The High Court has clarified the public funding arrangements for those facing an application to commit for breach.

It has been unclear since the commencement of LASPO how those facing imprisonment for contempt can obtain a representation order. The Legal Aid Agency routinely rejects any application for civil funding. It does not appear from the application form CDS 14 for criminal funding hat that is the appropriate route either. Nonetheless even an impecunious Defendant facing prison for contempt must be entitled to representation. The issue has been very recently settled in Kings Lynn v Bunning 2013 EWHC 3390 (QB). An application on CDS 14 should now succeed. The limit on funding can be raised on application to the High Court. We were instructed for a co-defendant in that landmark case.

The High Court has reaffirmed the requirement that proceedings particularly those where the liberty of the citizen is at stake should take place in public.

In ruling on an application to commit on a privacy injunction (so called super-injunction) the High Court strictly followed the practice guidance given by the Lord Chief Justice and the President of the Family Division on 3 May 2013 publicly naming the party committed for contempt, delivering a judgment in public with reasons for the committal and ordering that a transcript of the judgment be made available at public expense. Mr Justice Tugendhat gave judgment on the committal on 14 January 2014.

An application to commit the Defendant for contempt was made. It was alleged that there had been numerous breaches of a privacy order by the Defendant contacting the Applicant directly by telephone, sending text messages and emails. Some of this contact had occurred in person directly in person in and other contact was through solicitors. All was in apparent breach of the undertakings given by the defendant.

The approach adopted by the High Court following practice guidance from the Lord Chief Justice on this application to commit undermines the purpose of a super injunction. Any party minded to seek such protection should have in mind that if he or she wishes to retain secrecy enshrined in the order then the order is unenforceable certainly by means of an application to commit for contempt. Solicitors and counsel advising in such cases will need to warn clients that should there be a breach of the order any application to commit is likely to be substantially heard in public and the name of the contemnor will be published thus defeating the anonymity order. There is a risk in such circumstances that the Applicants secret will be exposed as will the fact that he or she was willing to go to great lengths to keep the secret. Advice to a Claimant/Applicant in such cases needs to be given early in the process. Once an application to commit is made supported by evidence it is not within the gift of the Applicant to withdraw the proceedings. The victim in such cases is the court rather than the Claimant/Applicant.

Claimant/Applicants should also consider that the committal proceedings do not only concern liability i.e. is there a breach of the order or not. The penalty must also be determined. It is difficult to imagine circumstances where albeit that a breach is made out on the evidence there will not also be issues of fact relevant to determine the seriousness of the breach and mitigating circumstances which will need to be established. There is a real risk that such matters will be aired in public.