“(1) In accordance with rule 39.2, all hearings of contempt proceedings shall, irrespective of the parties’ consent, be listed and heard in public unless the court otherwise directs. (2) Advocates and the judge shall appear robed in all hearings of contempt proceedings, whether or not the court sits in public. (3) Before deciding to sit in private for all or part of the hearing, the court shall notify the national print and broadcast media, via the Press Association. (4) The court shall consider any submissions from the parties or media organisations before deciding whether and if so to what extent the hearing should be in private. (5) If the court decides to sit in private it shall, before doing so, sit in public to give a reasoned public judgment setting out why it is doing so. (6) At the conclusion of the hearing, whether or not held in private, the court shall sit in public to give a reasoned public judgment stating its findings and any punishment. (7) The court shall inform the defendant of the right to appeal without permission, the time limit for appealing and the court before which any appeal must be brought. (8) The court shall be responsible for ensuring that where a sentence of imprisonment (immediate or suspended) is passed in contempt proceedings under this Part, that judgment is transcribed and published on the website of the judiciary of England and Wales.”
“(1) The court may make an order appointing a litigation friend. (2) An application for an order appointing a litigation friend may be made by— (a) a person who wishes to be the litigation friend; or (b) a party. (3) Where— (a) a person makes a claim against a child or protected party; (b) the child or protected party has no litigation friend; (c) the court has not made an order under rule 21.2(3) (order that a child can conduct proceedings without a litigation friend); and (d) either— (i) someone who is not entitled to be a litigation friend files a defence; or (ii) the claimant wishes to take some step in the proceedings, the claimant must apply to the court for an order appointing a litigation friend for the child or protected party.”
“(1) The following principles apply for the purposes of this Act. (2) A person must be assumed to have capacity unless it is established that he lacks capacity. (3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success. (4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision. (5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests. (6) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.”
“The principle of finality is of fundamental public importance … The successful party should not have to worry that something will subsequently come along to deprive him or her of the fruits of victory. The unsuccessful party cannot treat the judgment that has been handed down as some kind of rehearsal, and hurry away to come up with some new evidence or a better legal argument … there is a particular jurisdiction which permits a judge to change his or her order between the handing down of the judgment and the subsequent sealing of the order. But in most civil cases, the latter is an administrative function, and it would be wrong in principle to allow parties carte blanche to take advantage of an administrative delay to go back over the judgment or order and reargue the case before it is sealed. Hence it is a jurisdiction which needs to be carefully patrolled.”
“37. It is not feasible to state such a test. An evaluative judgment has to be made, but it has to reflect and respect the importance in this context of the principle of finality. Structured forms of discretion, where a general discretionary power exists but the exercise of the discretion is governed by principles which accord priority and greater weight to some factors over others, arise quite often in the law:..A judge exercising such a discretion will err in law if he or she does not act in accordance with the principles which govern that exercise. In other contexts, by contrast, a discretion may be more open-ended, such as in relation to ordinary case management decisions, and leave greater choice to the judge to decide the weight to be given to each factor.”
“The court should first consider (as a criminal court would do) the culpability of the contemnor and the harm caused, intended or likely to be caused by the breach of the order. In this regard, aggravating or mitigating factors which are likely to arise for consideration will often include some of those identified by Popplewell J in the Asia Islamic Trade Finance Fund case (see para 32 above). Having determined the seriousness of the case, the court must consider whether a fine would be a sufficient penalty. If it would, committal to prison cannot be justified, even if the contemnor's means are so limited that the amount of the fine must be modest. 40. Breach of a court order is always serious, because it undermines the administration of justice. We therefore agree with the observations of Jackson LJ in the Solodchenko case (see para 31 above) as to the inherent seriousness of a breach of a court order, and as to the likelihood that nothing other than a prison sentence will suffice to punish such a serious contempt of court. The length of that sentence will, of course, depend on all the circumstances of the case, but again we agree with the observations of Jackson LJ as to the length of sentence which may often be appropriate. Mr Underwood was correct to submit that the decision as to the length of sentence appropriate in a particular case must take into account that the maximum sentence is committal to prison for two years. However, because the maximum term is comparatively short, we do not think that the maximum can be reserved for the very worst sort of contempt which can be imagined. Rather, there will be a comparatively broad range of conduct which can fairly be regarded as falling within the most serious category and as therefore justifying a sentence at or near the maximum. 41. As the judge recognised, it may sometimes be necessary for the sentence for this form of contempt of court to include an element intended to encourage belated compliance with the court's order. Where that is the case, that element of the sentence is in principle one which may be remitted if the contemnor subsequently purges his contempt by complying with the order.”
