The court was asked whether a defendant should be cross-examined on an affidavit sworn by him on an application by the plaintiff to commit him for contempt.
Held: The cross-examination was likely to cover issues in the action and on that basis it was held that it should not have been allowed. A person accused of contempt, like the defendant in a criminal trial, has the right to remain silent.
Where a respondent to an application for committal for contempt had chosen to deploy affidavit evidence before the court, the court had a discretion to allow cross-examination on the contents of those affidavits. However, the court must first be satisfied that the cross-examination will be confined to the allegations of contempt, rather than to wider matters relevant to the merits of the proceedings.
Lord Denning MR said: ‘This case raises questions of some importance. Mr Sparrow [Counsel for the plaintiffs] submitted that in proceedings of this kind the defendant can be compelled to give evidence even against himself. Mr Sparrow pointed out that this is a case of civil contempt and not criminal. The difference is well known. A criminal contempt is one which takes place in the face of the court, or which prejudices a fair trial and so forth. A civil contempt is different. A typical case is disobedience to an order made by the court in a civil action.
I cannot accept counsel’s submission. Although this is a civil contempt, it partakes of the nature of a criminal charge. The defendant is liable to be punished for it. He may be sent to prison. The rules as to criminal charges have always been applied to such a proceeding. I see that Cross J in Yianni v Yianni, so decided; and furthermore we ourselves in this court, in Re Bramblevale Ltd, said that it must be proved with the same degree of satisfaction as in a criminal charge. It follows that the accused is not bound to give evidence unless he chooses to do so. In this connection I quote what Bowen LJ said in Redfern v. Redfern [1891] P 139 at 147, [1886-90] All ER Rep 524 at 528:-
‘It is one of the inveterate principles of English law that a party cannot be compelled to discover that which, if answered, would tend to subject him to any punishment, penalty, forfeiture . . ‘no one is bound to incriminate himself”
This was not always the law in the case of civil contempt. In the days of Sir William Blackstone, 200 years ago, civil contempt was an exception to the general principle. In those days a plaintiff was entitled to deliver interrogatories to the defendant, which the defendant was bound to answer on oath. In his Commentaries (18th Edn, 1829, Bk4, page 287) Sir William Blackstone said that:-
‘this method of making the defendant answer upon oath to a criminal charge, is not agreeable to the genius of the common law in any other instance’;
and he went on to say at page 288:-
‘by long and immemorial usage,[it] has now become the law of the land’.
I am prepared to accept that such a rule did exist in the days of Sir William Blackstone. But I do not think it exists any longer today. The genius of the common law has prevailed. I hold that a man who is charged with contempt of court cannot be compelled to answer interrogatories or to give evidence himself to make him provide his guilt. I reject the submission that the defendant is a compellable witness in the contempt proceedings against him.’
Megaw LJ observed that where there is a bona fide application to cross-examine a deponent on his affidavit in interlocutory proceedings, the application should normally be granted.
Lord Denning MR, Megaw LJ
[1971] 2 QB 67, [1971] 1 All ER 1141
England and Wales
Cited by:
Cited – The Coca-Cola Company and Another v Cengiz Aytacli and others ChD 30-Jan-2003
The claimant having succeeded in an action against the defendants, now sought an order for their committal for contempt, accusing them of having given false evidence, and of having failed to comply with court orders made. The defendant asserted a . .
Cited – Inplayer Ltd and Another v Thorogood CA 25-Nov-2014
Appeal against a decision that the first defendant in a chancery action was guilty of two contempts of court by reason of untruthful statements in his affidavit. He complained of procedural irregularities affecting the fairness.
Held: ‘the . .
Cited – VIS Trading Co Ltd v Nazarov and Others QBD 18-Nov-2015
Application for the first defendant to be committed for alleged contempt of court for having failed to make disclosure of documents as required by a court order.
Whipple J said: ‘In this case, the extent to which the Defendants are in . .
Cited – Discovery Land Company Llc and Others v Jirehouse and Others ChD 7-Jun-2019
The first claimant had requested the committal of a defendant for his alleged failure to comply with undertakings he had given to the court. He now sought an adjournment saying that he had not been advised of the availability of legal aid, and . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice, Contempt of Court
Leading Case
Updated: 02 November 2021; Ref: scu.179891