CONTEMPT
OF COURT
C. J. M ILLER
1
CONTENTS
Table of Cases xxiii
Table of Statutes, Regulations and Rules lxxxiii
Abbreviations cix
1. Introduction
A. The General Nature of Contempt of Court 1.01
B. Criminal and Civil Contempt of Court 1.04
C. Criminal Contempt of Court and its Relationship to Other
Criminal Offences
(1) General characteristics of criminal contempt 1.10
(2) Relationship to the offence of perverting the course of justice 1.12
(3) Potential overlap with specific statutory provisions 1.27
(4) Punishing as if for a criminal contempt of court 1.30
(5) Proposals for reform 1.31
D. Civil Contempt and Criminal Offences 1.32
E. Contempt and Freedom of Expression
(1) Introduction 1.36
(2) The European Convention on Human Rights 1.38
F. Contempt at Common Law and under the 1981 Act
(1) The background to and general scope of the Act 1.48
(2) The problem of the mental element in contempt 1.53
G. The Human Rights Act 1998
(1) The approach adopted 1.60
(2) Declarations of incompatibility 1.64
(3) An example based on the Saunders case 1.65
(4) Effect on common law contempts 1.68
(5) Areas which may be affected 1.71
2. Criminal and Civil Contempt of Court
A. Introduction 2.01
B. Punishment and Coercion 2.02
C. Criminal Safeguards in Civil Contempt Proceedings 2.07
D. Consequences of the Distinction between Criminal and
Civil Contempt 2.12
(1) Imprisonment 2.13
(2) The power to fine 2.16
(3) Settlement of the dispute and institution of proceedings 2.18
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(4) Privilege from arrest 2.23
(5) Appeals 2.25
(6) Further consequences 2.27
E. Areas of Uncertainty 2.30
F. Possible Abolition or Reclassification of the Distinction
(1) The Phillimore Committee recommendations 2.34
(2) Breaches of injunctions as criminal offences 2.35
(3) Breaches of injunctions which are contumacious or openly defiant 2.36
(4) An alternative suggestion 2.39
(5) An American comparison 2.41
(6) The European Convention on Human Rights 2.44
3. Procedure and Jurisdiction in Cases of Criminal Contempt
A. Introduction 3.01
B. Origins of the Summary Process 3.02
C. Contemporary Procedure and Jurisdiction
(1) Introduction 3.09
(2) Contempt, courts, and tribunals 3.11
(3) Contempt in the face of the court 3.25
(a) General principles of jurisdiction 3.26
(b) Jurisdiction of particular inferior courts 3.27
(4) Constructive or indirect contempts
(a) General considerations 3.39
(b) Jurisdiction of and procedure before particular courts 3.43
(5) Applications for injunctions 3.58
(6) Contempt in relation to Tribunals of Inquiry and other bodies
(a) Tribunals of Inquiry 3.66
(b) Other provisions for certification 3.67
(c) The problem of parallel proceedings 3.68
(7) Legal Aid 3.74
(8) The institution of proceedings: the role of the Attorney-General
(a) Proceedings ex mero motu 3.77
(b) The role of the Attorney-General 3.79
(c) The scope of section 7 of the 1981 Act 3.81
(d) Suggested justifications for section 7 3.87
(e) The timing of proceedings 3.89
(9) Punishment for criminal contempt
(a) General considerations and statutory maxima 3.92
(b) Contempt as an offence sui generis 3.96
(c) Young contemnors 3.98
(d) Committals and fines 3.99
(10) Appeals 3.101
(a) Appeals to the High Court 3.104
(b) Appeals to the Court of Appeal 3.107
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(c) Appeals to the House of Lords 3.109
(d) Other contempt proceedings 3.111
D. The Reception of the Summary Process into the United States and
Subsequent Developments
(1) Historical background 3.112
(2) Limitations imposed by legislation and the Federal Rules of
Criminal Procedure 3.115
(3) Constitutional requirements 3.121
4. Contempt in the Face of the Court
A. Introduction 4.01
B. Circumstances in which the Summary Jurisdiction may be
Exercised 4.02
C. When is a Contempt Committed ‘in the Face of the Court’? 4.08
D. Procedural Safeguards 4.12
E. The European Convention on Human Rights 4.16
F. Examples of Contempt in the Face of the Court 4.18
(1) Disruptive behaviour 4.19
(2) Insulting and disrespectful behaviour 4.27
(3) Contempt by advocates and solicitors 4.35
(4) Contempt by jurors 4.41
(5) Contempt by witnesses
(a) Failure to attend court or to produce documents 4.44
(b) Refusal to be sworn or to answer questions 4.46
(c) Fear and privilege 4.49
(d) Contempt and perjury 4.52
(e) Journalists and their sources of information 4.55
(6) Photographs, portraits, sketches, and cameras in court 4.97
(7) Tape recorders 4.104
G. Mens Rea 4.108
H. Reforming the Summary Process 4.116
I. Other Methods of Dealing with Disruptive Behaviour 4.122
5. Contempt through Interfering with Particular Legal Proceedings:
Some General Considerations
A. Introduction 5.01
B. The Requirements of the Due Administration of Justice 5.03
C. The Scope of the Strict Liability Rule
(1) Introduction 5.05
(2) Interference with particular legal proceedings 5.06
(3) The rule applies only to publications 5.07
(4) The rule does not extend liability 5.15
D. The Relationship of the Rule to Common Law Contempts
(1) Section 6(c) of the Contempt of Court Act 1981 5.17
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(2) Exerting improper public pressure on the parties to proceedings 5.29
(3) Publications which prejudge the issue 5.34
E. The Test of Liability
(1) Introduction 5.41
(2) At common law 5.42
(3) The Contempt of Court Act 1981
(a) The statutory test of liability 5.46
(b) Serious impediment or prejudice 5.52
(c) Relationship to staying proceedings and quashing convictions 5.59
(d) Questionable uses of the strict liability rule 5.68
(e) A comparison with the test of bias 5.72
(4) Some relevant factors
(a) Introduction 5.75
(b) The circulation and form of the publication 5.76
(c) Probable delay before trial 5.78
(d) Assessing the impact of a publication on potential jurors 5.79
(e) Prior media coverage and safety in numbers 5.85
(f) Miscellaneous factors and multiplying risks 5.90
F. The Problem of Ineffectual Attempts 5.91
6. The Period during which Proceedings are Sub Judice or Active
A. Introduction 6.01
B. Criminal Proceedings
(1) Proceedings at first instance
(a) At common law 6.02
(b) Under the Contempt of Court Act 6.19
(c) The limits of the strict liability rule 6.34
(2) Appellate proceedings 6.36
C. Civil Proceedings
(1) Proceedings at first instance
(a) At common law 6.40
(b) Under the Contempt of Court Act 6.44
(2) Appellate proceedings
(a) At common law 6.47
(b) Under the Contempt of Court Act 6.49
D. Proceedings before Tribunals and Other Bodies 6.51
7. Contempt in Relation to Particular Criminal Proceedings
