knowledge 27 January 2023 |

Contempt of Court: What is it and what are the consequences?

Introduction

Unlike some other jurisdictions, the law of contempt remains a creature of common law, despite recommendations from the Law Reform Commission for statutory offences to be introduced.¹ The law in this area remains largely uncodified and, in some ways, unclear. Hardiman J. in the Supreme Court described it as “amorphous”.²

Criminal Contempt and Civil Contempt

The first point of note is that there is a distinction between civil contempt and criminal contempt. This distinction was examined by the Supreme Court in the case of Keegan v De Burca.³ Civil contempt was described as usually arising “where there is a disobedience to an order of the Court by a party to the proceedings and in which the Court has generally no interest to interfere unless moved by the party for whose benefit the order was made.” As such, civil contempt must be raised by one of the parties to proceedings, indicating that the other has failed to comply with some order of the Court.

By way of contrast, criminal contempt is described as “behaviour calculated to prejudice the due course of justice” with examples being given of disorderly conduct in the Court room, publications aimed at prejudicing the due course of justice, or a refusal to abide by a writ of habeas corpus.

In Keegan the Supreme Court found that there are diverging objectives for that of criminal and civil contempt. Criminal contempt was seen to be punitive in nature whereas the primary motivation for civil contempt is coercion, by providing greater incentive for compliance with court orders.

The Court has a number of ways of dealing with a person who may be in contempt of court.

Attachment and Committal

Attachment is an order to have a named individual arrested and brought before the Court in order to answer the contempt, which has been alleged. Committal is an order to arrest an individual and commit them to prison. This can be used as a coercive tool, in order to encourage them to abide by the ruling, which they are in breach of, or in a punitive manner to express the Courts disapproval of some particular behaviour.

The Courts have been clear that there are limits to the use of imprisonment as a coercive measure. It has been held that, for example, where an order requires actions beyond the capacity of a defendant “imprisonment as a coercive means should not be resorted to. That is not to say that other measures may not be considered. Ultimately this becomes a matter for the trial judge.”⁴

In addition, where committal is unlikely to produce the desired result via coercion and where there is a reasonable alternative course open to the Court, the Court should pursue the alternative course rather than committal.⁵

Sequestration and fines

An order for sequestration involves the court appointing a sequestrator over the assets of the offending person. The sequestrator is given the power to take a contemnor’s property into their possession until the contemnor purges the contempt. Sequestration of an individual defendant’s assets is provided for by Order 43 Rule 2 of the Rules of the Superior Courts, which relates to a failure by a party to an action to pay money into Court or take some other action within a limited time. Where a party fails to do so within the time required by the Court, the party prosecuting the judgement or order is entitled to issue an order of sequestration against the estate and effects of the offending person. Order 42 Rule 32 and s53 Companies Act 2014 deal expressly with the sequestration of the assets of a company. The High Court has also a power to impose fines on a contemnor. These fines may be of a continuing nature.

Procedural safeguards

The rules of court lay down particular safeguards that must be complied with before an application for civil contempt is brought before the court. The criminal standard of proof will also apply to the application.

In addition, given that attachment and committal impact upon the civil liberties of the party found to be in contempt, the European Court of Human Rights determined that certain procedural safeguards reflective of criminal law also apply in some cases of civil contempt.⁶

The Supreme Court has laid down guidance on how to deal with a person being disruptive in the face of the Court, with a final step being to remove them from the Court itself but to allow participation through video link where necessary and to provide a digital audio recording of the relevant extracts from proceedings. This guidance seeks to maintain the court’s ability to deal with such contempt on a summary basis. By way of comparison, it has been highlighted that where an alleged contempt could result in a party being subject to a punitive term of imprisonment, the normal rules of criminal procedure should apply including legal representation, a criminal standard of proof, and the right to appeal a decision.⁷

Conclusion

The law of contempt of Court remains a creature of judge made law. While the rules around contempt may well remain described as “amorphous”, the actions required to avoid sanction by the court remain clear: abide by the orders made.