Clare Jones and Sian Evans analyse the courts' approach to committal applications during the COVID-19 pandemic.
Two recent High Court cases give some insight in to how the courts are dealing with committal applications during the current climate. Whilst neither of these cases related to anti-social behaviour injunction orders, they are useful in demonstrating how the court is attempting to balance the interests of applicants and respondents and ensuring that justice is done fairly against the backdrop of the COVID-19 restrictions. Both cases are examples of how judges have decided that during the COVID-19 pandemic restrictions, committal applications may be heard remotely and potentially in the absence of the respondent, depending on their previous conduct; but sentencing, once contempt of court has been found, should take place in open court, preferably with the respondent in attendance.
In Frejek v Frejek (7 May 2020) Roth J found that the respondent was in contempt of court for breaching the requirements of a court order, despite the respondent not attending the hearing that was being held remotely via Skype. Similarly, in Yuzu Hair and Beauty Ltd and another v Selvathiraviam (13 May 2020) Mann J found that the respondent was guilty of contempt for breaches of disclosure provisions in a freezing order in the context of a fraud claim. In this case, the respondent had actually emailed the court on the day of the hearing to request a last minute adjournment, stating that he had called an NHS helpline and they were sending an ambulance to take him to hospital.
Sanchez v Oboz and Oboz principles
In both cases, the judges considered the principles from the High Court case of Sanchez v Oboz and Oboz  in which Cobb J set out a checklist of considerations that may be useful when deciding whether an application for committal could proceed in the absence of the respondent(s).
The checklist includes, amongst other things, the following considerations:
- Whether the respondent has been served with the relevant documents including the notice of hearing
- Whether the respondent has had sufficient notice to enable them to prepare for the hearing
- Whether any reason has been advanced for the respondent’s non-appearance
- Whether an adjournment would be likely to secure the attendance of the respondent or facilitate their representation
- The extent of the disadvantage to the respondent in not being able to present their account of events
- Whether undue prejudice would be caused to the applicant by any delay
- The terms of the overriding objective.
In the Frejek case, the judge was satisfied, with reference to the above principles, that it was right to proceed with the committal hearing in the respondent’s absence. The respondent, amongst other things, had a history of non-engagement with the court and had been served with the documentation. In addition, prejudice had already been suffered by the applicant as a result of the respondent’s failure to comply with the order, and undue prejudice would be caused by a delay to the hearing. The judge in the Yuzu Hair and Beauty matter was also satisfied that it was right to proceed with the committal hearing. He acknowledged that it was unusual to refuse an adjournment requested by a respondent who required, or who claimed to require, an ambulance, but in this case there was previous evidence of the respondent exploiting medical conditions to avoid hearings.
The fact that in both these cases, the judge was willing to proceed with video hearings, despite the respondent’s non-attendance, could bode well for matters where there is an anti-social behaviour injunction order in place, the tenant has breached the order, and a committal application has been made. As long as proper care is taken to ensure that the tenant has been served with the documentation, is aware of the hearing, and has had ample time to prepare or obtain representation, then the tenant not attending, even if listed via video, may not be enough for the court to adjourn the committal hearing itself. The Sanchez principles include reference to the overriding objective (as detailed in Civil Procedure Rule 1), and judges will need to consider whether a respondent’s previous conduct would suggest that proceeding with a committal hearing without them present is the best way to deal with a matter justly, expeditiously and fairly.
In terms of ensuring that the correct steps have been taken ahead of the hearing for the committal application, it is also important to remember last year’s High Court case of Discovery Land Company LLC and other v Jirehouse and others . This case highlighted that there is a requirement, under Civil Procedure Rules Practice Direction 81.15.6(2), to ensure that a respondent is made aware of the availability of criminal legal aid and informed how to contact the legal aid agency. In this case the hearing was adjourned because the respondent had not been aware of this prior to the hearing. It is therefore best practice to, when personally serving an application for committal, advise the respondent in writing about the availability of criminal legal aid. This way, you will be able to show the court that the respondent was aware of this and hopefully avoid the hearing being adjourned.
However, it is also worth bearing in mind that even where a committal application is made and is successful, with the court finding that the tenant has breached the order and is in contempt of court, the court is unlikely to proceed to sentencing if the respondent is not present and the hearing is done via video. The Frejek and Yuzu Hair and Beauty cases both show the court’s preference for sentencing to take place in open court and ideally to have the respondent in attendance. As an indication of how the court will deal with a matter once a finding of contempt has been made where the respondent did not attend the committal hearing, the judge in the Frejek matter directed the issue for a bench warrant for the respondent to be apprehended and brought before the court for sentencing the following week.
In summary, the recent decisions in Frejek and Yuzu Hair and Beauty demonstrate the court’s willingness and efforts to ensure that committal applications are dealt with as fairly and expeditiously as possible, even during the current restrictions in place due to COVID-19. This extends to sentencing, with the court being reluctant, particularly where imprisonment is a possible sanction, to proceed without the respondent present.