A. Introduction 7.01
(1) Alternative strategies 7.02
(a) Selecting and protecting jurors 7.03
(b) Change of venue and postponement of the trial 7.07
(c) Isolating and warning jurors 7.08
(d) Abuse of process and staying proceedings 7.10
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(e) Quashing convictions 7.14
(2) The role of contempt and its relationship to alternative strategies 7.21
(3) The American approach 7.29
(4) Developments in Canada, New Zealand, and Australia 7.32
B. Contempt in Relation to Proceedings Before and During the Trial
(1) Introduction 7.40
(2) Exposing a juror to improper influences 7.41
(a) Direct approaches to jurors 7.43
(b) Prejudging the merits of a case 7.45
(c) Publications containing tacit assumptions of guilt 7.50
(d) Emotive and disparaging comment: guilt by association or
implication 7.55
(e) Publishing matter likely to be inadmissible in evidence 7.60
(f) Prejudicing the prosecution 7.71
(g) Impugning or enhancing the credibility of a witness 7.76
(3) Exposing a witness to improper influences 7.78
(a) Direct approaches to witnesses 7.79
(b) Payment for exclusive stories etc. 7.84
(c) Interviewing of witnesses 7.88
(d) Publications influencing witnesses 7.90
(e) Publishing photographs of an accused 7.92
(4) Exposing a judge to improper influences 7.98
(5) Exerting improper pressure on parties to proceedings 7.102
C. Contempt in Relation to Proceedings on Appeal
(1) Introduction 7.103
(2) Effect on appellate judges 7.105
(3) Effect on the parties 7.110
(4) Undermining public confidence in the administration of
justice 7.112
(5) Attempts to ‘dictate’ decisions to appellate courts 7.118
(6) Further proceedings before a jury 7.119
(7) Conclusions 7.122
D. The Position where Proceedings have Terminated 7.123
E. Defences and Qualifications to Liability 7.125
(1) Innocent publication 7.126
(2) Reports of court proceedings 7.127
(3) Counterbalancing public interest and the discussion of public
affairs
(a) At common law 7.128
(b) The Contempt of Court Act 1981, s. 5 7.139
(4) Reports of Parliamentary proceedings 7.154
F. The European Convention on Human Rights and the Human Rights
Act 1998 7.156
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8. Contempt in Relation to Particular Civil Proceedings and Proceedings
in Tribunals
A. Civil Proceedings
(1) Introduction 8.01
(a) The importance of the composition of the court 8.03
(b) Judges not susceptible to influence 8.04
(c) Some further general considerations 8.07
(2) Examples of conduct which may constitute a contempt
(a) Prejudging the merits of a case 8.09
(b) Prejudicing jurors 8.21
(c) Influencing witnesses 8.23
(d) Publishing inadmissible evidence 8.26
(e) Problems associated with defamation proceedings 8.28
(f) Contempt and breach of confidence 8.37
(g) Publicly abusing parties or witnesses 8.38
(h) Private threats and persuasion directed at courts, witnesses,
and parties 8.57
(i) Frustrating court orders and pre-emption 8.69
(j) Some further problems associated with civil proceedings 8.75
(k) Proceedings on appeal 8.85
(l) When proceedings have terminated 8.87
(3) Defences and qualifications to liability
(a) Innocent publication and reports of court proceedings 8.88
(b) Counterbalancing public interest and the discussion of
public affairs 8.89
B. Proceedings before Tribunals 8.99
C. Parliament and the Sub Judice Convention 8.102
9. The Sub Judice Rule: Mens Rea and the Scope of Responsibility
A. Mens Rea
(1) The position at common law 9.01
(2) The Contempt of Court Act 1981, s.3
(a) Introduction 9.14
(b) Lack of knowledge that proceedings are active: s. 3(1) 9.16
(c) Innocent distribution: s. 3(2) 9.20
(d) The limited nature of the statutory defence 9.23
B. The Liability of Particular Classes of Individuals
(1) Introduction 9.25
(2) Public statements, Press conferences, and Press releases 9.30
(3) Newspaper reporters 9.31
(4) Editors 9.34
(a) The basis of an editor’s liability 9.36
(b) Is contempt an offence of vicarious liability? 9.37
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(c) May an editor be held vicariously liable? 9.43
(d) The practical consequences of imposing vicarious liability
on an editor 9.44
(5) Newspaper proprietors 9.46
(a) Unincorporated proprietors 9.47
(b) Incorporated proprietors 9.48
(6) Directors and managers 9.52
(7) Printers 9.56
(8) Distributors 9.57
(9) Television and radio broadcasts 9.58
(10) Other forms of communication including electronic media 9.67
10. Open Justice: Publicizing Judicial Proceedings
A. Introduction 10.01
B. Proceedings Heard in Open Court 10.06
(1) Provisions intended to shield children and young persons from
publicity 10.07
(a) Reporting alleged offences involving persons under 18 10.08
(b) Reporting proceedings in youth courts 10.10
(c) Reporting proceedings in other criminal courts 10.14
(d) Reporting civil proceedings 10.22
(e) Jigsaw identification and the effectiveness of orders 10.25
(f ) Persons responsible 10.27
(g) Mens Rea 10.28
(h) Jurisdiction to make orders 10.30
(2) Restricting reports about eligible adult witnesses in criminal
proceedings 10.31
(3) Reports containing indecent matter and reports of family
proceedings
(a) Reports containing indecent matter 10.36
(b) Reporting family proceedings 10.37
(c) Reporting family proceedings in magistrates’ courts 10.41
(d) Children Act 1989, s.97 10.43
(4) Anonymity in sexual cases
(a) The background 10.44
(b) The current provisions 10.46
(5) Conferring anonymity in other cases
(a) At common law 10.53
(b) Contempt of Court Act 1981, s. 11 10.57
(6) Anonymity and the Human Rights Act 1998 10.68
(7) Reporting committal proceedings
(a) The background to the statutory restrictions 10.73
(b) The Magistrates’ Courts Act 1980, s. 8 10.75
(c) The relationship of the restrictions to other offences 10.77
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(d) Prosecutions under the Act 10.78
(8) Notice of transfer cases 10.83
(9) Reporting derogatory assertions 10.85
(10) Employment tribunals 10.88
(11) Reporting other court proceedings
(a) The nature of the problem 10.91
(b) The legality of fair, accurate, and contemporaneous reports 10.94
(c) Orders to postpone reporting 10.109
(12) Challenging reporting restrictions
(a) The background 10.131
(b) The Criminal Justice Act 1988, s. 159 10.133
(c) Applications for judicial review 10.135
(d) Entitlement to make representations 10.138
(e) The legality of erroneous orders 10.140
(13) Documents produced on discovery or disclosure
(a) In civil proceedings 10.145
(b) In criminal proceedings 10.151
C. Proceedings Heard in Private 10.154
