Bringing proceedings for contempt against a professional | Sarah Phillimore | Child Protection Resource
H had a relationship with his daughter B but it broke down; he believed that this was due to the malicious influence of B’s mother and grandmother who encouraged her to become alienated from him. He make an application to the family court in 2013 to attempt to restore his relationship with his daughter, but to no avail.
He then ran out of money and could no longer afford legal representation. As a litigant in person he attempted to have a the mother’s solicitor and two Cafcass officers sent to prison for what he alleged were to their respective failings and breaches of court orders which had a negative impact on his case to have contact with his daughter. [See the judgment in the case of Dent, Mackay, Harman v H  EWHC 2090].
He alleged the mother’s solicitor had abused her position as a ‘trusted officer’
…to act in what was effectively a quasi-judicial manner when persuading [H] towards a slanted outcome’ by giving false legal advice in relation to H and Ms McKay in relation to international and/or European law and using deception and threats to achieve the outcome she sought for her client.
The court did not find that H’s application had any merit and went even further, striking out the applications pursuant to FPR 2010 r 4.4 as:
- disclosing no reasonable grounds for bringing the application; and
- an abuse of the court’s process, bearing in mind the overriding objective in FPR 2010 r 1.1; and
- the failure to comply with the requirements of FPR 2010
The case is essential reading for anyone who is contemplating these kind of proceedings and sets out clearly the necessary procedural and legal requirements.
It is crucial to be clear about what you say they did wrong
Part 37 of the Family Procedure Rules 2010, supplemented by Practice Direction 37A, applies to such applications. H sought committal orders under both Chapter 2 (breach of a judgment, order or undertaking to do or abstain from doing an act) and under Chapter 4 (interference with the due administration of justice). To proceed under Chapter 4, H needed the court’s permission to proceed (FPR r 37.13(1) and (2)).
FPR r 37.10 sets out how to make a committal application. This is using the Part 18 procedure in the proceedings in which the judgment or order made, or undertaking given. The application notice MUST
- set out in full the grounds on which the committal application is made and must identify, separately and numerically, each alleged act of contempt including, if known, the date of each of the alleged acts; and
- by one or more affidavits containing all the evidence relied upon.
It was vital that H was clear about what he was alleging the professionals had done wrong.
- In order to get the permission of the court to carry on with his application, the burden of proof was on H to show that the defendants had acted to interfere with the due administration of justice; and
- The defendants needed to know what they were defending themselves against; this is a very serious application that could end up with them in prison.
None of H’s committal application notices complied with the procedural requirements to set out the case precisely against the defendants and the court was not prepared to waive this procedural irregularity (see PD 37A para 13.2), because it can only do so when it is satisfied that no injustice has been caused to the defendant by the defect.
62. Here, the defects go to the very heart of the matter. Far from setting out in full the grounds on which each application against each Defendant is made with specific details of the alleged act or acts of contempt and the dates upon which they are said to have been committed, there is no specific information at all save for a series of very general allegations. I take the view that the notices as they stand would not provide any of these Defendants with the full particulars to which they are properly entitled. Serious allegations have been put before the court and H invites me to impose upon each a sentence of imprisonment which would have far-reaching and potentially devastating consequences in respect of their professional careers and livelihoods, quite apart from the deprivation of their personal liberty. Each has a right to know the case which is put against him or her.
Even if you are clear, the court may decide that committal is not in the public interest
The court also considered the case of KJM Superbikes Ltd v Hinton : Practice Note  EWCA Civ 1280,  1 WLR 2406. In this case, the Court of Appeal considered an application by a litigant in person to bring committal proceedings against a witness who was said to have made a deliberately false statement to the court in civil proceedings. The Judge at first instance (applying the Civil Procedure Rules, which are broadly similar to the FPR) refused permission because committal would be a disproportionate response and was not in the public interest. This was upheld on appeal.
The Judge in H’s case agreed with what was said by the Court of Appeal by Moore-Bick LJ at page 2412 :-
’16 Whenever the court is asked by a private litigant for permission to bring proceedings for contempt based on false statements allegedly made in a witness statement it should remind itself that the proceedings are public in nature and that ultimately the only question is whether it is in the public interest for such proceedings to be brought. However, when answering that question there are many factors that the court will need to consider. Among the foremost are the strength of the evidence tending to show not only that the statement in question was false but that it was known at the time to be false, the circumstances in which it was made, its significance having regard to the nature of the proceedings in which it was made, such evidence as there may be of the maker’s state of mind, including his understanding of the likely effect of the statement and the use to which it was actually put in the proceedings. Factors such as these are likely to indicate whether the alleged contempt, if proved, is of sufficient gravity for there to be a public interest in taking proceedings in relation to it. In addition, the court will also wish to have regard to whether the proceedings would be likely to justify the resources that would have to be devoted to them.
