Civil contempt refers to the wilful disobedience of a court order in civil proceedings between private parties. The parties need not enforce the order. The State does not do so and has no interest in so doing, unless the parties so choose.
Civil contempt arises where a person wilfully fails to comply with a court order which is binding on him. Similarly, conduct designed to frustrate or undermine the court order is likely to be contempt of court. Civil contempt will usually refer to disobedience of orders as of court.
The party who holds the benefit of a judgment/order is entitled to apply to the court to have the order enforced, where the order specifically requires that an act be done or not be done. A person who refuses wilfully to obey a court order may be imprisoned until he purges his contempt, by agreeing to comply with it.
In the case of civil contempt, the court seeks to coerce compliance. In contrast, criminal contempt is dealt with as a punitive matter.
The dis-obedience of many court orders may be ultimately enforcement by way of attachment and committal. A stranger to inaction who aids and abets breach of an order, obstructs the course of justice and may be subject to punishment for contempt by committal and attachment.
Unintentional contempt without misconduct may be subject to punishment by way of costs rather than imprisonment or fine. Where there has been misconduct, the court may exercise a penal and disciplinary jurisdiction in the public interest. Misconduct may include wilful disobedience to any order or process or breach of undertaking given to the court.
Orders for payment of money are not enforceable by attachment or committal. See separate sections in relation to methods for enforcement for judgments for debt. It is not available for breach of an order which would involve imprisonment for debt which the defendant cannot afford to pay.
Where a fiduciary person holds moneys in his possession, fails to pay in accordance with a court order he may be attached and committed for contempt of court. The principle applies to executors, solicitors and others in a fiduciary position. Where they have received moneys they may not resist attachment for contempt on the basis that it constitutes a mere debt.
A person who is a trustee who has been ordered to pay money which he is admitted to hold cannot later claim he is a debtor for the purpose of immunity from attachment. This will be so even if he has paid his own creditors to evade his indebtedness as trustee or executor.
It is not necessary to prove fraud. It must be shown the money has been actually received. It is not enough that he was guilty of neglect. A trustee who holds funds for which is accountable, will be treated as having them in his position until he is properly discharged.
Injunction & Like Orders
An order of mandamus injunction or specific performance, if not complied with, may on application be the subject of committal of the person to whom the order is addressed, for contempt. Alternative remedies may also be granted, for example where applicable, the appointment by court of appoint another person to undertake the action ordered.
A person who is not a party to proceedings who obtains an order or in whose favour an order is made, is entitled to enforce obedience in the same way as if he were a party. Similarly a person not a party, but against whom a judgment or order is made is liable to enforcement in the same way as if he were a party.
Breach of an undertaking given by a person or body corporate in proceedings on foot of which the court takes a particular approach or makes a particular order, amounts to contempt of court. The undertaking must be made by or on behalf of the person concerned with his knowledge or consent in order to be binding on him.
Failure to attend under subpoena, in the absence of reasonable excuse is punishable, by, attachment. In a civil case, full conduct money must have been tendered with the subpoena.
A debtor who fails to attend meeting of creditors in bankruptcy or to give an inventory of his assets and creditors may be attached for contempt. A treasurer, officer or attorney of a bankrupt or agent of a bankrupt who fails to deliver moneys and assets in his possession, is guilty of contempt.
In the cases of civil contempt, an application is made to court, directing a person to appear before the court to answer the claim of contempt. An order of committal may be made, placing the person found to be in contempt in prison, until he or she renounces or purges his contempt.
Disobedience to orders other than those for debt may be enforced by attachment or committal. Judgment for recovery of an assets other than land or money may be enforced by attachment. Wilful disobedience of an injunction is subject to punished by committal.
The application is made on notice to the person concerned. Cases of contempt are dealt with summarily, by the courts. It is an exception to the principle that a jury trial is required for serious offences. The court may remit the matter to a judge, but this is a matter for the court’s discretion.
An order against a company or corporation may by leave of court, be enforced by attachment against its directors or officers. The court may alternatively make a sequestration order against its assets.
Directors who are not party to the action and prove their self to be attached must be served personally. If members of a corporation are sought to be attached, they must be served together with an affidavit specifying the nature of the alleged contempt.
When leave has been given to enforce an arbitration reward as a judgment an application and order for attachment on foot of its breach may be made.