(1) Hearing criminal cases in camera
(a) General principles 10.155
(b) Trials on indictment 10.156
(c) Magistrates’ courts 10.158
(d) The European Convention on Human Rights 10.162
(2) Hearing civil proceedings in camera and in chambers
(a) Introduction 10.164
(b) Hearings in camera 10.165
(c) Hearings in chambers 10.167
(d) The Administration of Justice Act 1960, s. 12 10.169
(3) More general protection for wards and others
(a) The background 10.179
(b) The Decision in Re Z 10.183
11. Victimization of Jurors, Witnesses, and Other Persons After the
Conclusion of Proceedings
A. Introduction 11.01
B. Jurors 11.02
C. Witnesses 11.03
D. Other Persons 11.06
E. General Considerations
(1) The means employed 11.09
(2) The publicity accorded to the victimization 11.10
(3) Mens rea 11.12
(4) Are damages recoverable and related problems 11.17
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12. Scandalizing a Court or Judge
A. Introduction
(1) The rationale of the offence 12.01
(2) The scope of the offence
(a) Which courts and tribunals may be ‘scandalized’? 12.04
(b) Reference to a judge’s conduct in his ‘official capacity’ 12.05
(c) The test of liability 12.07
B. Examples of Comment which Scandalizes a Court or Judge
(1) Scurrilous abuse 12.08
(2) Imputation of corruption, bias, and improper motives 12.13
(3) The legality of reasoned criticism 12.22
(4) Further relevant factors 12.24
C. Mens Rea 12.27
D. Possible Defences 12.31
(1) Justification 12.32
(2) Fair comment 12.35
(3) Qualified privilege 12.38
(4) Reports of judicial and Parliamentary proceedings 12.41
E. Comment Rarely Restricted in Practice 12.43
F. The European Convention on Human Rights 12.48
G. Possible Modification or Abolition of the Offence 12.53
H. A Parliamentary Convention 12.55
13. Further Miscellaneous Categories of Contempt
A. Obstructing Persons Officially Connected with the Court or
its Process
(1) Process-servers 13.01
(2) Receivers, liquidators, sequestrators, etc. 13.05
(3) Sheriffs, bailiffs, the Admiralty Marshal, and others 13.11
(4) Solicitors, counsel, and other officers of the Court 13.14
B. Interference with Persons under the Special Protective Jurisdiction
of the Court
(1) Wards of court 13.15
(2) Other cases 13.22
C. Breach of Duty by Persons Officially Connected with the Court
or its Process 13.26
D. Forging, Altering, or Abusing the Process of the Court 13.29
E. Preventing Access to Courts of Law 13.32
F. Instructing a Juror to Ignore a Summons 13.38
G. Divulging the Confidences of the Jury Room
(1) Common law in the United Kingdom 13.39
(2) Examples from some other common law jurisdiction 13.41
(3) The Contempt of Court Act 1981 13.42
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(a) To obtain, disclose or solicit 13.44
(b) Particulars of statements made, opinions expressed, etc. 13.46
(c) In the course of their deliberations 13.47
(d) Correcting or clarifying verdicts 13.51
(e) The exceptions of s. 8(2) 13.52
(f) Possible additional requirements including mens rea 13.53
(4) The European Convention and the Human Rights Act 1998 13.56
(5) Restrictions on research into the jury 13.59
H. Service of Process in the Precincts of the Court 13.62
I. Statements of Truth and False Disclosure Statements 13.63
14. Civil Contempt of Court
A. Disobedience of an Order Other Than an Order for the Payment
of a Sum of Money
(1) Examples of contempt
(a) Disobedience of judgments requiring an act to be done 14.02
(b) Disobedience of judgments prohibiting the doing of an act 14.07
(c) Breach of undertakings 14.10
(d) Contempt in labour disputes 14.13
(2) General considerations: practice, procedure, and powers of the
High Court, Court of Appeal, etc. 14.31
(a) The need for sufficient notice of the terms of the order 14.33
(b) Subsequent procedural requirements: proof of breach of
the order etc. 14.35
(c) Curing procedural irregularities 14.44
(d) Mens rea : intent and inability to comply 14.49
(e) Who may be held liable? 14.58
(f ) Irregular and void orders 14.100
(g) Powers of the court 14.108
(h) Developments in the National Industrial Relations Court 14.145
(i) The position of the party in contempt 14.150
(3) County courts: powers and procedure 14.155
(4) Magistrates’ courts 14.161
B. Disobedience of an Order for the Payment of a Sum of Money 14.166
Appendix 1 Contempt of Court Act 1981 715
Appendix 2 Selected Procedural Rules 733
Index 747
xxii
2
CRIMINAL AND CIVIL CONTEMPT OF
COURT
A. Introduction 2.01 E. Areas of Uncertainty 2.30
B. Punishment and Coercion 2.02 F. Possible Abolition or Reclassification
C. Criminal Safeguards in Civil of the Distinction
Contempt Proceedings 2.07 (1) The Phillimore Committee
recommendations 2.34
D. Consequences of the Distinction
(2) Breaches of injunctions as
between Criminal and Civil
criminal offences 2.35
Contempt 2.12
(3) Breaches of injunctions which are
(1) Imprisonment 2.13
contumacious or openly defiant 2.36
(2) The power to fine 2.16
(4) An alternative suggestion 2.39
(3) Settlement of the dispute and
(5) An American comparison 2.41
institution of proceedings 2.18
(6) The European Convention on
(4) Privilege from arrest 2.23
Human Rights 2.44
(5) Appeals 2.25
(6) Further consequences 2.27
A. Introduction
The general characteristics of criminal and civil contempt of court have been 2.01
noted in the previous chapter. Here it is proposed to consider the nature of the dis-
tinction between these two forms of contempt in more detail and to examine the
practical consequences which flow from it. It may be said at the outset that these
are far less important than was once the case although the distinction retains a
residual importance. As Lord Scarman explained in Home Office v. Harman:1
The distinction between ‘civil’ and ‘criminal’ contempt is no longer of much impor-
tance, but it does draw attention to the differences between on the one hand
contempts such as ‘scandalising the court’, physically interfering with the course of
justice, or publishing matter likely to prejudice a fair trial, and on the other those
contempts which arise from non-compliance with an order made, or undertaking
required, in legal proceedings. The former are usually the business of the
Attorney General to prosecute by committal proceedings (or otherwise): the latter,
1
[1983] 1 AC 280, 310, [1982] 1 All ER 532, 542, HL.
43
Criminal and Civil Contempt of Court
constituting as they do an injury to the private rights of a litigant, are usually left to
him to bring to the notice of the court. And he may decide not to act: he may waive,
or consent to, the non-compliance.
