Megarry VC said: ‘I should add this. Mr Burton made it explicit that he was not seeking to have any penalty imposed on any of the five defendants in respect of disobedience to any of the orders made on 10 July, even though he was founding the present application upon a plain breach of one of those orders. Not surprisingly, there has been some comment upon the inactivity of the courts in cases where an order of the court is being openly flouted and contemned. There are some who ask why the courts stand by and do nothing.
It is perhaps not generally realised that where the party who has obtained an order from the court is content that it should not be performed, the court, generally speaking, has no interest in interfering so as to enforce what the litigant does not want enforced. The order is made so as to assist the litigant in obtaining his rights, and he may consult his own interests in deciding whether or not to enforce it. If he decides not to, there may in some cases be a public element involved, and the Attorney General will judge whether the public interest requires him to intervene in order to enforce the order. If neither the litigant nor the Attorney General seeks to enforce the order, the court will act of its own volition in punishing the contempt only in exceptional cases of clear contempts which cannot wait to be dealt with, cases in which, in the words of Lord Denning MR, ‘It is urgent and imperative to act immediately’ . . I should add that I speak only of disobedience to orders, and not, for example, of contempts committed in the face of the court.
Whether this is a satisfactory state of the law is a matter of debate. In cases where (as in this case) there are political overtones, if not more, there are obvious difficulties in requiring it to be the Attorney General who determines whether the public interest requires him to intervene; for however strictly unpolitical a mind he brings to the decision, the opportunities for misrepresentation are almost unlimited. There seems to be a clear case for considering whether there should be some relaxation by the courts of their present restraint on themselves in enforcing their orders in cases where these are being openly flouted and the administration of justice is being brought into disrespect. For the courts to say, as they often say, that, ‘Orders of the court must be obeyed’, becomes idle if there are daily instances of open and notorious disobedience remaining unpunished. If the courts become more ready to enforce orders of their own motion, no doubt consideration should be given to the machinery by which this might be done. But I have to apply the law as it stands.’
Judges:
Sir Robert Megarry VC
Citations:
[1985] 1 WLR 78
Jurisdiction:
England and Wales
Cited by:
Cited – Jones, Re (Alleged Contempt of Court) FD 21-Aug-2013
The Solicitor General sought the committal of the respondent for alleged contempt of court. There had been repeated litigation between the respondent and her former husband as to whether the children should live in Spain with the father or in Wales . .
Lists of cited by and citing cases may be incomplete.
Contempt of Court
Updated: 11 May 2022; Ref: scu.514762