Contempt of court: Law Commission launches a consultation

Underlying the consultation is the Commission's proposal to do away with the long-standing distinction between civil and criminal contempt and to replace it with what it describes as "a modern, streamlined set of contempt laws." The proposal is that there will be three forms of contempt of court, namely:

• General contempt;
• Contempt by breach of court order or undertaking; and
• Contempt by publication when proceedings are active.

The Commission has provided details of examples of the kind of matter that will come within each of these contempt types and how they are to be commenced.

General Contempt

This will include matters such as abuse of witnesses and court staff, disrupting a hearing, or recording proceedings without authorisation. Contempt proceedings in such circumstances would be commenced either by the court itself or the Attorney General.

Contempt by breach of court order or undertaking

Examples of what would come under this heading are identified as transferring assets out of the country in contravention of a freezing order in a commercial dispute, protesters entering onto land in contravention of an injunction, and breach of anti-social behaviour injunctions (ASBIs). In such cases, contempt proceedings would be commenced by the litigant who obtained the freezing order in a commercial dispute, the landowner who obtained the injunction, or a local authority who obtained the ASBI. It is also proposed that such contempt proceedings are only to be commenced with permission of the court.

Contempt by publication when proceedings are active

This form of contempt will include media reporting or social media posts that create a substantial risk that the course of justice in active proceedings will be seriously impeded or prejudiced, such as where a publication reveals information that may not be admissible in evidence which may carry a risk of influencing a jury in a criminal trial. Such proceedings would only be commenced with the permission of the Attorney General or, more commonly, the Attorney General takes action by commencing proceedings.

Contempt of court in insurance claims

In the context of the insurance claims arena, whether it be casualty motor or property, issues of contempt of court most commonly arise in circumstances where fraud/fundamental dishonesty on the part of a claimant has been established.

The consultation is a lengthy one running to some 137 questions, not all of which raise issues of relevance to the insurance sector. Matters which we consider to be worthy of particular consideration by the commission include:

• In the context of the claims arena, notwithstanding that currently imposed sentences do not reach such a level, a punishment of two years is sufficient for the most serious types of contempt, for example, where a claim is a complete invention or if high sums of money are involved.
• Whether the current levels of punishment serve as a sufficient deterrent to the commission of fraud and, if not, whether tougher sentencing is required?
• In the context of insurance litigation, whether the scope of contempt extends beyond the parties to dishonest conduct on the part of their expert witnesses and legal representatives.
• If there is a case for strengthening sentencing guidelines provided to judges advising the imposition of more severe sanctions where dishonesty in a civil claim is established than is currently the case.

Responding to the consultation

DAC Beachcroft intends to respond to the consultation in respect of issues impacting the insurance claims arena and would, in formulating that response, welcome the opportunity of discussing with clients those aspects that impact their businesses.

If you would like to discuss a response, please contact a member of our strategic advisory team.