B. Punishment and Coercion
2.02 Although criminal contempt of court differs from the ordinary crimes in several
significant respects, proceedings for criminal contempt are nevertheless intended
to serve a punitive function to the same extent as proceedings for any other
offence. Thus if it is alleged that a person committed an assault in court, or that he
tampered with a witness, the purpose of instituting proceedings against him and
of any penalty ultimately imposed is the same whether the conduct is charged as a
criminal contempt punishable by committal, or as an assault or attempt to pervert
the course of justice punishable on indictment. However, in cases of civil con-
tempt where the complaint is of non-compliance with a court order or an under-
taking, the purpose and intended outcome of the proceedings will typically be
remedial or coercive. In the words of a leading American case:2
It is not the fact of punishment but rather its character and purpose that often serves
to distinguish between the two classes of cases. If it is for civil contempt the punish-
ment is remedial, and for the benefit of the complainant. But if it is for criminal con-
tempt the sentence is punitive, to vindicate the authority of the court.3
2.03 Although this general distinction is helpful, it has long been recognized that it is
an oversimplification. It may also be misleading when applied to English law in
that it obscures the punitive element which may lie behind civil contempt
proceedings. In particular it is now clearly established that a fine or committal
order may be imposed as a punishment for past disobedience even though the
contemnor has by then complied with the original order or undertaking.4 The
same is true of a case in which the original complainant no longer has an interest
in coercing the contemnor into compliance,5 or where the defendant by his
2
Gompers v. Bucks Stove and Range Co., 221 US 418, 441 (US Sup. Ct., 1911). See also
Goldfarb, Contempt Power, pp. 49–67; J. Moskovitz, ‘Contempt of Injunctions, Civil and
Criminal’ (1943) 43 Col. LR 780, 785–6 and cases there cited; E. C. Dudley, ‘Getting Beyond the
Civil/Criminal Distinction: A New Approach to the Regulation of Indirect Contempts’ (1993) 79
Va. LR 1025.
3
See also Fox, History of Contempt, p. 1; Oswald, p. 8; Wellesley v. The Duke of Beaufort (1831)
2 Russ. & M. 639, 665–8, 39 ER 538, 548 per Lord Brougham LC; Re Freston (1883) 11 QBD 545,
552–3, per Brett MR, CA.
4
Cf. Phonographic Performance Ltd. v. Amusement Caterers (Peckham) Ltd. [1964] Ch. 195,
[1963] 3 All ER 493; Steiner Products Ltd. v. Willy Steiner Ltd. [1966] 2 All ER 387, 390–1.
5
Cf. Jennison v. Baker [1972] 2 QB 52, [1972] 1 All ER 997 where the tenant no longer wished
to return to the flat from which he had been evicted although an injunction had been obtained
restraining eviction. For more general discussion see also Re Barrell Enterprises [1972] 3 All ER 631,
[1973] 1 WLR 19, CA; Danchevsky v. Danchevsky [1974] 3 All ER 934, CA; Enfield London
Borough Council v. Mahoney [1983] 2 All ER 901, [1983] 1 WLR 749, CA; below, paras.
2.13–2.17, 14.112–14.123 and 14.127–14.128.
44
Punishment and Coercion
actions in breach of the order or undertaking has rendered future compliance
impossible.6
This recognition of a punitive element does not mean that civil contempt is a 2.04
crime, although it may coincidentally be so, as when breach of an order against
molesting a person takes the form of an assault. Thus it seems, according to Lord
Atkinson in Scott v. Scott, that:7
if a person be expressly enjoined by injunction, a most solemn and authoritative
form of order, from doing a particular thing, and he deliberately, in breach of that
injunction, does that thing, he is not guilty of any crime whatever, but only of a civil
contempt of Court.8
The same point was made by Sir John Donaldson P when dealing with counsel’s
suggestion that in adopting a policy of open non-compliance with orders of the
National Industrial Relations Court, officials of the Amalgamated Union of
Engineering Workers were ‘as much anarchists as the members of the Angry
Brigade’. Sir John responded by saying:9
No official of the union would for one moment take part in or condone a criminal
act, and to suggest that Mr Hugh Scanlon (General Secretary of AUEW) or any of
his colleagues have anything in common with those who are responsible for actions
of the type associated with the Angry Brigade is disgraceful. The policy of the union
is unlawful, but it is in no way criminal.
It has been similarly held in another case involving breach of court orders in an 2.05
industrial dispute that wilful disobedience may properly be described as ‘illegal’.
The point arose in Clarke v. Chadburn where Sir Robert Megarry VC said:10
Wilful disobedience to an order of the court is punishable as a contempt of court,
and I feel no doubt that such disobedience may properly be described as being ille-
gal. If by such disobedience the persons enjoined claim that they have validly effected
some change in the rights and liabilities of others, I cannot see why it should be said
that although they are liable to penalties for contempt of court for doing what they
did, nevertheless those acts were validly done. Of course, if an act is done, it is not
undone merely by pointing out that it was done in breach of the law. If a meeting is
held in breach of an injunction, it cannot be said that the meeting has not been held.
But the legal consequences of what has been done in breach of the law may plainly
be very much affected by the illegality. It seems to me on principle that those who
defy a prohibition ought not to be able to claim that the fruits of their defiance are
good, and not tainted by the illegality that produced them. Accordingly, I think
that in their essentials the contentions of counsel for the plaintiffs are right, and the
6
As in Salmon LJ’s example in Jennison v. Baker of the flagrant breach of an injunction not to
kill an elderly spinster’s cat: see ibid. at pp. 65 and 1004–5 respectively.
7
[1913] AC 417, 456, HL.
8
See also Pooley v. Whetham (1880), 15 Ch.D. 435; O’Shea v. O’Shea and Parnell, ex p. Tuohy
(1890) 15 PD 59, 62 per Cotton LJ.
9
Goad v. AUEW (No. 3) [1973] ICR 108, 111 (NIRC). Emphasis supplied.
10
[1985] 1 All ER 211, 213, [1985] 1 WLR 78, 80–1.
45
Criminal and Civil Contempt of Court
resolutions of the N.U.M. changing their rules at their conference held on 11 and 12
July are void for illegality.
2.06 In several modern cases courts have gone further and have suggested that civil
contempt of court is a common law misdemeanour. It seems that such statements
originated in the unreported decision in Danchevsky v. Danchevsky (No. 2)11 and
were then repeated, apparently with approval, in later decisions of the Court of
Appeal.12 However, more recent decisions have concluded that civil contempt is
not a common law misdemeanour,13 although proceedings for civil contempt
have many of the safeguards usually associated with criminal proceedings. It is
submitted that this is the better view, although it may be subject to an exception
where disobedience is openly defiant.14
C. Criminal Safeguards in Civil Contempt Proceedings
2.07 Recognition of the quasi-criminal nature of proceedings for civil contempt has led
to a gradual assimilation of the two branches of contempt. This has been particu-
larly marked in the application of criminal standards and safeguards to civil con-
tempt proceedings. Re Bramblevale Ltd.15 is a case in point. The appellant was the
managing director of a property company which had gone into liquidation, and
he had failed to comply with a registrar’s order calling on him to produce the com-
pany’s cash book and the creditors’ ledger. The case came before Megarry J, who
regarded the defendant’s explanation that the books had been soaked in petrol in
the boot of his car, and had then found their way into a dustbin before the dead-
line for producing them as a ‘cock and bull story’. He committed him to prison for
an indefinite time, evidently being of the opinion that the books were still in his
possession. On appeal the Court of Appeal regarded this conclusion as being
based on ‘surmise rather than proof ’,16 and ordered his immediate release, Lord
Denning MR saying:17
A contempt of court is an offence of a criminal character. A man may be sent to
prison for it. It must be satisfactorily proved. To use the time-honoured phrase, it
must be proved beyond reasonable doubt. It is not proved by showing that, when the
11
(1977) 121 Sol. Jo. 796, [1977] CA Bound Transcript 416A per Lawton LJ.
