Old law, new rules…

A party to proceedings (B) has failed – or allegedly has failed – to comply with a court order, or B has failed to take a step the court ordered be done. What can the other party (A) do to try to compel compliance? One option for A is to apply to the court and to say that B’s failure may be a contempt of a court order.

Court procedure for contempt proceedings for civil and family cases – under Civil Procedure Rules 1998 (CPR 1998) and Family Procedure Rules 2010 (FPR 2010) – were reformed in Parts 81 and 37, respectively, with effect from October 2020. (See Contempt of Court: new rules and open justice provisions). It might be hoped that the answer to the first question for A – how to start contempt proceedings – would be simple and that the rule-makers would have provided for it. I do not think they have. A as applicant and her advisers must work through a mixture of judge-made law, rules, old practice directions, even a Chancery Guide (which is probably wrong) – as explained below – to find how to set up the first steps in a contempt application. (Though the substantive contempt law remains the same as before October 2020.)

This post refers mostly to FPR 2010 Part 37; but for present purposes CPR 1998 Part 81 is the same. The question to be addressed is what must A to lay the ground for enforcement of the court order where she says B has not complied with it: for example, to have a child returned or to enforce contact in accordance with a court order; or where a step in proceedings – service of a document or statement – has not been done. To get to the point of court application, A must follow the steps set out here. Neither rules nor practice direction nor other material help her.

To get the necessary steps right is important: for A and for B – the liberty of a subject may be in issue, after all. One of the means of enforcement of a contempt finding can be imprisonment. The law reports have a number of cases – such as Zuk v Zuk [2012] EWCA Civ 1871, [2013] 2 FLR 1466 (Mostyn J); Re Nasrullah Mursalin [2019] EWCA Civ 1559 and Mr Udin in Re L (below) where procedural errors have meant defendants went to prison who should not have done.

On the other hand, if A or her advisers get the procedure wrong – as can be seen in the cases referred to below – the courts’ order may still have been breached, A or her child may have suffered, and A will have received poor, or no proper, service from her advisers or from the court. An B’s contempt will have gone unpunished. But how clear are the steps which A must take to have her contempt application fairly heard?

Law and procedure of contempt

FPR 2010 r 37.2 provides a description of A’s first step in he contempt process. B must be given warning of his alleged non-compliance with the order. A ‘penal notice’ is defined as follows:

“‘Penal notice’ means a prominent notice on the front of an order warning that if the person against whom the order is made… disobeys the court’s order, the person… may be held in contempt of court and punished by a fine, imprisonment, confiscation of assets or other punishment under the law.”

Reference is made to a penal notice in the new r 37.4 which defines ‘Requirements of a contempt application’. Rule 37.4 mentions penal notice almost only in passing. Rule 37.4(2)(e) says and that the order said not to have been complied with ‘included a penal notice’:

“(2) A contempt application must include statements of all the following:…

(e) confirmation that any order allegedly breached or disobeyed included a penal notice;”

What do procedural rules say on the terms of a penal notice being endorsed on or attached to an order, and how and by whom is this done? Is the penal notice attached a matter of right or must it be attached by specific direction of the court? And if an order is to be enforced, must there be evidence of personal service endorsed by a penal notice on B? The answers to these questions are not clear. They will be attempted at the end of this post.

Procedural laws: a mix of old and new

Rule 37.4(2)(e) is the limit of what the new rules say about the procedural position of penal notices. Civil Procedure (the ‘White Book’) at 81.4.4 & 5 considers the post-October 2020 position on penal notices. It concludes that, though the new rules (and the new PD37A) do not prescribe a form of words for a penal notice, the old wording should be kept to (see the old PD37A quoted below). Where the new rules are silent, reference must be made to the old rules. These are likely to define the steps by which parties proceed.

In Re Dad [2015] EWHC 2655 (Fam), Holman J dealt with a contempt application. A father had kept with him a six year-old child in breach of an order which required the child’s return. A form of penal notice was included in the order the father was said not to have obeyed, hidden away on page 5 or 6 of the court’s return order. Holman J considered the then rules (which have not been reproduced in the modern Part 37), and – with the following introduction as to the importance of the penal notice – he dismissed the mother’s contempt application. In particular he considered the then FPR 2010 r 37.9 which said (emphasis added):

“37.9 Requirement for a penal notice on judgments and orders

(1) …A judgment or order to do or not to do an act may not be enforced under rule 37.4 unless there is prominently displayed, on the front of the copy of the judgment or order served in accordance with this Chapter, a warning to the person required to do or not do the act in question that disobedience to the order would be a contempt of court punishable by imprisonment, a fine or sequestration of assets.”

