The Law Commission consultation on Contempt of Court – how will this impact the Social Housing sector?
Published: October 22nd, 2024
10 min read
On 9th July 2024, the Law Commission, launched their consultation paper where they review the law of contempt of court. The consultation will run until the 8th November 2024.
The scope of the review is to recommend reform of the law of contempt, with the aim of clarifying this area of law and improving its consistency, coherence, and effectiveness.
The reason for the consultation is due to a recognition that the law of contempt, which has developed over centuries, has not developed systematically and so now comprises of an unsystematic amalgamation of statute and common law which has resulted in a somewhat disordered and unclear regime.
The scope of the review is wide and the provisional proposals are characterised by four broad lines of reform:
1. The first of these is a move towards clarification and codification.
2. The second line of reform is a move towards transparency and accountability.
3. The third is directed towards greater consistency and ensuring fairness for defendants.
4. The fourth line of reform is directed towards enhancing some of the fundamental protections that the rule of law provides.
What is being proposed?
There are a number of proposals included within the consultation which is reflected in the 137 consultation questions being asked. The questions range from provisional proposals for law reform, to more open-ended questions where your views are sought.
The overarching proposal, however, is a new framework for liability for contempt.
Instead of there being a distinction between criminal and civil contempt, the Law Commission is provisionally proposing to remove this distinction and under the proposed new framework for liability for contempt, this would instead comprise of three forms of contempt:
1. General contempt
2. Contempt by breach of order or undertaking
3. Contempt by publication when proceedings are active
What proposals will impact the housing sector?
There are a number of key proposals that we believe have the potential to impact the housing sector. For example:
1. The proposal to introduce a form of contempt by breach of order or undertaking.
With the new proposed framework for liability for contempt, this form of contempt is more likely to impact the social housings sector, who more commonly commence contempt proceedings arising from a breach of injunction or undertaking.
This form of contempt would be committed where:
a. a person breaches an order or undertaking (where the order or undertaking made clear that breach would constitute contempt);
b. the act or omission that constitutes the breach is deliberate;
c. the person has knowledge that the order existed and that they are bound by it (not necessarily that they knew the terms of it); and
d. the person has knowledge of the facts that make the conduct unlawful.
As the law stands, there cannot be a finding of contempt against a person who did not know that they were subject to a court order; the Defendant must have had notice of the order if they are to be expected to comply with it.
Whilst this is the case, the provisional proposal of the Law Commission is that there should be no requirement to show that the Defendant knew the precise terms of the order, beyond showing that they knew they were bound by an order, thereby reflecting the general doctrine that ‘ignorance of the law is no excuse.’
That being said, this proposal is likely to be of assistance to landlords which will prevent an easy loophole for Defendants who may seek to evade a finding of breach.
However, on a practical level, is the proposal to introduce a requirement of ‘knowledge’ placing an additional and unnecessary burden on landlords to go one step further from that of simply serving an injunction to one that also requires confirmation that service is acknowledged by the Defendant? Whilst many process servers are likely to already (or should!) inform a Defendant of the documents that they are being served with; making this a specific requirement may well cause practical issues and an increased financial burden.
Interestingly, there isn’t any mention within the consultation as to how landlords would be expected to comply with this requirement where a court has granted permission for service to be effected by alternative means, such as by letterbox.
2. Interim coercive remedies
Another key feature in respect of the form of ‘contempt by breach of order or undertaking’ is proposed ‘interim coercive remedies.’
As matters stand today, the coercion to comply with orders and undertakings exists only in the threat of sanction once full contempt proceedings have been commenced as there is no coercive remedy for ongoing non-compliance.
However, within the consultation, in circumstances where the elements of contempt can be made out to the civil standard or proof and there is in fact a breach capable of remedy (ie where the continuing effect of non-compliance can be remedied by subsequent compliance), the Law Commission are proposing a number of specific interim remedies in order to coerce compliance, without having to proceed to a formal finding of contempt.
Such remedies include: an order that the defendant pay a fixed, perhaps periodic, deposit of money into court that would be returned upon compliance; sequestration of assets and an order that the defendant surrender a passport or any other document that would allow the defendant to leave the jurisdiction.
As the proposals currently stand, it is questionable as to whether the list of interim remedies would be particularly relevant to housing cases and so perhaps alternative or wider proposals, such as, removal of radio/sound equipment in a noise nuisance case, may be appropriate.
3. The procedure in contempt proceedings
The Law Commission has recognised that there are different procedures and processes for dealing with contempt across many different courts and so they are proposing various suggestions in the consultation to move towards a consistent approach.