12
See (e.g.) Lee v. Walker [1985] QB 1191, 1201, [1985] 1 All ER 781, 785 per Cumming-
Bruce LJ; Linnett v. Coles [1987] QB 555, 561, [1986] 3 All ER 652, 656 per Lawton LJ; and Dean
v. Dean [1987] 1 FLR 517, 520, 523 per Dillon and Neill L JJ.
13
See (e.g.) Garvin v. Domus Publishing Ltd. [1989] Ch. 335, 345, [1989] 2 All ER 344, 349
per Walton J; Cobra Golf Inc. v. Rata [1998] Ch. 109, 155, [1997] 2 All ER 150, 191 per Rimer J;
also El Capistrano SA v. ATO Marketing Ltd. [1989] 2 All ER 572, 584, [1989] 1 WLR 471, 485
per Balcombe LJ.
14
See further below, paras. 2.36–2.38.
15
[1970] Ch. 128, [1969] 3 All ER 1062.
16
Ibid. at pp. 137 and 1064 respectively, per Lord Denning MR.
17
Ibid. at pp. 137 and 1063 respectively.
46
Criminal Safeguards in Civil Contempt Proceedings
man was asked about it, he told lies. There must be some further evidence to incrim-
inate him. Once some evidence is given, then his lies can be thrown into the scale
against him. But there must be some other evidence.
The requirement that proof be ‘beyond reasonable doubt’ is highly unusual when 2.08
applied to proceedings which are not strictly criminal in nature. In such cases
English courts have usually applied the civil standard, requiring proof on the bal-
ance or preponderance of probabilities, but according to a flexible scale which rec-
ognizes the gravity of the decision which is being taken.18 Although this lesser
flexible standard has been applied in at least one subsequent English case,19 it is
now firmly settled that the criminal standard of proof beyond reasonable doubt
applies.20 The same position has been adopted in Canada,21 although in the
United States of America the standard appears to depend on the primary purpose
of the proceedings. Where this is coercive or remedial, as opposed to punitive, an
intermediate standard of ‘clear and convincing proof ’ appears to be sufficient.22
In Australia some courts, particularly in New South Wales, have proceeded on the
basis that the civil standard of proof applies, albeit that its application ‘may vary
according to the gravity of the fact to be proved.’23 However, the High Court of
Australia has now followed Re Bramblevale Ltd.24 and held that the criminal stan-
dard is to be applied in all cases.25 The possibility of confining this to cases where
the primary purpose of the proceedings was punitive was considered but rejected,
as being ‘a course fraught with practical difficulties’.26 It is submitted that this
decision represents the better view even if theoretically it makes the coercive
power of contempt more difficult to employ where the primary purpose of the
proceedings is remedial.27
18
The leading case is Secretary of State for the Home Department, ex p. Khawaja [1984] AC 74,
[1983] 1 All ER 765, HL; see generally Cross & Tapper, pp. 140–43.
19
West Oxfordshire District Council v. Beratec Ltd., The Times, 30 Oct. 1986.
20
See (e.g.) Churchman v. Joint Shop Stewards’ Committee of the Workers of the Port of London
[1972] ICR 222, 229, [1972] 3 All ER 603, 608 per Lord Denning MR; Heatons Transport Ltd. v.
TGWU [1973] AC 15, 50, [1972] 2 All ER 1237, 1247 per Lord Denning MR, CA; Deborah Building
Equipment Ltd. v. Scaffco Ltd., The Times, 5 Nov. 1986; Dean v. Dean [1987] 1 FLR 517, CA.
21
See (e.g.) Northwest Territories Public Service Association v. Commissioner of the Northwest
Territories (1980) 107 DLR (3d) 458, 479 per Laycraft JA (NW Territories CA); Tilden Rent-A-
Car Co. v. Rollins (1966) 57 WWR 309 (Sask. QB); Jetco Manufacturing Ltd. (1987) 31 CCC (3d)
171; Borrie & Lowe, p. 565, n. 16.
22
Oriel v. Russell, 278 US 358 (1929) (US Sup. Ct.); United Mine Workers v. Bagwell, 512 US
821, 826 (1994) (US Sup. Ct.); J. Moskovitz, ‘Contempt of Injunctions, Civil and Criminal’
(1943) 43 Col. LR 780, 818–19, and cases cited by McHugh J in Witham v. Holloway (note 25,
below), at pp. 545–6.
23
Jendell Australia Pty. Ltd. v. Kesby [1983] 1 NSWLR 127, 136–7 per McLelland J (NSW
Sup. Ct.), citing Rejfek v. McElroy (1965) 112 CLR 517, 521. See also Windsurfing International
Inc. v. Sailboards Australia Pty. Ltd. (1986) 69 ALR 534; New South Wales Egg Corporation v. Peek
(1987) 10 NSWLR 72, 81–3 (NSW CA).
24
[1970] Ch. 128, [1969] 3 All ER 1062, above, para. 2.07.
25
Witham v. Holloway (1995) 183 CLR 525; noted by C. J. Miller (1996) 112 LQR 539.
26
Witham v. Holloway (1995) 183 CLR 525, 545 per McHugh J.
27
A point noted by McHugh J in Witham v. Holloway (ibid. 548).
47
Criminal and Civil Contempt of Court
2.09 There are other respects in which proceedings for civil contempt have been held
to have acquired safeguards associated usually with a criminal trial. Thus it has
been held that the alleged contemnor cannot be compelled to answer interrogator-
ies or to give evidence against himself, and that the presiding judge has a discre-
tion to disallow cross-examination on an affidavit where this would operate
unfairly.28 Presumably, the analogy with criminal proceedings does not operate to
the disadvantage of the alleged contemnor so that adverse inferences should not
be capable of being drawn from a failure to give evidence.29
2.10 A privilege against self-incrimination has been similarly recognized in recent
cases,30 although the reasoning in support of it—which depends on a decidedly
strained interpretation of the Civil Evidence Act 1968, s. 14(1)(a)31—is not
wholly convincing. The privilege may be removed by statute,32 and respondents
to contempt proceedings may be required to disclose statements of witnesses etc.
in advance, although they cannot be used by the applicant unless and until they
are deployed by the respondent.33 There are doubts surrounding the question
whether the privilege may be invoked in respect of any contempt which may have
been committed in the very proceedings in which the privilege is sought to be
asserted. In a recent case,34 the defendant, who was subject to a ‘freezing’ or
Mareva injunction, had been ordered to attend for cross-examination as to his
assets. Arden J held that he was entitled to rely on the privilege against self-
incrimination in those proceedings in that his answers might expose him to future
proceedings for contempt. Some may find the result distinctly odd if, as it seems,
a person may decline to answer questions (or resist an application for disclosure of
particular documents) on the ground that compliance would establish a breach of
an earlier order and hence a contempt.35
28
Comet Products UK Ltd. v. Hawkex Plastics Ltd. [1971] 2 QB 67, [1971] 1 All ER 1141, CA.