To be effective a penal notice must comply with r 37.9 said Holman J in a passage (at [12]) subsequently approved by Sir James Munby P (sitting with Vos LJ and Theis J) in the Court of Appeal in Re L (A Child) [2016] EWCA Civ 173, [2017] 1 FLR 1135. Sir James re-enforced Holman J’s point:

“[60] … FPR 2010 r 37.9(1) requires that, if an order is to be enforced by committal, it must contain a penal notice in appropriate form ‘prominently displayed, on the front of the copy of the … order’. In this case, the penal notice was on the fifth page. I can do no better than to repeat and endorse what Holman J said of a similarly defective collection order in Re Dad (above):

‘the use of those words in that paragraph on the fifth page of the order simply does not comply with, or satisfy at all, the requirements of rule 37.9(1). In the first place, the warning cannot be said to be “prominently displayed”…. Unless the penal notice is prominently displayed on the front of the copy of the order, “a judgment or order … may not be enforced …” In my view, the words “may not be enforced” where they appear in that rule do not import a discretion in the court. Rather, they are a mandatory direction to the court that it cannot and must not enforce the order by committal.'”

Rule 37.9 is not reproduced in the new rules; yet surely it represents the law on which an application must be based, and which must still be followed by the parties and by the courts? So how, then, is a penal notice to be endorsed and by whom?

Penal notice: by order of the court

In CH v CT [2018] EWHC 1310 (Fam), [2018] 4 WLR 122; [2019] 1 FLR 700 (25 May 2018), Baker J allowed an appeal against a suspended committal order made by a recorder in family proceedings an appellant mother’s (M) failure to comply with an order to make her daughter available for contact with M’s mother. Just as Holman J had done, so did Baker J, to cite the then rr 37.4 and 37.9.

“[33]  … It is important to note the effect of rule 37.9(3)(a). A penal notice under rule 37.9 must not be endorsed on an order under s 8 of the 1989 Act, including a child arrangements order, unless the court, on the application of the person entitled to enforce the order, has expressly directed that it be endorsed.”

So, concluded Baker J, any penal notice directed to be endorsed by the court must comply with the provisions of rule 37.9(1) and PD37A para 1.1 (again, para 1.1 has been left out of the new rules and PD37A). Parag 1.1, the judge pointed out, said then:

“1.1 A judgement or order which restrains a party from doing an act or requires an act to be done must, if disobedience is to be dealt with by proceedings for contempt of court, have a penal notice endorsed on it as follows (or in words to substantially the same effect) –

‘If you the within-named [insert name] do not comply with this order you may be held to be in contempt of court and imprisoned or fined, or your assets may be seized.’

1.2 Where an order referred to in rule 37.9(3)(a) or (b) is to be endorsed with or have incorporated in it a penal notice in accordance with rule 37.9(3), the notice must be in the words set out in paragraph 1.1 of the Practice Direction, or words to substantially the same effect.”

A word from the Chancery Division

A link between these family cases is provided by Re Taray Brokering Ltd [2022] EWHC 2958 (Ch) (21 November 2022) a decision of His Honour Judge Pearce sitting as judge in the High Court. In Taray, Judge Pearce was adjudicating on a point which was academic; so the precedent value of the case may be limited. The parties had settled terms before the matter came back before Judge Pearce.

The judge expressed the view (at [15]) that r 81.4(2)(e) (the same as FPR 2010 r 37.4(2)(e)) “contemplates that the penal notice is part of the order itself” which differentiates it from previous authority where the penal notice had been “appended to a copy of the order, rather than that forming part of the order itself’” He continued:

“[17] There can be no doubt that a court order is the document which the court authorises rather than the parties’ interpretation of what the court has ordered” and, therefore:

“[18] It follows that, on the wording of the current version of CPR 81, I am satisfied that a party is not at liberty to add a penal notice to an order of its own volition”; and

“[21] … A party to litigation is not at liberty to add a penal notice to an order of the court of its own motion; rather, that party must apply to the court to vary the order if it wishes a penal notice to be added.”

