Contempt of court: a proposed overhaul of law and procedure

The Law Commission is currently consulting on a proposed restructuring of the entire law of contempt.  A summary of the consultation is here and the full consultation document is  here.  

The key proposal is to do away with the historic (and often confusing) distinction between 'civil contempt' and 'criminal contempt' and replace it with a new framework under which there would be three distinct forms of contempt:

1.  Contempt by breach of order or undertaking (broadly akin to civil contempt but extending to all forms of court orders)
2.  General contempt  (based on interference with the administration of justice – broadly akin to criminal contempt.)  This could include non-parties assisting breaches of orders (eg moving assets), publishing an embargoed judgment, giving dishonest witness evidence. 
3.  Contempt by publication when proceedings are active (ie court reporting restrictions).

Particular issues raised in the consultation which may be of interest to participants in commercial litigation include:

• New interim coercive remedies:  The paper proposes (in Chapter 4) a new regime of interim coercive remedies to compel compliance with court orders/undertakings without the need for a finding of contempt (though not precluding subsequent contempt proceedings). They would require the applicant to prove the elements of contempt by breach of order/undertaking but only on the balance of probabilities – not to the criminal standard (beyond reasonable doubt) as would be required in an actual contempt action.  Examples of possible interim remedies include orders for payment of money into court; sequestration of assets; and impounding of passports or other documents.
   
• Recklessness?  For general contempt other than by way of publication, whether the "intention" to interfere with the administration of justice should be able to be satisfied by recklessness.
   
• Contempt powers for Tribunals:   A proposal to give tribunals contempt powers  -  to the same extent as the inferior courts,  ie. committal up to one month and fines of up to £2,500 (but with a proposal to exclude any powers re general contempt by publication and contempt by publication during active proceedings).
   
• Appeals: Potential changes to appeal routes / removal of the automatic right to appeal
   
• Reporting on criminal investigations: Whether criminal proceedings should not be considered 'active' until a person has been charged (rather than when arrested, as currently), thereby expanding what the media may report.

The consultation is open until 8 November 2024.