The decision was followed in Exagym Pty. Ltd. v. Professional Gymnasium Equipment Co. Pty. Ltd.
[1994] 2 Qd. R. 6 (Qld. Sup. Ct.).
29
Cf. Criminal Justice and Public Order Act 1994, s. 35(2), which permits such inferences on
the ‘trial of any person . . . for an offence’.
30
See (e.g.) Cobra Golf Inc. v. Rata [1998] Ch. 109, [1997] 2 All ER 150 (Rimer J); Bhimji v.
Chatwani (No. 3) [1992] 4 All ER 912, [1992] 1 WLR 1158 (Knox J); Vidéotron Ltée v. Industries
Microlec Produits Electroniques Inc. (1993) 96 DLR (4th) 376 (Can. Sup. Ct.); contra Garvin v.
Domus Publishing Ltd. [1989] Ch. 335, [1989] 2 All ER 344 (Walton J).
31
Although civil contempt proceedings were not proceedings for ‘an offence’ they were regarded
as ‘proceedings’ . . . for the recovery of a ‘penalty’: sed quaere?
32
As in the Cobra Golf case (above, n. 30) where it was removed by the Supreme Court Act
1981, s. 72 (infringement of intellectual property rights). Quaere whether this would infringe Art.
6 of the European Convention on Human Rights? See above, paras. 1.65–1.67.
33
Re B (contempt: evidence) [1996] 1 FLR 239 (Wall J).
34
Memory Corporation PLC v. Sidhu [2000] 1 All ER 434.
35
In the Cobra Golf case Rimer J saw ‘much force’ in a submission that the privilege should not
be available on similar facts: see [1998] Ch. 109, 158, [1997] 2 All ER 150, 193; also A. Zuckerman,
All ER Rev. 1997, pp. 350–4; Cross & Tapper, pp. 460–61 and Crest Homes PLC v. Marks [1987]
AC 829, 859, [1987] 2 All ER 1074, 1082 per Lord Oliver.
48
Criminal Safeguards in Civil Contempt Proceedings
On related issues it has been held that the usual inability of a court to call evidence 2.11
in a civil case without the consent of the parties does not apply to a committal
motion for civil contempt. A subpoena may be issued irrespective of the wishes of
the parties concerned.36 More recent English cases have recognized that in princi-
ple the defences of autrefois acquit (or the rule against double jeopardy) and autre-
fois convict apply to civil contempt,37 as by analogy do the rules as to the joinder of
two or more defendants in one indictment.38 Other cases have allowed the alleged
contemnor to benefit from the more generous rules as to the admissibility of fresh
evidence on appeal associated with criminal, as opposed to civil, proceedings,39
and, in the absence of a formal limitation period, have drawn on the analogous
power to stay a criminal prosecution and struck out much delayed contempt pro-
ceedings as an abuse of process.40 No doubt there are other respects in which the
safeguards associated with criminal proceedings may be applied by analogy.41
However, this will not always be so and the Court of Appeal has held that an appli-
cation for committal following breach of an order in civil proceedings is civil in
nature, with the result that the provisions of the Civil Evidence Act 1968 relating
to the admissibility of hearsay evidence apply.42 Similarly, it has been said that in
giving particulars of alleged breaches of orders the analogy of counts in an indict-
ment does not have to be followed and the rules as to duplicity do not apply.43
36
Yianni v. Yianni [1966] 1 All ER 231 n., [1966] 1 WLR 120.
37
See Jelson Estates Ltd. v. Harvey [1984] 1 All ER 12, [1983] 1 WLR 1401, CA. On the facts
of this case the plea was unavailable since the alleged contemnor had never been in jeopardy on the
first notice of motion to commit for alleged breaches of an injunction covering, inter alia, deposit-
ing of industrial waste; El Capistrano SA v. ATO Marketing Ltd. [1989] 2 All ER 572, [1989] 1
WLR 471 (where the defence again failed as the defendant had not been in jeopardy on the first
application). See also Lamb v. Lamb [1984] FLR 278, CA (no power to sentence a contemnor twice
for the same contempt). But autrefois convict is not available when a defendant is charged in the
Crown Court, having been found to have been in contempt in a county court in respect of the same
assault: see Green [1993] Crim. LR 46; also Sherry [1993] Crim. LR 536, and above, para. 1.35.
38
Re A Company, The Times, 27 Dec. 1983 (Nourse J).
39
Irtelli v. Squatriti [1993] QB 83, [1992] 3 All ER 294, CA (breach of Mareva injunction).
40
Taylor v. Ribby Hall Leisure Ltd. [1997] 4 All ER 760, CA, applying Tan v. Cameron [1992]
2 AC 205, [1993] 2 All ER 493, PC.
41
Possibly (e.g.) the limited compellability of spouses of defendants (cf. Police and Criminal
Evidence Act 1984, s. 80) and the ability to waive the rules of evidence.
42
Savings and Investment Bank Ltd. v. Gasco Investments (Netherlands) BV (No. 2) [1988] Ch.
422, [1988] 1 All ER 975; cf. Re C (minors) (hearsay evidence: contempt proceedings) [1993] 4 All ER
690, [1993] 1 FLR 220. Aliter in a case of criminal contempt: see Shokoya, The Times, 10 June 1992.
The substantive provision for admissibility in civil proceedings, including those for civil contempt
of court, are now contained in the Civil Evidence Act, 1995. In Comet Products UK Ltd. v. Hawkex
Plastics Ltd. [1971] 2 QB 67, 75–6, [1971] 1 All ER 1141, 1146, Megaw LJ doubted whether a
defendant in civil contempt proceedings would be entitled to make an unsworn statement as in
ordinary criminal proceedings (see now Criminal Justice Act 1982, s. 72, which abolishes the right).
Similar doubts were expressed in the Supreme Court of Victoria in La Trobe University v. Robinson
[1972] VR 883, 895–6 per McInerney J. For further respects in which the rules governing civil pro-
ceedings may apply, see Borrie & Lowe, p. 660.
43
Harmsworth v. Harmsworth [1987] 3 All ER 816, 823, [1987] 1 WLR 1676, 1686 per Woolf
LJ. See, however, Practice Direction ‘Committal Applications’, supplemental to RSC Ord. 52 and
CCR Ord. 29 (Scheds. 1 and 2 to the Civil Procedure Rules 1998), paras. 2.5(2) and 2.6(2).
