It was great to host The Law Commission earlier today for their consultation event aimed at the social housing litigation aspects of the current proposals to reform the law on contempt of court. We heard from Dr Lawrence McNamara, the lead lawyer on the contempt of court consultation alongside Yasmin Ilhan. They presented the parts of the proposals that they considered to be most relevant, followed by an opportunity for attendees to comment and smaller group discussions.

Some of the issues discussed were broadly in line with my previous blog, with an opportunity to explore possible scenarios and implications of some of the proposed changes in more detail. For example:

• Could restorative justice be included in the wider sentencing options being proposed? 
• What would the impact be of the requirement for a defendant to have known of the terms of an order before he can be found in contempt for breaching them - and whether this is changing the current position or not? 
  • Here, we delved into the issues of service by alternative means and deemed service. 

In addition, we also considered:

• Whether as a procedural step permission should be required to make a contempt application for breach of an order.
  •  This proposal was included in the proposals in response to issues that were raised before the consultation where stakeholders explained that in some contexts contempt applications are issued to provide a tactical advantage in litigation only. 
  • The consensus at the event was that this isn't an issue in social housing litigation and the requirement for permission would not be a welcome change to the existing contempt of court procedure. 
• Who should be responsible for making a contempt application - the party wanting to enforce an order (in this case the landlord) and/or another independent body? 
  • It was agreed that landlords would want to retain the ability to bring a contempt claim. 
  • The ability of another body to enforce is unlikely to be helpful in this context. What would be helpful is some consistency as to whether a local police force will act on a power of arrest where relevant terms of an ASBI have been breached, but acknowledge that this is outside the scope of the consultation.
• Introducing some of the criminal procedure rules on evidence such as whether circumstances in which evidence was obtained make it unfair for the evidence to be admissible. 
• Proposals for legal aid to be means tested so that it matches the criminal eligibility and for the gap in legal aid protection on costs in contempt proceedings to be closed (currently no costs protection for legally aided civil contempt defendants as LASPO doesn't cover contempt applications).

It was great to be joined by social landlords, local authorities, tenant lawyers, representatives from social housing specialists chambers and the judiciary. Thank you to everyone who contributed their views. I am sure there is more that can be said on the subject than we were able to fit into a couple of hours at this event. 

Fortunately, we all still have a chance to do this as the deadline for consultation responses has been extended to 29 November 2024! 

Please take the chance to have your say. The Law Commission welcomes responses, whether formally as part of the consultation response (which you can do here or informally by emailing them. 

For more information

For more information on the consultation, please contact me.