From 1st October 2012 CPR 81 and its practice direction came into force. In this article, GCN pupil Gary Willock reviews the new CPR 81 from the perspective of housing lawyers defending respondents in committal proceedings for alleged breach of ASBIs, injunctions based on tenancy agreements of undertakings and looks at the procedural steps up to and including the making of a committal order.

From 1st October 2012 CPR 81 and its practice direction came into force. Effectively, they are a consolidated procedural code relating to all types of contempt of court proceedings. They replace CCR Order 29 and RSC Order 52 and the composite practice direction, which are now omitted. This article is aimed at housing lawyers who are defending respondents in committal proceedings for alleged breach of ASBIs, injunctions based on tenancy agreements or undertakings. I focus on the procedural steps up to and including the making of a committal order.

CPR 81 makes very few substantial changes to the procedure. It is, however, now streamlined and in one place. Sections 2 and 8 of CPR 81 are particularly relevant to our housing work. Given the very serious consequences for clients who are subject to committal proceedings, it is worthwhile familiarising yourself with the new layout and structure and reminding yourself of the procedural points which can arise.

However, before we get carried away by thinking that there are a host of irredeemable, technical traps that applicants can fall into, it is important to note that the court has the discretion to waive any procedural defect in the commencement or conduct of a committal application if it is satisfied that no injustice has been caused to the respondent by the defect (Paragraph 16.1 PD 81). Since the discretion may be exercised in the respondent’s favour, I set out below some practical steps to follow in order to check the applicant’s compliance with the procedure and to assist in championing the respondent’s case.

Was the respondent served with a copy of the order that it is alleged has been breached?

1. Personal service of an injunction order is required before it can be enforced (CPR 81.6).

So, check for proof of service. However, note that the court may dispense with personal service of a prohibitive injunction if it is satisfied that the respondent has had notice of the order either because the respondent was present when it was made or had been notified of its terms by telephone, email or otherwise (CPR 81.8 (1)).

2. In respect of undertakings, these are sufficiently served if delivered by the court to the respondent by handing a copy to the respondent, posting a copy to the respondent€™s residence or posting a copy to the respondent’s solicitor. However, if such delivery has not taken place then a court officer should deliver a copy of the undertaking to the applicant who must serve it personally upon the respondent. (CPR 81.7 (1) and (2)).

Is there an appropriately worded and placed penal notice on the order that it is alleged has been breached?

1. If disobedience is to be dealt with by proceedings for contempt of court then it is a requirement that a penal notice has been endorsed on the order that is alleged to have been breached. A form of penal notice is set out at paragraph 1 of PD81.It states,

“ If you the within-named [ ] do not comply with this order you may be held in contempt of court and imprisoned or fined, or your assets might be seized. â€

2. It is clear that if the above form of words is not used then any penal notice must be expressed “in words to substantially the same effect.”

3. On the endorsement on the order point, CPR 81.9 states that there can be no enforcement for breach unless there is a penal notice “prominently displayed on the front of the copy of the judgment or order served”.

4. Further, in relation to undertakings, the Court may decline to deal with disobedience in respect of an undertaking by contempt of court proceedings unless the party giving the undertaking has made a signed statement to the effect that that party understands the terms of the undertaking and the consequences of failure to comply with it (Para 2.2 (2) PD81).

Are the papers for the application to commit in order?

1. Has the application been commenced properly? In the housing injunction context the committal application will be made within proceedings so it should be made on application notice under CPR 23 and 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 (CPR 81.10 (1)/Paragraph 13.1 PD 81). No reference is made to a notice to show cause.

2. Watch out where the applicant tries to bring in new grounds or evidence. CPR 23 applies, but is subject to Part 81 and the PD. In particular, an amendment to the application notice may be made with the permission of the court but not otherwise. (Paragraph 13.2 PD 81).Similarly, the applicant may not rely on any grounds other than those set out in the application notice unless the court permits or any evidence unless it has been served in accordance with CPR 81 or the practice direction (CPR 81.28 (1)).

3. Is the application to commit correctly expressed? The application notice must set out in full the grounds and must identify, separately and numerically, each alleged act of contempt including, if known, the date of each of the alleged acts. The application notice must be supported by one or more affidavits, containing all the evidence relied upon (CPR 81.10 (3) and (4)).

4. Has the application to commit been served in accordance with the rules? The application notice and evidence must be served personally upon the respondent although the court may dispense with service if it considers it just to do so or may make an order for service by an alternative method or at an alternative place (CPR 81.10 (5)).

