The Three Paths of Justice by Neil Andrews

Author:Neil Andrews
Language: eng
Format: epub, pdf
Publisher: Springer Netherlands, Dordrecht

6.2 Enforcement of Injunctions

6.06 Injunctions must be backed by credible threats.39 The injunction was devised by the Court of Chancery. Before the 1870s that court had administered a separate procedure and set of rules and remedies, so-called ‘Equity’. The ‘Common Law’ courts had a separate jurisdiction. But the Supreme Court of Judicature Acts of 1873 and 1875 amalgamated these procedural systems. The Lord Chancellors, and other Court of Chancery judges administering this ‘equitable’ jurisdiction, had not been reluctant to enforce an injunction (effectively, an ‘equitable order’) by applying quasi-criminal sanctions against those who failed to comply with such an order. This tough approach towards breach of injunctions has survived the procedural changes of the 1870s, just mentioned. And so a person will be guilty of contempt of court if he breaches an injunction addressed to him. It is also an act of contempt to fail to comply with an order for disclosure of assets within a freezing injunction,40 or to fail to honour an undertaking made by a litigant (whether expressly or impliedly, under well-established rules) to the court.41 The representative mechanism can be used for effective injunctive relief against a disruptive unincorporated association (a ‘protest group’).42 In these various situations, non-compliance need not be deliberate or calculated.43 It is normally enough that the act or omission is not accidental.44 A party who disobeys an injunction will be guilty of contempt even if he later persuades the court to set aside the relevant order or injunction.45 Nor is this coercive regime confined to litigants. A non-party who receives notice of an injunction is guilty of contempt if he aids or abets breach of that injunction, or acts independently to undermine it.46

6.07 A company is in contempt of court if it breaches an order because of the conduct of its employee. This is so even if the company expressly prohibited such conduct. It is enough that the employee’s conduct took place within the course of his employment.47

6.08 A contemnor can be committed (that is, become subject to committal proceedings) for contempt of court.48 Civil contempt is classified as a quasi-criminal wrong. The standard of proof is ‘beyond reasonable doubt’ rather than the lower civil standard of proof ‘on the balance of probabilities’.49 In JSC BTA Bank v. Solodchenko (No 2) (2010) the court noted that, although the burden of proof is upon the party bringing the committal proceedings to prove that there has been contempt, and to prove all disputed facts concerning its effect, the contemnor has the burden on the balance of probabilities of demonstrating that he has purged his contempt.50 Hearsay evidence is admissible51 as well as statements made in earlier proceedings under compulsion.52 A person found guilty of contempt can be imprisoned for up to 2 years53 or fined. A custodial sentence can be suspended.54 The object of the penalty is to punish for defiance of the court’s order, but it can also be aimed at coercing the contemnor into complying with the order, to the extent that this remains possible.

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