Since its introduction in 2012, CPR 81, an unhappy, complex and repetitive mix of procedural and substantive law, has been subject to significant criticism. As Dame Victoria Sharp (President of the Queen’s Bench Division) noted in Attorney-General v Yaxley-Lennon, at paragraph 97, it had “been examined and found wanting” on a number of occasions. Following work by the Civil Procedure Rule Committee (CPRC) in 2019 and a public consultation earlier this year (the 2020 consultation), it is to be replaced in its entirety on 1 October 2020.
The new CPR 81
The new CPR 81 is radically simpler than what went before. Rather than being split into nine substantive sections, each dealing with a different area of substantive law, it consists of ten short rules of general application. They are not supported by a Practice Direction. What is needed in the rules, is in the rules. Important features of the new rules are:
- References to applicants and respondents are replaced with “claimant” and “defendant” (CPR 81.2).
- A single procedure for all contempt applications (CPR 81.3).
- Simplification of the rules concerning the level of judge to hear committal applications where permission is not needed (CPR 81.3(2)) and the level of judge to hear applications for permission and the application itself where permission is needed (CPR 81.3(7) and (8)).
- Permission to bring committal proceedings is now only required in two circumstances, where the committal application: relates to an interference with the administration of justice, except in existing High Court or county court proceedings (CPR 81.3(5)(a)); and where it relates to allegations of knowingly making a false statement in any affidavit, affirmation or other document verified by a statement of truth, or in a disclosure statement (CPR 81.3(5)(b)). The innovation in the old CPR 81.11(1), which required permission to commit for breaches of a solicitor’s undertaking, is not replicated.
- Formalisation of the case law requirements on information to be included in a contempt application, including notice of the right to remain silent (CPR 81.4(2)(n)).
- A specific procedure governing the process where the court commences contempt proceedings on its own initiative (CPR 81.6).
- Codification of the court’s power to issue a bench warrant to secure a defendant’s attendance (CPR 81.7(2)).
- A much-simplified approach to publicity concerning contempt hearings and judgments, which replaces the Practice Direction (Committal For Contempt: Open Court) [2015] 1 W.L.R. 2195 and the Practice Guidance: Committal For Contempt Of Court—Open Court, 24 June 2015, unrep (CPR 81.8). They are disapplied by the 122nd CPR Update; the latter by necessary implication. The new rule continues to require the court to notify the media, via the Press Association, presumably via its Injunctions Applications Alert Service as under the 2015 Open Court Practice Direction, where it intends to hear contempt proceedings in private (CPR 81.8(3)).
- Clarification of the court’s powers on finding there has been a contempt of court (CPR 81.9).
Transitional provisions
Unusually, no transitional provisions apply to preserve any aspects of the old CPR 81. Following the same approach as the Disclosure Pilot Scheme (PD 51U), the new CPR 81 applies to contempt proceedings that were on foot at 1 October 2020, as well as those commenced after that date. For proceedings commenced prior to 1 October 2020, this means that they continue under the new rules.
Saving provisions
There may be no transitional provisions, but there is, however, a limited saving provision. The old CPR 81, particularly CPR 81.19 to 81.27, continues in force in so far as it applies to CPR 83.2A, which concerns applications to enforce writs of sequestration. Oddly, there is no saving provision for the old CPR 81’s Practice Direction. The 122nd CPR Update revokes it as from 1 October 2020. That Practice Direction, however, contained provisions supplementing the old CPR 81, and particularly CPR 81.25 concerning the wording of penal notices in judgments and orders to be enforced by a writ of sequestration. The lack of a saving provision for the Practice Direction thus leaves a lacuna. Perhaps this will be filled if, and hopefully, when the retained provisions of the old CPR 81 are incorporated into CPR 83, as was suggested in the 2020 consultation. In the meantime, it would seem sensible best practice to approach the Practice Direction’s requirements as if they too were retained for the purposes of CPR 83.2A.
Continuing effect of the old case law
The new CPR 81 makes it clear that it does not affect the court’s jurisdiction concerning contempt (CPR 81.1(2)) and that it is subject to and consistent with the substantive law of contempt (CPR 81.1(3)). This is a useful reminder of the limits of procedural law. It helpfully flags up that the old case law, insofar as it relates to the court’s jurisdiction and the substantive law of contempt, remains good law. Where the old case law concerns procedure the picture is different. Where it concerns matters that were not dealt with in the old CPR 81, and they are not dealt with in the new CPR 81, it ought to remain good law. For instance, the case law concerning the test for permission to bring contempt proceedings or which governing renewed applications for committal should remain good law. Where case law concerns rules that are not replicated in, or have been modified by, the new CPR 81, its continued relevance must be doubted and care needs to be taken.
Penal notices
Care also needs to be taken when looking at, for instance, the standard wording of penal notices, which was set out in Annex 3 of the old PD 81. The standard wording is not replicated in the new CPR 81. It may still remain a useful guide though, as long as it is consistent with the new CPR 81.4 requirements for the contents of committal applications. As the Court of Appeal noted in McKay v All England Lawn Tennis Club (Championships) Ltd, at paragraph 32, the standard wording in Annex 3 of the old PD 81 was inconsistent with the right to remain silent, to not give evidence and with the burden of proof (CPR 81.8(2)(m) and (n)).
New court forms
Under the changes introduced by the 122nd CPR Update, PD 4 is updated to refer to five new bespoke contempt forms, with references to existing forms being removed. The new forms, which are due to be released by 1 October 2020, are:
- N600 Contempt Application.
- N601 Summons under r.81.6(3).
- N602 Warrant to Secure Attendance at Court under r.81.7(2).
- N603 Order under r.81.9.
- N604 Warrant of Committal under r.81.9.
Comment
The new rules are, on any basis, a significant improvement on what went before. They are, as all rules should be, simple and clear. With no repetitive Practice Direction adding an unnecessary layer of complexity and a reduction in applicable court forms, they ought to reduce procedural error and the cost and time of such applications. Let’s hope that this type of reform is the shape of future reforms to the CPR.
John Sorabji is General Editor of the White Book: Civil Procedure (Sweet & Maxwell), and a contributor to the chapter on Part 81 (Applications and proceedings in relation to contempt of court).
