General Contempt - to encompass any conduct that interferes with or creates a substantial risk of interfering with the administration of justice to a non-trivial degree. Under this umbrella, there would be two strands: (i) general contempt by publication (e.g. of confidential trial material online), for which one would need to establish intention to interfere with the administration of justice and (ii) general contempt by conduct other than publication (e.g. threatening a lawyer), for which one would only need to show that the contemnor is reckless as to the interference with the administration of justice.
• Contempt by a breach of order or undertaking - this would be broader than the current form of civil contempt in that it would encompass breaches of any court order and not just those made for the benefit of a party to litigation. Under the new framework, a party would have to be aware of the relevant court order and the breach would have to be deliberate.
• Contempt by publication where proceedings are active - unlike under the general form of contempt, the fault element would be 'strict liability', e.g. the distributor or publisher need not have intended to interfere with the administration of justice if the proceedings were active and they publish sensitive information about the proceedings. This category of contempt stems from the proliferation of social media use and the foreseen importance of protecting a defendant's right to privacy during a trial. 

Secondly, to address the uncertainty regarding the protection and powers of courts and tribunals in the area of contempt, the Law Commission has proposed that the statutory definition of what constitutes a court for the purposes of contempt be accompanied by a non-exhaustive list of the superior courts, inferior courts, tribunals and other bodies that are considered 'courts' for the purposes of contempt. This is likely to afford greater clarity for practitioners, courts and tribunals. 

Thirdly, to make available interim remedies for breach of an order or undertaking without the need for a formal finding of contempt. Examples of such interim remedies would potentially include asking a defendant to pay a sum of money into court, sequestration of a defendant's assets or impounding a defendant's passport. A lower standard of proof would be imposed for such interim remedy applications.  

Practical Impacts of the Proposed Reforms 

The most welcome proposal for practitioners may be the introduction of interim remedies for breach of an order or undertaking. Compelling compliance with court orders has been a common source of difficulty when faced with a disinterested or deliberately disobedient party and clients are often keen to avoid the cost and time-consuming satellite litigation of a contempt application, especially where the direct result is not one of financial gain. 

This proposal has the potential to add to the practitioner's toolbox and provides another way of ensuring compliance with court orders or undertakings. However, the utility and efficacy of such orders in coercing compliance remains to be seen – will a party already in breach be any more inclined to comply if it might be subject to interim remedies? One way to strengthen their coercive effect, which is being considered, may be to make the breach of interim remedies a way of clearing the path for a subsequent contempt application, e.g. by requiring a lower standard of proof in the subsequent application. 

In addition, it should be noted that while contempt of court often comes to mind in the context of litigation proceedings, it can, and has had application in relation to arbitration proceedings. For example, in the enforcement of arbitration awards where asset disclosure orders and freezing orders have been issued by the court, or even during the arbitration itself, such as where injunctions for the preservation of evidence or assets, or anti-suit injunctions have been issued. As such, any future developments in the law on contempt may also have an impact on parties who have chosen to arbitrate their disputes. 

The consultation period is now closed and a report is expected in late 2025. Please find here the links to the Law Commission's consultation paper and their summary of the same.