CPR r 81.6 Isbilen v Turk [2021] EWHC 854 (Ch)

CPR 81.6 was introduced into the CPR in October 2020 as part of a major overhaul of the procedural framework governing contempt applications.

It imposes an obligation on the Court to consider, where a contempt of court may have been committed, whether to initiate contempt proceedings of its own motion.

The text of CPR 81.6 is as follows:

81.6 Cases where no application is made

(1) If the court considers that a contempt of court (including a contempt in the face of the court) may have been committed, the court on its own initiative shall consider whether to proceed against the defendant in contempt proceedings.

(2) Where the court does so, any other party in the proceedings may be required by the court to give such assistance to the court as is proportionate and reasonable, having regard to the resources available to that party.

(3) If the court proceeds of its own initiative, it shall issue a summons to the defendant which includes the matters set out in rule 81.4(2)(a)-(s) (in so far as applicable) and requires the defendant to attend court for directions to be given.

(4) A summons issued under this rule shall be served on the defendant personally and on any other party, unless the court directs otherwise. If rule 81.5(2) applies, the procedure there set out shall be followed unless the court directs otherwise.

This is a very odd provision in many respects:

• The Court should not act as prosecutor (deciding whether a contempt of court may have been committed, preparing the summons and then serving it) and judge (deciding whether, in accordance with the court's initial view, a contempt really has been committed). There is an obvious risk of apparent or actual bias and, worse, incorrect decisions being made that result in significant terms of imprisonment.
• Why should a private litigant who does not want to bring contempt proceedings, particularly if the result is uncertain and the cost high, be required to provide assistance to the Court?
• If you look at the summons that the Court has to fill out (Form N601), it has a number of peculiarities. For example, the Court has to give far less detail about the alleged contempt than a private litigant would (see box 11: the court has to state the facts "very briefly"). And the summons does not bear any statement of truth.

Four aspects of the Isbilen decision are to be welcomed.

Before noting them, we should explain that Isbilen was a case concerning whether a respondent to a worldwide freezing order had complied with the stringent disclosure obligations imposed on him shortly after service.

(1) The hierarchy of prosecutors

At [31]-[32] of the Isbilen decision, Deputy Judge Treacy confirmed the hierarchy of applicants in contempt proceedings:

• The most obvious applicant is the other party (or parties) to the litigation.
• If for whatever reason they do not seek to bring contempt proceedings, the next most obvious applicant is the Attorney General. It is the AG, after all, who is well placed to (i) decide whether it is in the public interest to bring a contempt application and (ii) prosecute the contempt application himself or (more likely) arrange for the Government Legal Department and Panel Counsel to act as prosecutors.
• It is only if these options fail that the Court should consider acting as prosecutor and judge under CPR 81.6.

(2) Proportionality and the overriding objective

Contempt proceedings take a lot of time, cost a lot of money, and distract the litigants from the civil dispute they have brought before the Court.

Accordingly Deputy Judge Treacy was absolutely right at [35] to say this:

"The emphasis on proportionality and on the overriding objective make clear that the commencement of contempt proceedings are likely to require significant consideration under CPR 81.6 only where they are in relation to “serious rather than technical” breaches; when they are “directed at the obtaining of compliance with the order in question”; “when they have a real prospect of success”; and when they involve “something of sufficient gravity to justify the imposition of a serious penalty”.

(3) A directions hearing to consider CPR 81.6?

Counsel for Mrs Isbilen, the claimant who had obtained the freezing order, suggested that the Court should exercise its CPR 81.6 power (rather than saying that his client would be making a committal application herself).

He then tried to make this submission more attractive by saying that the Court could list a directions hearing at which the exercise of its CPR 81.6 powers might be considered further.

Deputy Judge Treacy rightly rebuffed this suggestion.

• It would have been wasteful of Court time and expensive.
• It would have allowed Mrs Isbilen to try to persuade the Court to launch a contempt application under the guise of neutrality and at no risk as to costs.
• Most importantly, it would have been inconsistent with what CPR 81.6 actually says - it is for the Court to consider whether a contempt may have been committed and (if so) to proceed on its own initiative.

(4) No submissions

It follows from point (3) that, as Deputy Judge Treacy said at [42]:

"... the Court should not expect submissions on CPR 81.6 in the majority of cases. If regular and lengthy submissions relating to CPR 81.6 were expected in all cases where there was an arguable (or even an obvious) breach of a court order, or if the possibility of steps pursuant to CPR 81.6 were to become a frequent, rather than an unusual, part of litigation relating to disclosure orders, this could have the most unwelcome effect of leading to precisely the outcome cautioned against in paragraph 22 of Sectorguard as an increasing amount of the Court’s time and the resources of litigants might be devoted to issues relating to CPR 81.6."

A final word

Let us hope that the decision in Isbilen helps to persuade the Civil Procedure Rules Committee that CPR 81.6 was a serious mis-step.