DID YOU BREACH A COURT ORDER IN JAMAICA?

A court order is not a suggestion. Once a court makes an order, the parties affected by it are required to comply unless the order is varied, discharged or otherwise altered by the court.

But what happens when someone is accused of breaching a court order? The answer is not simply that a breach has been alleged, so the person is automatically guilty of contempt. There are important procedural and evidential requirements that must be satisfied before a person can properly be found in contempt.

CONTEMPT OF COURT

In broad terms, contempt may arise where a person deliberately disobeys an order of the court. Where a person knowingly and deliberately fails to comply with such an order, the court may impose sanctions for contempt. The consequences can be serious and may include a fine or, in appropriate circumstances, imprisonment. However, an allegation of breach is not the same as a finding of contempt.

WAS THE COURT ORDER CLEAR?

The order must be sufficiently clear for the person affected by it to understand what is required. A person should not be exposed to punishment for contempt based upon an unclear or ambiguous obligation. This is particularly important where the applicant attempts to interpret an order more broadly than its actual wording.

The court will examine the order itself and determine whether the conduct complained of falls within the obligation imposed by the court.

One important element of the formal order that must be mentioned is the penal notice. A penal notice is a warning attached to the court order advising the person affected that failure to comply may result in punishment for contempt of court. In certain circumstances, an application may be unsuccessful where the penal notice was not attached to the Court Order, particularly where an order for committal is sought.

The Civil Procedure Rules contain requirements concerning penal notices in the context of contempt proceedings. Accordingly, where a contempt application is filed, the respondent's attorney should examine the Formal Order, the manner in which it was served and the other procedural requirements before addressing the substantive allegations.

THE APPLICANT MUST PROVE THE CONTEMPT

Even where the procedural requirements are satisfied, the applicant must prove the alleged contempt. In Margaret Gardner v Rivington Gardner [2012] JMSC Civ 160, the Court recognised the need for the applicant to establish both the breach of the order and the requisite mental element.

Accordingly, the applicant must establish that the respondent knowingly and deliberately breached a clear and enforceable order. Where the evidence does not establish a deliberate or wilful breach, the contempt application may fail.

CONTEMPT MUST BE PROVED BEYOND REASONABLE DOUBT

Contempt proceedings are serious because the court has the power to impose punitive sanctions. Accordingly, contempt must be established to the criminal standard of beyond reasonable doubt.

In Victoria Mutual Wealth Management Limited v Colando Hutchinson [2023] JMCA Civ 47, the Court of Appeal considered the principles applicable to contempt arising from the breach of a clear and unambiguous court order and reaffirmed the serious nature of contempt proceedings and the applicable standard of proof.

The applicant therefore has to do more than establish that a breach is possible or even probable. The evidence must satisfy the court to the required standard of proof beyond a reaosnable doubt.

WHAT SHOULD YOU DO IF YOU ARE ACCUSED OF BREACHING A COURT ORDER?

If you receive an application alleging contempt, it should be taken seriously and legal advice should be obtained promptly.

Your attorney should consider:

1. What exactly did the court order?

2. Is the order clear and unambiguous?

3. Was the order properly served?

4. Does the Formal Order contain the required penal notice?

5. What specific act or omission is alleged to constitute the breach?

6. What evidence supports the allegation?

7. Was the conduct deliberate?

8. Has the allegation been proved beyond reasonable doubt?

At the same time, a person should never simply ignore a court order because he or she believes it is wrong or unfair. The proper course is generally to seek legal advice and, where appropriate, apply to the court to vary, clarify or discharge the order.

THE BOTTOM LINE

Court orders must be respected. But contempt proceedings must also be properly brought and properly proved. A person does not become guilty of contempt simply because another party alleges that a court order has been breached.

The court must consider the terms of the order, the applicable procedural requirements, the evidence and the circumstances surrounding the alleged breach. Where contempt is alleged, both sides should therefore understand an important principle:

The authority of the court must be protected, but a person should only be punished for contempt where the requirements for contempt have been properly established.

This article is intended for general informational purposes only and does not constitute legal advice. The outcome of any particular contempt application will depend upon the wording of the order, the applicable procedural rules and the evidence before the court.

Winston R. Roberts, Attorney-at-Law