5. Does the application notice contain a warning notice? The application notice filed in order to commence the committal proceedings “must contain a prominent notice stating the possible consequences of the court making a committal order and of the respondent not attending the hearing”(Paragraph 13.2 (4)PD81). A suggested form of wording for the notice that may be used is set out at Annex 3 of PD81. CPR 81 adds in the new words “or seize your assets” to the warning notice. Check that the mandatory warning is there, check that it is prominent and, where it is not in the Annex 3 format, check that it conveys the required meaning.

6. Examine the hearing date. The applicant must, when filing an application notice for a committal application, obtain a date for the hearing of the committal application (Paragraph 15.1 PD 81). Unless the court directs otherwise, that hearing date must not be less than 14 days after service of the application notice upon the respondent. The date must be specified in the application notice or in a Notice of Hearing attached to and served with the application notice (Paragraph 15.2 PD 81).

How should the hearing proceed?

1. At the hearing the court may give case management directions with a view to a hearing of the committal application on a future date. Alternatively, if the committal application is ready to be heard then the court can proceed to hear it (Paragraph 15.4 PD81).

2. When attending the hearing the respondent may require an adjournment for various case management reasons.

3. Take note, therefore, that 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; to have the opportunity to respond to the committal; to be allowed a reasonable time for responding to the committal application including if necessary preparing a defence; to be made aware of the availability of assistance from the Community Legal Service and how to contact the Service; if unable to understand English, to be allowed to make arrangements for an interpreter to attend the hearing, seeking the assistance of the court if necessary. (Paragraphs 15.5/6 PD81).

4. Human rights arguments might assist here too, particularly in relation to Article 6. Paragraph 9 PD81 states, “In all committal cases the Convention rights of those involved should particularly be borne in mind. In particular that the standard of proof, having regard to the possibility of that a person may be sent to prison, is that the allegation be proved beyond reasonable doubt”.

5. Note also that the court may not dispose of the application to commit without a hearing (Paragraph 13.2 PD 81).

6. Finally, a committal application may not be discontinued without the permission of the court (Paragraph 16.3 PD81).

What is the format of evidence and how might it be controlled by the court?

1. Written evidence in support of or in opposition to a committal must be given by affidavit. (Paragraph 14.1 PD 81).

2. At the substantive hearing the respondent is entitled [1] to give oral evidence, whether or not he has filed or served evidence. In doing so he may then be cross-examined. Also the respondent may with permission call a witness to give oral evidence whether or not that witness has made an affidavit or witness statement (CPR 81.28 (2)).

3. The court has wide powers to summons witnesses and direct evidence. The court may require or permit any party or person, other than the respondent, to give oral evidence at the hearing. Further, the court may give directions requiring the attendance for cross-examination of a witness who has given written evidence (CPR 81.28 (3) and (4)).

When might a Respondent apply for the application to commit to be struck out?

1. Although this is likely to be very rare, the court, on its own initiative or on application by the respondent, may strike out a committal application.

2. Striking out could be ordered if it appears to the court that: the application and evidence disclose no reasonable grounds for alleging contempt of court; the application is an abuse of the court’s process; if made in existing proceedings (as is usually the case with a housing injunction) the application to commit is otherwise likely to obstruct the just disposal of those proceedings; there has been a failure to comply with a rule, practice direction or court order (Paragraph 16.1 PD81).

Jurisdiction of judges

1. Check that the matter has been listed before the appropriate level of judiciary. Most housing injunction work will take place in the county court. Note that except where under an enactment a district judge has power to make a committal order, a committal order can only be made in county court proceedings by a Circuit Judge or a person authorised to act as such (Paragraph10.2 PD 81).

2. Paragraph 8 PD2B sets out the enactments under which a district judge may only make an order committing a person to prison which, in a housing context, means sections 154-158 of, and Schedule 15 to, the Housing Act 1996 and the relevant rules. Clearly that does not give a power to a district judge to commit for an alleged breach of undertaking or for breach of a housing injunction which was made for breach of contract only.

Conclusion

I think that it is clear that CPR 81 sets out some opportunities and protections for the respondent which the would-be defender might usefully deploy in the appropriate case. Until the new White Book is published, remember to take a copy to court for you and the judge.

Gary Willock 
Garden Court North Chambers 
October 2012

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[1] However, the respondent to a committal application cannot be directed or ordered to give evidence, see: Comet Products UK Ltd v Hawkex Plastics Ltd [1971] 2 QB 67

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