“During the course of argument, a point that was raised in that regard by counsel for Ms Khan is that the judge had not in the present case proceeded by stating a starting point for his sentence and then applying an articulated discount to that starting point. That is an approach which has sometimes been adopted in the case of civil contempt's, as can be seen, for example, from the Hussain v Vaswani case where the judge stated that he was taking as his starting point a sentence of 18 months and then applied various discounts to arrive at his final sentence of 12 months. In the present case, however, the judge did not adopt that approach. 43. Counsel for Ms Khan did not suggest that there was any error of principle in not adopting that approach. He suggested, however, that it would have been helpful if he had adopted that approach. Furthermore, he suggested that this was something that would be beneficial if judges were to do it in future. 44. I do not accept that there can be any uniform approach when it comes to civil committal applications. Unlike criminal sentencing, sentencing in cases of civil contempt of court is not subject to any statutory provisions save as to the limit on the sentence that can be applied and as to the degree of remission that is to be applied. There are no guidelines from the Sentencing Council. Moreover, the case law shows that the correct sentence to be imposed is highly fact-specific. Yet further, as I have already discussed, a key factor in this jurisdiction is that of attempting to secure compliance, even if belatedly, with the court's orders. That is not a feature of criminal sentencing in most cases. 45. While there will be cases in which it can be useful for the court to take a starting point and then apply a discount, I do not think that it can be said that that will always be helpful. It is particularly in a case of the present kind, where there has been no real admission and no evidence either of compliance or of any intent to comply in future, that an approach of that kind is least likely to be helpful. In short, not only do I see no error in the judge's approach, but also I am not convinced that it would have been a helpful exercise for him to have attempted to articulate a starting point and a discount for the factors that he did take into account.”
“(a) whether the claimant has been prejudiced by virtue of the contempt and whether the prejudice is capable of remedy; (b) the extent to which the contemnor has acted under pressure; (c) whether the breach of the order was deliberate or unintentional; (d) the degree of culpability; (e) whether the contemnor has been placed in breach of the order by reason of the conduct of others; (f) whether the contemnor appreciates the seriousness of the deliberate breach; (g) whether the contemnor has co-operated. (h) whether there has been any acceptance of responsibility, any apology, any remorse or any reasonable excuse put forward.”
“Mr Hussain's second ground of appeal was that the Issuers should not have suggested to the judge that the maximum term of imprisonment of 24 months should be imposed, and that the judge had been wrongly influenced by this. Counsel for Mr Hussain relied in support of this ground upon the statement of Nicklin J in Oliver v Shaikh[2020] EWHC 2658 (QB) at [16] that “similar to the role of the prosecution in a criminal court where the court is considering sentence, the party seeking punishment of the contemnor does not urge the imposition of any particular penalty on the contemnor”
“…..the judge stated that he accepted the submission that some discount should be made for the absence of harm or prejudice. The extent of the discount to be applied was a matter for the evaluation of the judge. This Court is in no position to interfere with the judge's assessment. Indeed, it might again be said that the judge's assessment was a generous one: as my Lord, Nugee LJ pointed out during the court of argument, part of the point behind the powers conferred on the SRA by paragraph 9 of Schedule 1 of the 1974 Act is to enable the SRA's intervention agent, once the firm's files have been secured, to contact the clients of the firm to ensure that, apart from anything else, they are not without legal representation and advice. In circumstances where there has been an intervention, the former solicitor will no longer be able to act for the clients. Accordingly, they will need to instruct fresh solicitors. They may choose to instruct the intervention agent, they may choose to instruct a different firm, but they will not be able to continue to instruct the solicitor in question and they need to know that as soon as possible. Therefore, it is inherently likely that, if the solicitor refuses to deliver up the firm's files, clients will be prejudiced.”
“Both Orders were clear on their face and I have found that Ms Khan knew that she was acting in breach of both of them and understood the consequences of the failure to comply with them. Moreover, it was necessary for the SRA to obtain those Orders to compel Ms Khan to comply with her obligations to her regulator. Her failure to comply with the orders involved not only an attack on the administration of justice – as Miles J described it in Adams at [65] – but also defiance of her regulator. The powers of the SRA to intervene in a solicitors practice are intended to protect both members of the public and public confidence in the profession and there is a strong public interest in ensuring that solicitors co-operate promptly with the SRA. Finally, Ms Khan is a solicitor and should be held to a higher standard than an unqualified defendant.”