Judge Pearce appears not to have been referred to The Business and Property Courts of England & Wales Chancery Guide 2022 (‘The Chancery Guide’: ) which has a different view to him – and to the Court of Appeal and the family judges referred to above – as to how a penal notice is endorsed. Chapter 16 of the Guide deals with the preparation of a court order. In passing and under the heading ‘Penal notices’ para 16.29 of the guide says (emphasis added):

“16.29 If a party considers that enforcement of an order by an order for committal may be needed, the order must be served with a penal notice endorsed upon it. CPR 81.4(2)(e) requires evidence that any order breached or disobeyed included a penal notice, except where such a notice was inapplicable. The standard form of penal notice is described in CPR 81.2, but any wording to substantially the same effect is sufficient [and see Iberian Trust Ltd v Founders Trust and Investment Co. Ltd [1932] 2 KB 87, confirming this].

16.31 It is not necessary to obtain the consent of the court before a penal notice is endorsed on an order before service.

16.33 It is, however, always open to the party wishing to enforce the order to endorse a penal notice on the copy of the order to be served. It is not essential that the penal notice forms part of the order when it is sealed.

16.34 If the order is being drafted by the court, and the penal notice has not been included in the order, it should be endorsed on the copy of the order to be served.”

The Guide asserts a view which is at odds with Baker J in CH v CT; and that case, in the words of a High Court judge, accords with what HHJ Pearce says Taray. A party in A’s position and who wishes to rely on an order by means of contempt application is best advised to ensure that a penal notice be endorsed on the order to be enforced and endorsed formally by order of the court – at least until the law is more settled.

That the order sought to be enforced must be served personally on the alleged contemnor, unless personal service is dispensed with, is beyond doubt. Rule 37.4(2) includes:

“(2) A contempt application must include statements of all the following:…

(c) confirmation that any such order was personally served, and the date it was served, unless the court or the parties dispensed with personal service;

(d) if the court dispensed with personal service, the terms and date of the court’s order dispensing with personal service;…”

A practice direction, a penal notice and the modern law: setting up a contempt application

Para 1 to the pre-2020 CPR 1998 PD81 said exactly the same as did the former PD37 para 1.1 cited by Baker J (above). The post-October 2020 practice direction provides no guidance on this point. There is no reference there to a penal notice; how it may be endorsed; or how notice of it and of the order in question is to be communicated to the alleged contemnor (the person said not to have complied with the order).

And the consequences of procedural errors? Holman J in Re Dad [2015] EWHC 2655 (Fam) concludes:

“[17] In my view, therefore, this is not a situation where I can waive the procedural defect. All applications to commit require proper adherence to the requirements of any enactment and rule of court. In the present case there is a serious defect in the order upon which the application to commit is based. I simply cannot commit Mr Chaudhry to prison for any breach of the order, however egregious. In my view that has the consequence that I must indeed strike out the application as a threshold decision, and Mr Chaudhry must not be required to give any evidence or to defend himself on the substance of this application….”

This article concludes by returning to the questions set out earlier.

(1) Nothing is said in rules or practice direction on how or by whom a penal notice is endorsed. Best practice, for now, must surely be to ask the court to re-issue any order with a penal notice prominently displayed and referring specifically to the order which it is said has been breached (Holman J in Re Dad; and the Court of Appeal in Re L).

(2) It follows that, no, a penal notice is not attached as a matter of right (Baker J in CH v CT (above)) despite what the Chancery Guide says. That Guide should be treated with caution if an order is safely to be enforced by contempt proceedings.

(3) And if an order is to be enforced by a contempt application there must be evidence of personal service of the order endorsed by a prominently displayed penal notice (FPR 2010 r 37.4(2)(d)); or there must be evidence that the order has other wise come to B’s notice with evidence that he was aware of the consequences of non-compliance.

If these steps are followed by an applicant alongside the other steps required by FPR 2010 r 37.4(2) her application can be reasonably sure of achieving it first steps to being heard.

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