17 In my view the wider public interest would not be served if courts were to exercise the discretion too freely in favour of allowing proceedings of this kind to be pursued by private persons. There is an obvious need to guard carefully against the risk of allowing vindictive litigants to use such proceedings to harass persons against whom they have a grievance, whether justified or not, and although the rules do not prescribe the class of persons who may bring proceedings of this kind, the court will normally wish to be satisfied that the applicant was liable to be directly affected by the making of the statement in question before granting permission to bring proceedings in respect of it. Usually the applicant will be a party to the proceedings in which the statement was made, but I would not exclude the possibility that permission might be granted to someone other than a party if he was, or was liable to be, directly affected by it. In my view there is also a danger of reducing the usefulness of proceedings for contempt if they are pursued where the case is weak or the contempt, if proved, trivial. I would therefore echo the observation of Pumfrey J in the Kabushiki Kaisha Sony Computer case  EWHC 1192 (Ch) at  that the court should exercise great caution before giving permission to bring proceedings. In my view it should not do so unless there is a strong case both that the statement in question was untrue and that the maker knew that it was untrue at the time he made it. All other relevant factors, including those to which I have referred, will then have to be taken into account in making the final decision.’
Balancing the parent’s right to criticise against the professionals’ obligation to do their job
The judge pointed out that H’s complaint against the solicitor, ignored the fact that her professional duties lay with her own client, B’s mother.
She had no contractual relationship with H and at no time was her professional relationship with him impressed with any fiduciary or legal obligations. She had a professional obligation to act in the best interests of her client who, relying on the content of the Cafcass report, was unwilling to agree to an order for direct contact when such an order ran contrary to B’s clearly expressed views. Ms Harman had an obligation not to mislead the court. There is no evidence before me that she did so, still less that she fraudulently or knowingly practised a deliberate deception on the court.
It is clear that the ‘public interest’ test will be a high one in such cases and the court is likely to want to protect those who exercise public functions. The Judge went on to cite the judgment of the President of the Family Division In Re J (Reporting Restriction: Internet: Video)  EWHC 2694 (Fam),  1 FLR 523, which highlighted points of fundamental importance:
- the recognition of ‘the importance in a free society of parents who feel aggrieved at their experiences of the family justice system being able to express their views publicly about what they conceive to be failings on the part of individual judges or failings in the judicial system’.
- the acknowledgement that the ‘fear of … criticism, however justified that fear may be, and however unjustified the criticism, is, however, not of itself a justification for prior restraint by injunction … even if the criticism is expressed in vigorous, trenchant or outspoken terms … or even in language which is crude, insulting and vulgar’.
- But there is a fundamental difference between ideas, views, opinions, comments or criticisms, however strongly or even offensively expressed, and harassment, intimidation, threats or menaces. The one is and must be jealously safeguarded; the other can legitimately be prevented.
- The freedom of speech of those who criticise public officials or those exercising public functions, their right to criticise, is fundamental to any democratic society governed by the rule of law. Public officials and those exercising public functions must, in the public interest, endure criticism, however strongly expressed, unfair and unjustified that criticism may be. But there is no reason why public officials and those exercising public functions should have to endure harassment, intimidation, threats or menaces.’
1. Procedural irregularities ca be waived if it is in the interests of justice.
2. The procedural irregularities amounted to the application for Defendant 1 to be committed to prison being limited to his office not following the orders of the court. Unless someone is specifically named on the front page of a Penal Notice they cannot be liable for committal for not following orders. The court refused to allow a change of pleading so that Defendant 1’s conduct could be prosecuted under contempt for interfering in the administration of justice. Die to that refusal, the case against Defendant 1 was withdrawn.
3. Another procedural irregularity was that a single document of what would have been no more than two pages length was omitted. That document would have been a list of the wrongdoing of the professionals.
4. The primary evidence against the professionals was in the form of covert audio. It was irrefutable. The only way the court could refuse to accept the credibility of the evidence was to not allow it to be brought into proceedings. To begin with, all Defendants applied for the audio evidence to be struck out. The judge referred to the covert audio evidence as ‘illicit and unauthorised.’ The judge claims the audio revealed no evidence that the professionals were guilty as alleged. But the judge did not say why, nor has she revealed the standards against which she has tested the evidence. It was the contention of the applicant that the audio easily evidenced the allegations and the misconduct of Defendants 2&3 and qualified the case to proceed to trial despite the irregularities in the application, made by a litigant in person.
5. CAFCASS revealed further evidence of maladministration in this particular case after the judgement was made. That accompanied a report to the judge of her judgement. CAFCASS then withdrew their application for costs.
6. The judge states that the CAFCASS officers were sued in their professional capacity and the lawyer in her private capacity. This meant that the public purse bails out the CAFCASS workers and the lawyer can claim to the court for her costs. The lawyer’s firm consistently referred to themselves as being sued. They produced an incoherent and exaggerated claim, including the lawyer billing at top legal rate for herself despite being a defendant. In response, the judge has directed costs for her but refused to direct an amount.
7. The costs judgement reflects the maladministration of the CAFCASS office, but has not gone further to consider if the degree of maladministration impinged on the administration of justice and of not, why not. It seems quite obvious that a degree of maladministration as was apparent in this case qualifies for contempt.
I didn’t touch on the issue of recordings in the post as I was focusing more on the procedural requirements for a contempt application – but I agree it was not clear to discern what was the judge’s analysis of the evidential worth of the recordings.
I suspect that more and more recordings are going to be relied on in this way, given how easy it now is to record covertly. I hope the Transparency Project will soon be able to shed more light on how and when such recordings can be made/relied on.
She replied “No ,your honour, I’m trying my very best to hide it !”