49
Criminal and Civil Contempt of Court
D. Consequences of the Distinction between Criminal
and Civil Contempt44
2.12 In spite of this welcome tendency to assimilate the two branches of contempt the
designation of a given contempt as civil, rather than criminal, or vice versa, may
continue to have certain practical consequences even though these are of dimin-
ishing importance. Formerly the distinction affected the term of imprisonment or
fine which might be imposed and the entitlement to appeal. These consequences
of the distinction have now disappeared. Other consequences include the ability
of the parties to institute proceedings and settle the dispute, and privilege from
arrest.
(1) Imprisonment
2.13 In a case of criminal contempt the superior courts have the power both to fine or
impose a term of imprisonment, and, it has been held, to order the giving of secu-
rity for good behaviour.45 According to the decision in Attorney-General v. James 46
the imprisonment must be for a fixed term although it remains open to the
offender to apply thereafter for earlier release.47 These points have since been con-
firmed by the Contempt of Court Act 1981, s. 14(1), which imposes a statutory
maximum of two years in the case of committal by a superior court, or one month
in the case of an inferior court. Also, the Crown’s power to pardon an offender
extends to a case of criminal contempt.48
2.14 Formerly civil contempt through non-compliance with a court order could be
dealt with by committal for a fixed or for an indefinite term. The form of the com-
mittal order and the duration of the term of imprisonment depended upon the
44
See, in general, H. Fischer, ‘Civil and Criminal Aspects of Contempt of Court’ (1956) 34 Can.
Bar Rev. 121; E. Harnon, ‘Civil and Criminal Contempts of Court’ (1962) 25 MLR 179; J. H.
Beale, ‘Contempt of Court, Criminal and Civil’ (1908) 21 Harv. LR 161; J. Moskovitz, ‘Contempt
of Injunctions, Civil and Criminal’ (1943) 43 Col. LR 780; Sir John Fox, ‘The Practice in
Contempt of Court Cases’ (1922) 38 LQR 185, 197–200; the Phillimore Committee report, paras.
168–76; Borrie & Lowe, pp. 655–64. A full and illuminating discussion is contained in the decision
of the Court of Appeal of the Supreme Court of Victoria in Broken Hill Proprietary Co. Ltd. v. Dagi
[1996] 2 VR 117, below, paras. 2.28–2.29.
45
Skipworth and the Defendant’s Case (1873) LR 9 QB 230 is a case in which an order was made
for the giving of security for good behaviour; RSC Ord. 52, r. 9, now located in the Civil Procedure
Rules 1998, Sch. 1.
46
[1962] 2 QB 637, [1962] 1 All ER 255, DC. Cf. Re B (J. A.) (an infant) [1965] Ch. 1112,
1123, [1965] 2 All ER 168, 175 per Cross, J.
47
Application for release is made under RSC Ord. 52, r. 8(1).
48
See Seaward v. Paterson [1897] 1 Ch. 545, 559, CA; Halsbury, vol. 9(1), para. 525. It has been
suggested that in a case of civil contempt the Crown might intervene and grant a pardon, but that it
would be unconstitutional for it to do so: see Sir Charles Russell AG arguendo in In the Matter of a
Special Reference from the Bahama Islands [1893] AC 138, 145, PC. See also A. T. H. Smith, ‘The
Prerogative of Mercy. The Power of Pardon and Criminal Justice’ (1983) 42 CLJ 398, 411–12.
50
Consequences of the Distinction
purpose for which committal was being employed. Committal for a fixed term
was appropriate where the objective was punishment for past disobedience.
However, where committal was being employed for a remedial or coercive pur-
pose an indefinite term might be preferable as carrying the maximum incentive to
comply with the original order. On compliance the contemnor could expect to be
released ex debito justitiae.49 Lord Denning MR expressed the distinction with par-
ticular clarity in Danchevsky v. Danchevsky,50 a case in which a husband had
refused to comply with an order for the sale of the matrimonial home. According
to his Lordship:51
It seems to me that when the object of the committal is punishment for a past
offence, then, if he is to be imprisoned at all, the appropriate order is a fixed term.
When it is a matter of getting a person to do something in the future—and there is a
reasonable prospect of him doing it—then it may be quite appropriate to have an
indefinite order against him and to commit him until he does do it.52
That an indefinite term is appropriate as an aid to coercion has been emphasized 2.15
in a number of American cases. For example in Re Nevitt Judge Sanborn observed
that the person subjected to such a term ‘carries the keys of his prison in his own
pocket’,53 and in Gompers v. Bucks Stove and Range Co. the United States Supreme
Court viewed a fixed term as being inappropriate as an aid to coercion, for then
‘the defendant is furnished no key, and he cannot shorten the term by promising
not to repeat the offence’.54 Whatever the force of these arguments, committal for
an indefinite term is no longer permissible in English law even in the case of civil
contempt. Parliament has taken the view that ‘any one put into prison for con-
tempt should know the maximum period for which he is liable to be kept in cus-
tody’.55 Accordingly the committal must be for a fixed term and the maximum
penalties are as set out in the Contempt of Court Act 1981, s. 14.56 However, the
possibility of an earlier discharge provides an incentive for compliance57 as does
the fact that a committal order for a fixed term may be suspended.58
49
See Re Freston (1883) 11 QBD 545, 557 (Fry LJ), 554–5 (Brett MR). On the facts the solicitor’s
disobedience was ‘accompanied by criminal incidents’ and the attachment was not mere process.
50
[1975] Fam. 17, [1974] 3 All ER 934.
51
Ibid. at pp. 21 and 937 respectively.
52
For a case in which justification for continued imprisonment was discussed both in terms of
punishment for past disobedience and as an aid to compliance through coercion, see Re Barrell
Enterprises [1972] 3 All ER 631, [1973] 1 WLR 19. For further discussion of committal for civil
contempt see below, ch. 14, esp. paras. 14.109–14.123.
53
117 F. 448, 461 (1902). The expression is criticized in Goldfarb, Contempt Power, pp. 59–60.
54
211 US 418, 442 (1911). The position in the USA is considered further below, paras.
2.41–2.43.
55
Enfield London Borough Council v. Mahoney [1983] 2 All ER 901, 907, [1983] 1 WLR 749,
757, per May LJ. This case is discussed below, para. 14.121. See also Linnett v. Coles [1987] QB
555, [1986] 3 All ER 652, CA where the point had been overlooked by the first instance judge.
56
See below, paras. 3.92 and 14.112–14.123.
57
See Enfield London Borough Council v. Mahoney (above, n. 55).
58
Lee v. Walker [1985] QB 1191, [1985] 1 All ER 781, CA; RSC Ord. 52, r. 7(1).
