Contempt—beware the 'right to silence'

Contempt—beware the 'right to silence'

15243083_xlIn the case of Khawaja v Popat and Popat [2016] EWCA Civ 362, the Court of Appeal has dismissed an appeal against an order for committal following the appellant contemnor’s breach of a freezing order.

In doing so, it:

  • upheld the Chancery Division’s decisions to draw adverse inferences from the appellant’s decision not to be cross-examined in the witness box
  • upheld the Chancery Division’s decision to dispense with the need for service under Rule 81.8 of the CPR where the appellant had suffered no injustice, not least because the material order had been made by consent
  • found the Chancery Division had not erred in ‘the exercise of its broad discretion’ in imposing a suspended custodial sentence

This judgment is of particular interest to practitioners in the practical implications of exercising a ‘right to silence’ and in the attitude the courts adopt to defects in contempt applications.

Practical implications

Evidence—parties to committal applications should give careful consideration to the evidence in support and in response to the application. In particular:

  • applicants are under an obligation to discharge the criminal burden of proof, namely they must prove their case beyond all reasonable doubt. As such, not only should they carefully prepare their evidence but they should also consider the evidence that may be given in response. In particular, they should bear in mind that the respondent cannot be compelled to go into the witness box where they wish to exercise their right of silence on grounds of self-incrimination. Accordingly, where applicants wish to challenge the respondent's evidence, they should consider applying for a requirement that the deponent attend for cross-examination and/or inviting (where appropriate) the court to draw adverse inferences
  • respondents can exercise a right to silence on grounds of self-incrimination. However, before doing so, they should be made aware of the adverse inferences that may be drawn should they choose not to be cross-examined, particularly where (as here) they have already set out their position in evidence submitted in response. They should also consider the extent to which any silence may, in fact, assist their opponent in discharging their burden of proof

Appeals—given the wide discretion afforded judges in determining committal applications and, particular, in imposing sentences for contempt, think carefully before seeking to appeal a committal order. As ever, it is generally better to seek to persuade the court at first instance rather than seek to overturn that decision on appeal

Application defects—although defects in the making of or pursuing an application for committal are not to be taken lightly, when seeking to challenge a committal application or order on grounds of defects in the application, focus on the 'quality' rather than 'quantity' of the defects. Here, the Court of Appeal was clear the fundamental consideration when waiving a committal application defect under CPR PD 81, para 16.2 is whether any injustice had been caused to the respondent

Further Guidance

Lexis®PSL Dispute Resolution subscribers can read a detailed analysis of this decision, including the Court of Appeal’s consideration of and approach to the right to silence and to defects in committal applications here: Contempt—beware the 'right to silence' (Khawaja v Popat).

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About the author:

Virginia specialises in general domestic and international commercial litigation, arbitration and alternative dispute resolution.

Virginia trained, qualified and practiced with Pinsent Masons before moving to Marriott Harrison where she continued in practice for a further seven years.

In practice, Virginia acted in a variety of general commercial disputes covering areas including  intellectual property, fraud, defamation, misrepresentation, breach of contract, debt recovery, breach of restrictive covenants and company and shareholders’ disputes.

Virginia is Head of Dispute Resolution at Lexis®PSL and, when not focused on the strategic development and operational requirements of the Dispute Resolution module, her content work focuses on case management and evidence in civil litigation. She also regularly contributes to the LexisNexis Dispute Resolution Blog.