The Law Commission’s proposal is to split the law of contempt into three separate categories:
- general contempt;
- contempt by breaching an order or undertaking; and
- contempt by publication when proceedings are active.
Social landlords and local authorities will be mainly concerned with category 2.
There are a few elements of the changes being considered that are of particular interest in the context of social housing litigation:
- Community sentences for contempt are being considered e.g. unpaid work, imposition of a curfew, a residence requirement, and undergoing mental health/alcohol/drug treatment. There will no doubt be cases where there is an overlap between the possible new penalties being considered and the injunction terms already sought (and that may well be being breached) and therefore where this is unlikely to add anything to the situation. But it is easy to envisage many other cases where some of these sorts of penalties would help to resolve a situation – such as Part 8 injunction claims for breach of tenancy/lease terms like the poor condition of the property, where you don’t have a statutory right to seek positive requirements in the initial injunction claim, but the imposition of mental health/alcohol/drug treatment would clearly be a massive benefit and where otherwise you don’t really want to pursue contempt proceedings which could only result in a fine and/or prison sentence or the only other alternative of seeking possession.
- The Law Commission is considering whether, in order to be able to make a finding of breach, there should be a requirement for proof that a breach was deliberate, that the Defendant knew they were bound by the court order and that they are aware of the facts that make the act or omission amount to a breach. They have clarified that this would not require proof that the Defendant knew of and understood the specific terms, just that they knew of and understood they are now subject to the terms of a court order: 'They should not then escape liability by having failed to acquaint themselves with its terms’. This clarification is extremely important as otherwise, it could make for an easy and concerning ‘get-out’ for Defendants seeking to evade a finding of breach. However, if this change is put into effect, it could still place an additional burden on landlords where the Defendant was not at the hearing when an order was made or an order made without notice to them. It could mean that when service is effected (usually by personal service), confirmation needs to be obtained and documented that service is acknowledged by the Defendant. And where a Defendant evades personal service, or there are other reasons why personal service is not practical or necessary, the scope for alternative service provisions could be more restricted if you also need to be able to prove that the Defendant actually became aware of the existence of the order.
- The Law Commission is considering abandoning the requirement for affidavit evidence and allowing normal civil witness statements instead. This would be a welcome change in my view and I routinely apply for the need for affidavit evidence to be dispensed with in contempt of court applications. Getting Affidavit evidence sworn is onerous for the witness and landlords, and there is now greater weight placed on the statement of truth in witness statements since the wording was updated. Where witnesses will be at court to be cross-examined, there is rarely any prejudice to the Defendant for evidence to be given in witness statement form.
- The Law Commission is considering introducing a suite of interim coercive remedies to compel compliance with court orders and undertakings. These would be designed to compel compliance with an order or undertaking, as opposed to punishing a breach after the event (which may not assist in resolving the original issue for which an injunction was sought). They would not require a finding of contempt at the criminal standard of proof. Such remedies could include payments made to court, confiscation of assets or confiscation of documents (such as a passport). It would be interesting to hear whether Landlords think this would be helpful to the issue of preventing and managing anti-social behaviour and breaches of tenancy/lease terms.
- The Law Commission acknowledge that there are no sentencing guidelines specifically on the issue of sentencing for contempt. They propose that guidelines should be developed by a judicial working group. I consider this a welcome suggestion that could help to bring clarity and consistency.
We have an opportunity now to ensure that the law of contempt works as best as it can for the enforcement of housing injunctions.
I would therefore encourage social landlords and local authorities to consider the proposals made and questions asked in the consultation paper and submit a response. It can be found here. The deadline to respond is 8 November 2024.
The housing litigation team here at Anthony Collins will be going through the consultation paper in detail to submit a response. If you would like to feed your comments and observations into our response, rather than submit your own, please feel free to get in touch.
Rebecca Sembuuze is a senior associate at Anthony Collins.