Committal Orders For Civil Contempt - The Last Weapon Available?

The Wall Street Journal recently reported that, under

the law of certain states in the US, individuals can be held in

jail for seemingly indefinite periods for contempt in the civil

courts, without ever receiving a criminal

charge.1 Steve

McCann and Ruth Lane of

Peters & Peters consider the position under English law.

The Wall Street Journal highlighted the case of a Mr H.

Beatty Chadwick, a former Philadelphia based lawyer who was ordered

to make a payment of $2.5 million into court in the course of his

own divorce proceedings. Thus far, Mr Chadwick has not managed to

persuade the Delaware Court that he cannot comply with that order

and has therefore languished in prison for civil contempt for the

last 14 years.

Under US and English law, civil judges have the power to commit

a party to serve a term of imprisonment for contempt of civil


Injunctions prohibit a Respondent from engaging in certain

activity (e.g. disposing of assets under a freezing injunction) or

require certain steps to be taken (e.g. to provide information

about what has become of certain assets under the

"tracing" information provisions of a freezing order), or

comprise a combination of positive and negative obligations.

Injunctions can be "interim", imposed as a preservative

measure in aid of a final determination, or permanent whereby the

injunction prohibiting certain conduct or activity is itself the

actual relief sought (e.g. to desist infringing intellectual

property rights).

An intention to breach the order in question is not a necessary

element for a contempt to be proved. Warrington J observed in

Stancomb –v- Trowbridge Urban District Council

[1910] 2 Ch 190 at 194:

"If a person or corporation is restrained by injunction

from doing a particular act, that person or corporation commits a

breach of the injunction, and is liable for process of contempt, if

he or it in fact does the act, and it is no answer to say that the

act was not contumacious in the sense that, in doing it, there was

no direct intention to disobey the


In the case of breaches of undertakings given to the Court,

Rimer J in Miller –v- Scorey [1996] 2 All ER 18

at 28 held that:

The question of whether or not a contempt in the

nature of a breach of an undertaking to the Court has been

committed involves an essentially objective test, requiring the

determination of whether or not the alleged contemnor has acted in

a manner constituting a breach of his undertaking. If he has, then

a contempt will ordinarily be...

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