51
Criminal and Civil Contempt of Court
(2) The power to fine
2.16 While criminal contempt may be punished by the imposition of a fine for which
there is no statutory limit in the case of a superior court,59 the traditional view was
that a fine was neither a permissible, nor indeed an appropriate, outcome to pro-
ceedings for civil contempt.60 This view, which reflects the coercive function of
such proceedings, was reiterated by the High Court of Australia in Australian
Consolidated Press Ltd. v. Morgan.61 However, once it is accepted that a commit-
tal order may be made as a penalty for past disobedience,62 it must follow that a
court has the power to impose the lesser penalty of a fine. So much was assumed
in a number of English cases63 before the matter was finally settled beyond doubt
in Heatons Transport (St. Helens) Ltd. v. Transport and General Workers’ Union.64
Here Lord Wilberforce observed, in delivering the judgment of the House of
Lords reinstating fines totalling £55,000 imposed on the defendant union, that
‘the effective administration of justice normally requires some penalty for disobe-
dience to an order of a court if the disobedience is more than casual or accidental
and unintentional.65 The same approach has since been adopted by Australian
courts.66 Indeed in one Australian case the ability to fine was used to great coercive
effect since the court upheld both a fine of $10,000 for past disobedience and a
further fine of $2,000 for each day that a picket line was maintained by the defen-
dant union in breach of an injunction.67 Hence both punitive and coercive pur-
poses were combined in the same proceedings.
2.17 In principle there seems to be no reason why a suspended fine payable on contin-
ued disobedience after a specified period should not be imposed as an aid to coer-
cion, although, as is rightly noted in Borrie & Lowe,68 the possibility is not
recognized explicitly in the Rules of the Supreme Court69 or in the Contempt of
59
Contempt of Court Act 1981, s. 14. The maximum in the case of an inferior court is £2,500:
ibid. s. 14(2). Note, however, that by virtue of s. 14(4A) of the 1981 Act a county court is treated as
a superior court for present purposes.
60
See Fox, History of Contempt, p. 2; Justice, Contempt of Court, p. 23.
61
(1965) 112 CLR 483, (1965) 39 AJLR 32.
62
See above, paras. 2.03 and 2.14.
63
See (e.g.) Phonographic Performance Ltd. v. Amusement Caterers (Peckham) Ltd. [1964] Ch.
195, 201, [1963] 3 All ER 493, 497 per Cross J; Re the Agreement of the Mileage Conference Group
of the Tyre Manufacturers’ Conference Ltd. (1966) LR 6 RP 49, [1966] 2 All ER 849; Steiner Products
Ltd. v. Willy Steiner Ltd. [1966] 2 All ER 387: Re W (B.) (an infant) [1969] 2 Ch. 50, [1969] 1 All
ER 594; Re Galvanized Tank Manufacturers’ Association’s Agreement [1965] 2 All ER 1003.
64
[1973] AC 15, 78, [1972] 3 All ER 101 (below, paras. 14.14–14.17).
65
[1973] AC 15, 109, [1972] 3 All ER 101, 117.
66
See (e.g.) Flamingo Park Pty. Ltd. v. Dolly Dolly Creation Pty. Ltd. (1985) 57 ALR 247; the dis-
cussion in ALRC, Contempt, para. 506.
67
Australasian Meat Industry Employees Union v. Mudginberri Station Pty. Ltd. (1986) 161 CLR
98, (1986) 66 ALR 577 (Austral. High Ct.).
68
At p. 637.
69
Notably Ord. 52, r. 7(1) and Ord. 52, r. 9.
52
Consequences of the Distinction
Court Act 1981, s. 16, which deals with the enforcement of fines. Certainly a sus-
pended committal order for a fixed term is quite permissible.70 Moreover the sus-
pended fine is well known in the United States, as may be seen from the notorious
United Mine Workers case71 in 1947 when the Supreme Court ordered the pay-
ment of a $2,800,000 fine if the defendant union failed to comply with a labour
injunction within five days. However, the permissibility of this approach has been
re-examined in United Mine Workers v. Bagwell,72 an important decision of the
Supreme Court which is discussed below. A somewhat different approach is to be
seen in the English case of Con-Mech (Engineers) Ltd. v. Amalgamated Union of
Engineering Workers.73 Here the National Industrial Relations Court ordered
sequestration of assets to the value of £100,000, but postponed a final decision on
the amount of the fine which would become payable so as to give the union time
for further reflection. On continued disobedience of an order of the court
restraining unlawful industrial action, a fine of £75,000 was imposed. This form
of judgment differs somewhat from the suspended fine in that the defendant will
know only the general, rather than the precise, price of non-compliance.
(3) Settlement of the dispute and institution of proceedings
Another consequence of the distinction between civil and criminal contempt lies 2.18
in the ability to settle the dispute and to waive the contempt. In criminal con-
tempt ultimate control over the proceedings lies in the hands of the Crown,74 but
in civil contempt the traditional view is that it is open to the opposing party to
waive the breach.75 As Lord Diplock has said, ‘no sufficient public interest is
served by punishing the offender if the only person for whose benefit the order was
made chooses not to insist on its enforcement’.76 However, this traditional
view does not sufficiently reflect the fact that disobedience of a court order may
lead to an imprisonment or fine which is intended to be punitive rather than
70
Lee v. Walker [1985] QB 1191, [1985] 1 All ER 781; Re W (B.) (an infant) [1969] 2 Ch. 50,
[1969] 1 All ER 594, CA. The powers of a magistrates’ court are, however, limited to those
conferred by the Magistrates’ Courts Act 1980, s. 63(3) and no provision is made for suspending a
committal order: B (B. P. M.) v. B. (M. M.) [1969] P 103, s.n. B (B.) v. B (M.) [1969] 1 All ER
891. This is now subject to exceptions contained in the Family Law Act 1996, s. 50(1) (breach of
non-molestation orders etc.): see below, para. 14.164.
71
United States v. United Mine Workers of America, 330 US 258 (1947).
72
512 US 821 (1994).
73
[1973] ICR 620 (below, paras. 14.23–14.24).
74
Newton (1903) 19 TLR 627.
75
See (e.g.) Roberts v. Albert Bridge Co. (1873) LR 8 Ch. App. 753; Seaward v. Paterson [1897]
1 Ch. 545, 555 per Lindley LJ; Anon (1808) 15 Ves. Jun. 174, 33 ER 720; Woodward v. Twinaine
(1839) 9 Sim. 301, 59 ER 373; Yianni v. Yianni [1966] 1 WLR 120, 124; Halsbury, vol. 9(1), para.
462. See also E. Harnon, ‘Civil and Criminal Contempts of Court’ (1962) 25 MLR 179, 182–4;
Adriatic Terrazzo v. Robinson (1972) 4 SASR 294 (SA Sup. Ct.).
76
In AG v. Times Newspapers Ltd. [1974] AC 273, 308, [1973] 3 All ER 54, 71. See also the
statement of Lord Scarman in Home Office v. Harman [1983] 1 AC 280, 310, [1982] 1 All ER 532,
542 (quoted above, para. 2.01).
53