Very rarely do parties think about contempt of court when they set out to commence or defend litigation. Rather we tend to assume people will comply with the rules. If questionable conduct arises, it is important to swiftly understand the strategic issues, know when to act and how to mitigate damage.
What is contempt?
Contempt is an offence. It is an intentional act that, objectively, has a real and definite tendency to interfere with the administration of justice.
For conduct to be contemptuous, it must be “contumacious.” That means more than simply careless or discourteous behaviour; it must be perverse and wilful, either through deliberate defiance or an obstinate disregard for the court’s authority and due processes.
The laws of contempt are some of the common law’s oldest institutional offences and it is thus unsurprising that there are many different forms of the offence. Originally, contempt of court occurred only “in the face of the court,” meaning literally, inside the courtroom, such as storming out, or insulting a judicial officer. Today, most offences arise outside the court’s premises.
‘Criminal’ contempt may involve sub judice contempt (publishing material that risks interfering with the fair administration of justice), ‘scandalising the court’ (public attacks on judges or the institution itself, which impair public confidence in the judiciary), or contumacious disobedience of court orders and processes, for example, breaching suppression orders, or interference with witnesses. Prosecution for criminal contempt is generally initiated by the court to enforce its own authority.
‘Civil’ contempt concerns deliberate breaches of court orders or undertakings. Whilst, casual omissions or slips would not reach the threshold, serious failures to produce documents, ignoring injunctions, or non-compliance with the ‘Harman undertaking’ (a rule limiting the use of material obtained under compulsory court processes), may result in being charged with contempt. Civil contempt actions are usually brought by a party to proceedings, often by Notice of Motion.
Process and Penalties
Irrespective of whether the contempt is civil or criminal, proceedings are heard in the civil jurisdiction of the court, and serious or complex matters may be referred to a superior court. All offences must be proved beyond reasonable doubt
Penalties range from fines to imprisonment and may be imposed on individuals or corporations.
Making an assessment
When deciding whether contempt has occurred, context is everything. Purpose, timing and reach are central considerations – is the conduct capable of real prejudice, or is it a narrow, technical breach with limited effect?
Where contempt of court is a possibility, waiting to act can allow damage to spread and may blunt the court’s ability to provide an effective remedy. Knowing when and how to deal with it is critical for litigators.
The content of this article is intended to provide a general guide to the subject matter. Specific advice should be sought about your specific circumstances.
