11 Apr Procedure for contempt of a Court order
Procedure for contempt of a Court order
by George Coucounis
“It is conducted on the basis of affidavits, save the right for cross-examination”
THE Courts in the exercise of their powers issue orders, interim or final, by which they order a party to do or refrain from doing something, such as to deliver a property, not to alienate assets, to stop trespassing into a property, to demolish an illegal building, to allow a child to have contact with the other parent, a spouse not to enter or to leave the marital home and other orders. The party against whom an order has been issued is obliged to comply, otherwise he commits breach of the order of the Court, a behaviour that entails his punishment for contempt. The relevant procedure, despite its civil nature, is considered quasi-criminal and is governed by the rules of the criminal trial. The application for contempt of an order of the Court aims at punishing the offender and assumes the character of an offence which is subject to the rules of proving a criminal offence that must be proven beyond any reasonable doubt.
The procedure that should be followed in an application for contempt was examined by the District Court of Larnaca in a judgment issued on 9.3.2022, where the applicants requested to be allowed to give oral testimony, claiming that otherwise they would be adversely affected. The Court considered that the examination of the issue should be done in accordance with the legal basis and the nature of the procedure. It referred to article 42 of the Courts of Law, L.14/60, and added that according to the caselaw, this article is jurisdictional and determines the jurisdiction of the Court for the punishment of persons, physical and legal, for contempt of orders of the Court. It determines the means to ensure compliance with the orders by imposing a fine or imprisonment or by issuing an order for sequestration or attachment. It is an article of criminal nature and it creates an offence which is not of strict or absolute liability, but an offence that has both an objective and a subjective substance. Its objective substance (actus reus) consists in an act or omission which violates the order, while its subjective substance (mens rea) in an intentional disobedience, that is to say with an intent to disobey the Court order. The result is not sufficient; it must be proven beyond any reasonable doubt before the Court that there was a voluntary disobedience, given the consequences of the success of the application, which carries the risk of imprisonment.
The applicants, due to the nature of the quasi-criminal proceedings and the fact that they had the burden of proof, suggested that the application should be heard by oral testimony. The Court did not agree with their suggestion, referred to the amendment of O.48 R.4 which provides that the hearing of an application is conducted on the basis of the facts mentioned in the application or in the affidavits, save the right of cross-examination, as well as to the caselaw and the book “Injunctions” by David Bean. This authority explains that the respondent on his behalf is entitled to give oral testimony (if he wishes) regardless of whether he has filed an affidavit or testify under oath (in which case he may be cross-examined). It is made clear that there is no question of being forced to testify in the context of such a process, obviously given its nature, but if he choses to do so, he may be cross-examined.
Consequently, the Court held that the hearing of the application will be conducted on the basis of the affidavits, save the right of the respondent to testify (orally) under oath if he so wishes. This approach was considered to be the most appropriate, as it sufficiently takes into account that this is a quasi-criminal procedure with very serious consequences for the respondent if his disobedience is proven and thus his rights are fully secured with the options provided to him.
With regard to the applicants’ argument that they would be adversely affected if oral testimony was not permitted, the Court noted that since O.48 allows the filing of more than one affidavit, the procedure does not adversely affect the applicants. The Court may, with leave, allow certain matters to be brought before it or even exceptionally call for a testimony to be given and the respondent may, regardless of whether or not he filed an affidavit, choose to testify under oath by oral testimony and be cross-examined.