The aim of this article is to consider certain aspects of Contempt of Court, acting in breach of an Injunction, and the consequences of doing so.
Contempt of Court is governed by the Contempt of Court Act 1981, otherwise known as statutory contempt, as opposed to common law contempt, although common law contempt is included at Section 6(c) of the 1981 Act.
It is beyond the scope of this article to consider the strict liability rule, and limitation of scope of strict liability, which will apply to publication of anything said or written anywhere which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced.
1. Injunctions and Penal Notices:
An injunction is an interim remedy to secure or prevent certain actions from occurring. For example, where a sum of money or documents are stored or deposited somewhere, and there is a risk that those monies or documents may disappear or be destroyed or tampered with respectively, an interlocutory or interim injunction may be granted. Those typical injunctions are known as a Freezing Order, to freeze assets/monies held in Bank Accounts (formerly known as a Mareva Injunction), or a Search Order, to preserve documents or data held physically or electronically (formerly known as an Anton Pillar Injunction). Such Orders are common in cases of civil fraud, and preventing monies from leaving the jurisdiction of England and Wales, or preventing incriminating documentation from being destroyed.
Such an Injunction usually carries a penal notice in terms generally as follows:
IF YOU DISOBEY THIS ORDER YOU MAY BE HELD TO BE IN CONTEMPT OF COURT AND MAY HAVE YOUR ASSETS SEIZED.
ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY ALSO BE HELD IN CONTEMPT OF COURT AND MAY BE IMPRISONED, FINED OR HAVE THEIR ASSETS SEIZED.
2. What is breach of an Injunction?
Section 6(c) of the Contempt of Court Act 1981 restricts liability for contempt of court in respect of conduct intended to impede or prejudice the administration of justice.
If a person disobeys the terms of an Order of Court which carries a penal notice, he will have breached the Injunction. As to whether such a breach constitutes contempt, will be considered on a case-by case approach according to the particular facts of the given case. The seriousness of the breach, and the question as to whether such action undermined or ‘laughed in the face of the Court Order’ so as to be contemptuous, will be determined by the Court. Obviously the more serious the breach so as to fall fowl of Section 6(c) of the 1981 Act, the greater will be the risk of a custodial sentence, or a larger fine.
So, if someone who is not named in an Injunction, but knows or is aware that his actions in turn may lead to undermine or destroy in whole or in part the subject-matter of the action, supposedly protected by the terms of an injunction, that action may constitute conduct intended to impede or prejudice the administration of justice, even though such intention is not the sole or principal intention of the contemnor. That was the position as set out in Attorney General v Times Newspapers Limited, The Times, February 12, 1983, HL.
The remedy of the third party whose conduct is affected by the Order is to apply to the Court for the Order to be varied. Attorney General v Punch Limited  UKHL 50.
3. What can the Court do if someone is in breach of an Injunction?
If the Court considers that the breach was intended to impede or prejudice the administration of justice, the Court has power to commit a person to prison, and/or impose a fine.
Not all Courts have the power to deal with applications for Contempt of Court. A Superior Court has greater powers than an Inferior Court.
Generally speaking, County Courts and High Courts do not have power to detain the contemnor in custody pending consideration of a sentence to be imposed, where a Judge is uncertain as to the appropriate sentence to impose. See Delaney v Delaney  QB 387 and Wilkinson v S  EWCA Civ 95.
Under Section 14(1) 1981 Act, a Superior Court can sentence a contemnor to prison for not more than 2 years. An Inferior Court can impose a sentence of up to 1 month. Whatever the sentence, it has to be for a fixed term, or else if committed for an indefinite period, the Order will be invalid Re. C (A Minor), The Times, July 22, 1985, CA.
Under Section 14(2) 1981 Act, an Inferior Court cannot impose a fine for more than £2,500. In a Superior Court, the fine is unlimited.
4. What is the basis for imposing a fine or imprisonment at all?
It is important to note that each fine or imposition of sentence is fact-specific according to the particular circumstances of a case. Judicial pronouncements should not be treated as sentencing guidelines.
There are 2 sentencing objectives as set out in JSC BTA Bank v Solodchenko (No. 2)  EWCA Civ 1241 which are:
(a) To mark the Court’s disapproval of the disobedience of its Order; and
(b) To secure compliance with that Order for the future.
This is a coercive objective, but if the Contemnor remains resolute in seeking to breach and disobey Orders of Court, the imprisonment will be nothing more than pure punishment Enfield London Borough Council v Mahoney  1 WLR 749, CA.
Professor David Rosen is a Solicitor-Advocate, Partner and head of Litigation at Darlingtons Solicitors, EC4A. He is a member of the London Solicitors’ Litigation Association, Strategic Director of the Association of Certified Fraud Examiners UK Chapter, and an associate Professor of Law at Brunel University Law School.
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