Contempt of court – showing disrespect for the authority of the Queen’s judges – is a familiar concept to the public. High-profile punishments doled out by judges for breach of non-molestation orders, for throwing laughing gas into the court’s ventilation duct or (in an extreme case) against jurors for refusing to determine a defendant’s guilt, have given this draconian prerogative extensive publicity.
However, away from criminal and matrimonial cases, contempt has a much lower profile. In commercial litigation, in particular, even extreme instances of contempt of court are rarely pursued. One reason for this is expense. With a criminal standard of proof to satisfy, and with no obvious financial return for the applicant, contempt proceedings are seen as an investment of last resort – for example, as a means of obtaining details of undisclosed assets.
More fundamentally, the outcome is too unpredictable. Clients faced with a realistic (high) estimate of the cost of contempt proceedings inevitably ask: “What will the court do if X is convicted?” The truth is that it depends largely, it seems, on which judge you get. It depends on that judge’s degree of indignation about what has happened, and their willingness to use the sentencing powers available to judges in cases of flagrant contempt.
Whereas a defendant in criminal proceedings will, if convicted, be sentenced according to tariffs and guidelines, a defendant in civil contempt proceedings could be extremely lucky or unlucky. Lucky were Messrs Tuppen and Singh who appeared before Mr Justice Park in 1999. He found that they had written a “pack of lies” in numerous affidavits. In breach of freezing orders, they had moved large sums of money from one undisclosed account in the Bahamas to another undisclosed account in Switzerland. Notwithstanding this, Judge Park gave the defendants three-month suspended sentences. Unlucky was Mr Russo, who appeared before Mr Justice Neuberger in August 2001. Like Tuppen and Singh, Russo had lied in affidavits about the whereabouts of assets held abroad. He was sentenced to two years’ imprisonment and served 16 months in Pentonville.
The circumstances of these cases are broadly comparable, but the penalties meted out are worlds apart. One man (with small children and ill parents) lost his liberty. The others simply walked free.
It is no answer that penalties for contempt in civil litigation only have a coercive function – to compel the defendant to do what they ought to have done. In Russo, Judge Neuberger emphasised that the court’s sentence had both a coercive and penal element. Nor can these conflicting decisions be explained by reference to laxer sentencing, overcrowded prisons and so on. Russo was sentenced in 2001, two years after Tuppen and
Singh, but the real difference lay in the attitude and indignation of the judge.
This sentencing lottery gives rise to two undesirable consequences. First, a claimant seeking effective penalties for non-compliance court orders simply does not know whether contempt proceedings are worth the trouble and expense. Perversely, that actually deters litigants from pursuing obvious contempts in the first place. Second, unscrupulous defendants, sensing that merely a suspended sentence or a small fine may come their way, will take a chance. They will hope that, even if their opponents take the trouble of initiating contempt proceedings, the judge will be at the ‘soft’ end of the sentencing spectrum.
Playing the judges lottery is clearly not a practice anyone would wish to condone. It is both essential and fair that the courts publish and implement some consistent guidelines on sentencing for flagrant contempt in civil proceedings – if not, this lottery will continue to attract some unsavoury punters.