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A right to silence

In recent years there has been something of a proliferation of contempt actions brought by defendants and/or insurers in the context of fraudulent…

In recent years there has been something of a proliferation of contempt actions brought by defendants and/or insurers in the context of fraudulent personal injury claims. Given that the sanction can often be a term of imprisonment, the stakes for the party accused of contempt (“the contemnor”) could hardly be higher.

The process for bringing a contempt action is complex, particularly in relation to actions that relate to a false statement of truth made in proceedings in the county court (Part 81 CPR). For example, permission is required from the High Court (CPR 81.18) and the application for permission must be made by way of a Part 8 claim form supported by a formal affidavit (CPR 81.14).

There are properly other procedural safeguards in place for the contemnor that relate to core legal rights and it is essential that these matters are raised in the proceedings and brought to the attention of the court and the contemnor. This includes a contemnor’s right to non-means-tested legal aid and the fact this right must be brought to his/her attention (CPR PD 81, 15.6).

In the recent case of Andreewitch v Magali Moutreuil [2020] EWCA Civ 382, the Court of Appeal has highlighted that a contemnor’s right to silence is also an essential procedural safeguard. It was alleged that the appellant was in breach of a court order preventing him using company funds in a certain way.

The respondent applied for his committal for contempt. The appellant was unrepresented at the hearing but indicated that he wished to waive his right to legal representation and legal aid. He had filed an unsigned statement and was invited to take the stand to swear to the truth of its contents. He was then cross-examined, and asserted that the payments had been in respect of the company's liability to pay him a salary and repay loans he had made to it. The judge found that he had been in knowing breach of the freezing order and that contempt was established.

The appellant submitted that he had not been informed of his right to silence and had not known that he did not need to give oral evidence. He alleged that the hearing was therefore procedurally unfair. His appeal was allowed. Whilst CPR PD 81 did not explicitly refer to the right of silence, there was a duty on a court hearing committal proceedings to ensure that the accused was made aware that they were not obliged to give evidence and also warned that adverse inferences might arise from exercising the right to silence. The choice of how to proceed belonged to the litigant and not to the other party or to the court and it was of particular importance when the litigant was unrepresented.

It is essential to remember that committal proceedings are criminal in nature and practitioners (and the court) must ensure that all relevant procedural safeguards are adhered to.

If the content of this update raises any issues for you, or you would like to discuss, please liaise with Peter Wake at peter.wake@weightmans.com.

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