The new CPR 81 (new rules) came into force on 1 October 2020, replacing the former CPR 81 (old rules). It provided a welcome update to the procedure for civil committal proceedings, significantly streamlining the rules from 38 to ten, and disposing of the clunky Practice Direction 81 entirely.
It is intended that the overhaul will simplify the codified procedure for bringing contempt of court proceedings. However, in the absence of any transitional period, how does the rule change affect practitioners whose clients’ existing contempt proceedings straddle both the new and old rules?
In Secretary of State for Transport (HS2) and another v Cuciurean, judgment on liability was handed down on 13 October 2020, with no references to the new CPR 81. However, in advance of the sentencing hearing on 16 October 2020, counsel for the defendant brought the issue of the applicability of the new rules (in force from 1 October 2020) to Marcus Smith J’s attention. Marcus Smith J addressed three “transitional” matters relating to contempt proceedings following the implementation of the new rules, and inserted an “important rider” into his judgment on liability, during the sentencing hearing.
Effect of the new rules on orders made before they came into force
Contempt proceedings can be a long process: they will often involve a number of applications and hearings, long before any committal proceedings are heard. An order preceding the new rules may have already been obtained by a claimant, setting out any number of orders that, if breached, trigger a penal notice. If this is the case, Marcus Smith J has essentially outlined that any such orders should be “read and considered in the light of the law as it stood at the time”. Plainly, there should be no attempts to retrospectively apply the new rules to orders made when the old rules were in place.
Effect of new rules on procedures for contempt-related applications made before the new rules came into force
Marcus Smith J outlined that all procedural steps taken before 1 October 2020 should be governed by the old rules. There is therefore no requirement on parties to contempt proceedings to amend (or seek permission to amend) any matters or procedural steps carried out before 1 October 2020.
Procedure for matters post-1 October 2020
Finally, Marcus Smith J addressed the appropriate procedure for matters after the new rules came into force. It may seem obvious, but Marcus Smith J confirmed (albeit with “trepidation”) that the new rules should be applied to post-1 October 2020 matters. That provides an element of certainty for practitioners. However, to an extent, this is muddied by the lack of a transitional period. That said, the new CPR 81 is not intended to introduce changes to the existing substantive law of contempt, but instead, simplifies the procedure for contempt applications (CPR 81.3 sets the steps out succinctly).
As such, there has not been a significant shift in meaning of the new rules from the old, but instead a simplification of the procedural rules with the introduction of ten short rules of general application. As a result, Marcus Smith J’s judgment on liability was unaffected by the new rules.
A common-sense approach should be adopted in these circumstances, and practitioners should avoid cherry-picking between the two sets of rules. It is clear that the new CPR 81 is here to stay, and even where proceedings were already commenced, all matters going forward are governed by the new rules.
Practitioners should also ensure that their terminology is up to date. Pursuant to the new CPR 81.2, applicants are now “claimants” and respondents are now “defendants”. Other important terms, such as “penal notice” and “order of committal”, are also clearly defined in CPR 81.2.
General implications of COVID-19
There are changes to procedure set out in CPR 81 that practitioners should not be caught out by, particularly during the COVID-19 restrictions. Due to the seriousness of contempt proceedings, any contempt application must be supported by a witness statement and served personally on the defendant (CPR 81.5(1)). Where the defendant(s) are “persons unknown”, a judge will likely make special provisions, and dispense with the requirement for personal service (which may be increasingly difficult during the pandemic), providing for alternative methods. Always ensure there is clear direction from the court in such circumstances, and follow the requirements of service as set out in CPR 81.5.
Concluding thoughts
Following the important amendments made to CPR 22 and PD 22 (verification of statements of truth and explicit reference to contempt proceedings) in April and October 2020, it is more important than ever that practitioners and their clients are aware of the implications of both CPR 81 and CPR 22, to ensure they do not fall foul of the rules.
Without any guidance in the CPR, Marcus Smith J’s “important rider” has essentially provided a welcome guide on the “transitional period” for applications, hearings and proceedings for contempt of court straddling the two sets of rules.