Many of these will likely assist our sector – such as clarification as to the terminology to use in contempt proceedings (ie the use of Defendant or Respondent), and a proposal for witness statements to be used, rather than affidavits.
There is, however, a proposal for permission requirements when making a contempt application under the CPR arising from a breach of an order. From a practical and financial perspective, we would be concerned that any requirement where permission is required before an application for contempt is made is simply going to lengthen and increase cost to a process that can already be lengthy and costly.
It is also unclear as to whether permission would be required when a Defendant has been arrested.
4. Representation in contempt proceedings
In addition to the proposal that means testing for legal aid should apply in all contempt proceedings, the Law Commission is seeking views on whether a civil court in contempt proceedings should be required to consider a Defendant’s financial resources when making decisions about costs awards in contempt proceedings.
It is questionable whether this would be attractive for our sector - would this make it less likely that landlords would ever get a costs order? Whilst the issue of costs is not the main objective of contempt applications and there are some Judges who already consider means when making cost orders - making this a requirement may perhaps be of particular concern.
For example, we often encounter situations where the threat of a cost order is all that is required to encourage Defendants to comply with an injunction – with this threat removed and nothing to replace it, how is this likely to impact compliance?
5. Sanctions
The Law Commission is asking whether the sanctions options in contempt proceedings are fair and proportionate, and whether courts have sufficient powers to ensure the appropriateness of any sanctions for vulnerable individuals, including those with mental health conditions as well as children and young people.
The main concern raised, which has been raised in many contempt hearings that we have dealt with, is that the range of sanctions in the civil courts are extremely limited compared to, say, the criminal courts who have the availability of community sentences.
In response to this, the Law Commission has suggested a number of core provisional proposals to reform the sanctions regime. For example:
a) The Pre-Sentence Report (‘PSR’)
One such proposal is the introduction of the PSR. This provides an assessment of the nature and causes of the person’s behaviour, and any risk they may pose to others.
Such a step will allow Defendants, who may be particularly vulnerable and unrepresented, to appear before a court for sentencing with their vulnerabilities being taken into account.
However, the consultation does not provide details as to who would be expected to pay for such a report, or who would in fact complete such a report (as there is no probation service within the civil courts). Furthermore, on a practical level, a Defendant cannot be forced to undertake a mental health assessment and in our experience, a Defendant is less likely to comply if the report is obtained by their landlord.
b) Community sentences
Currently, community sentences are not available as a sanction for contempt of court. In our view, this represents a significant gap in the options available to the courts which is shared with many Judges that we have appeared before in contempt applications.
Whilst the sector can apply for positive requirements in ASB injunction cases, in our experience, often due to issues relating to supervising compliance with any positive requirement, they are seldom used. Therefore, a community sentence would enable the courts to deal with specific issues that are perhaps causing the breaches to occur in the first place, such as drug or substance abuse issues.
Furthermore, having these options available to the Court may also mean that contempt applications become more attractive as currently, when faced with certain breaches of injunction, a fine or imprisonment isn’t going to remedy the behaviour, however a community sentence may well do so.
c) Sentencing guidelines
The Law Commission provisionally proposes that guidelines should be developed by a Judicial working group which draws together a range of expertise on sentencing contempt in different contexts.
We believe that this recommendation is particularly needed in the sector to ensure clarity and consistency in sentencing Defendants, rather than leaving Judges to apply guidance which has been set out in the case law, sometimes legitimately drawing on criminal sentencing guidelines as points of reference but without any precise or predictable approach as to how that is to be done.
Conclusion
There are clearly a number of proposals with the consultation that have the potential to improve contempt proceedings for our sector. However, as explained above, as the consultation is not specifically focussed on contempt proceedings in the context of housing cases, a failure to respond to the consultation by the sector risks the implementation of proposals that will fail to effect positive change.
We would therefore urge all landlords to pay careful consideration to the consultation and the proposals contained therein and to respond to as many questions as possible before the deadline on 8th November 2024.
You can prepare a response on behalf of your organisation and submit this by email to: contempt-of-court@lawcommission.gov.uk or by post at: Contempt of Court Team, Law Commission, 1st Floor, 52 Queen Anne’s Gate, London, SW1H 9AG.
A full copy of the consultation can be found here with a summary of the paper available to review here
To discuss any of the issues raised in this article, please do not hesitate to contact Jenna Tym - jenna.tym@forbessolicitors.co.uk
For further information please contact Jenna Tym