Closes 8 Nov 2024
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We provisionally propose that establishing the circumstance element for contempt by breach of a court order or undertaking should require proof that there is:
(1) an order of the court, whether expressed as a summons or otherwise, that applies to the defendant, or
(2) an undertaking given by the defendant, provided the order or undertaking is accompanied by a penal notice or its equivalent.
Do consultees agree?
We provisionally propose that to establish the conduct element for contempt by breach of a court order or undertaking should require proof that the defendant failed to comply with the order or undertaking, regardless of whether significant consequences followed from the failure to comply.
We provisionally propose that to establish the fault element for contempt by breach of a court order or undertaking should require proof that the defendant knows that they are bound by the relevant court order.
We provisionally propose that to establish the fault element for contempt by breach of a court order or undertaking should not require proof that the defendant knows the precise terms of that order.
We provisionally propose that to establish the fault element for contempt by breach of a court order or undertaking should require proof that the defendant had knowledge of the facts that made the conduct a breach.
We provisionally propose that interim remedies should be available to the court in order to ensure compliance with court orders or undertakings without the court having to make a finding of contempt.
We provisionally propose that such interim remedies should be available where a court is satisfied that each of the elements of contempt by breach of order or undertaking has been made out.
We provisionally propose that the standard of proof to obtain an interim remedy should be the civil standard (that is, on the balance of probabilities).
We provisionally propose that interim remedies should only be available where any detrimental effect of non-compliance can be remedied by subsequent compliance.
We provisionally propose that the court should have power to order the following, fixed-term interim remedies:
(1) an order that the defendant pay a fixed, perhaps periodic, deposit of money into court (which would be returned upon subsequent compliance or otherwise forfeit subject to further order of the court following a finding of contempt);
(2) sequestration of assets, the property or proceeds of which would be forfeit subject to further order of the court following a finding of contempt; and
(3) an order that the defendant surrender a passport or any other document that would allow the defendant to leave the jurisdiction.
Should other interim remedies be available?
