This article addresses apparent defects in the standard form used in committal proceedings and the factors that may apply if the court is invited to exercise its discretion to waive such defects.
Family practitioners are well used to weighing up the value of hearsay evidence that is admissible in family proceedings where the matters are proved on the balance of probabilities. However, in committal applications, where the alleged contemnor’s liberty may be at stake, firsthand evidence is required to prove a breach beyond all reasonable doubt and the procedural aspects must be followed strictly. These requirements were summarised in a recently reported case: Wandsworth London Borough Council v Lennard  EWHC 1552 (Fam):
Having regard to FPR 2010 r 37 and the authorities, the checklist of cardinal requirements which it would be prudent for the court to remind itself of prior to the commencement of any committal hearing at which contempt of court for the breach of a previous court order was alleged included, among other things, the following: (i) the committal application had to be dealt with at a discrete hearing and not alongside other applications; (ii) the order, the breach of which the alleged contempt was founded on, had to contain a penal notice in the required form and in the required location on the order and had to be proved to have been personally served on the respondent, or it had to be proved that the respondent had been otherwise made fully and properly aware of its terms in accordance with the rules; (iii) the alleged contempt had to be set out clearly in a notice of application or document that complied with FPR 2010 rr 37 and 37.10(3), requiring that the summons or notice identify separately and numerically each alleged act of contempt; (iv) the respondent had to be given the opportunity to secure legal representation as he or she was entitled to; (v) the burden of proving the alleged breaches lay on the person or authority alleging the breach of the order; and (vi) the alleged breaches had to be proved to the criminal standard of proof, i.e. beyond reasonable doubt. A deliberate act or failure to act (actus reus) with knowledge of the terms of the order (mens rea) had to be proved.
Practitioners may well have experience of completing the standard form, which appears to have been in use from January 2002: Form N78. This two-page form is headed ‘Notice to Show Good Reason why an Order for Your Committal to Prison should not be made’. There is space to identify the alleged breaches, the Respondent is given a court date that s/he must attend and then it is said: ‘If the Court is satisfied that any of the allegations are true, it may order that you be imprisoned for your contempt of this Court’. There is then reference to ‘important instructions overleaf’, in bold print. The second page starts with ‘Important Notes’, the first of which begins: ‘The Court has the power to send you to prison if it finds that any of the allegations made against you are true’(emphasis added).
In Dad, application to commit  EWHC 2655 (Fam), in the context of the committal order itself, Holman J said of rule 37.9 of the Family Procedure Rules 2010:
"I emphasise from that rule the words "prominently displayed" and "on the front of the copy of the judgment or order served". I stress at once that the collection order made in this case was, and is, in the absolutely standard form that has been in regular use by judges of the High Court for many years. The actual order made in the present case shows in the top right hand corner that it is in a form that was revised in May 2011. I say at once that I personally have made a considerable number of collection or similar orders, such as location and passport orders, in these standard forms without appreciating until today that they all suffer the defect that there is no penal notice prominently displayed on the front of them. But if there is a failure to comply with an express requirement of rules of court, it is of course no justification to say that the failure to comply has been longstanding and routine.’
On the facts of the case, Holman J found that the warning (in the order itself) could no be said to have been "prominently displayed". It was “merely a part of several pages of somewhat indigestible text”.
The alternative sanctions
Para. 10.2 (4) the FPR 2010 rule 37A states: ‘the application notice must contain a prominent notice stating the possible consequences of the court making a committal order and of the respondent not attending the hearing. A form of notice which may be used is annexed to this Practice Direction’. That form of notice states (in part):
‘The Court has power to send you to prison, to fine you or seize your assets if it finds that any of the allegations made against you are true and amount to a contempt of court’ (emphasis added).
Readers may notice the absence of the words ‘fine you or seize your assets’ in Form N78 above, which refers only to ‘the power to send you to prison’. The absence of those additional words in the Notice proved fatal in the failure of an application to commit, heard locally recently in the High Court.
The discretion of the court to waive defects.
When faced with an application to commit drafted in the standard form which appears defective, Para 13 of Practice Direction 37A provides as follows:
"Striking out, procedural defects and discontinuance
13.1 On application by the respondent or on its own initiative, the court may strike out a committal application if it appears to the court –
(3) that there has been a failure to comply with a rule, practice direction or court order.
13.2 The court may waive any procedural defect in the commencement or conduct of a committal application if satisfied that no injustice has been caused to the respondent by the defect."
The courts have taken somewhat different approaches to the exercise of discretion. Thus in Re W (Family Proceedings: Applications)  EWHC 76 (Fam), Sir Nicholas Wall P said: 'There is abundant authority for the proposition that what matters in committal proceedings is justice, and that provided procedural technicalities do not interfere with the overall justice of the case, they can be overlooked. However, in The matter of H  EWHC 3761 (Fam), Mostyn J noted that PD 37A, para. 13.2 permitted the court to waive any procedural defect, reviewed the relevant authorities but held (obiter) that it was hard to envisage any circumstances where the terms of r.37.10(1) and (3) could be waived, given that the liberty of the subject was at stake.
It is obviously open to prospective applicants to amend the standard form to emphasise the consequences of breach and to add the missing words ‘to fine you or seize your assets’ to the standard form. If amendments have been not been made, there can no doubt be argument as to whether injustice has or has not been caused on the facts of the particular case. The rules and the case law are an object lesson for family lawyers, used to argument on the exercise of discretion by a judge, that in committal proceedings strict procedural rules apply.