HAMDAN ALSHAMSI LAWYERS & LEGAL CONSULTANTS | View firm profile
I. WHAT IS “CONTEMPT OF COURT”?
Contempt of court takes place when, during legal proceedings, the administration of justice is or has the possibility of being prejudiced or impeded. For example, a person may be in contempt of the court if they commit certain acts, such as: (i) an order, judgment or undertaking has been breached or disobeyed; (ii) a party has made a false statement in a document verified by a statement of truth; and/or (iii) misconduct has occurred by a party during legal proceedings.
II. WHAT ARE THE PENALTIES FOR CONTEMPT OF COURT?
The court may impose a penalty on a party who is under contempt of court. The most common penalties being imposed include: (i) a fine; (ii) confiscation of a party’s assets or the asset in dispute; (iii) an immediate sentence; and/or (iv) a suspended sentence.
III. CONTEMPT OF COURT (IN THE DIFC & ADGM COURTS)
In the DIFC Courts, under the rules, contempt of court is defined as the power of the Court of First Instance or Court of Appeal to punish an individual under an order of committal, due to a breach of an order made by a court or a breach of an undertaking.
This order may be made by a single Judge of the applicable court or by way of application through a claim form or an application notice that is supported by an affidavit. The court, unless it directs otherwise, shall determine a hearing date to determine the committal application.
Should the Court find that a party is in contempt, the penalties that may be imposed are under the Court’s transgression, however, as indicated above, some of the most common penalties include: (i) a fine; (ii) a travel ban; (iii) an order to freeze a party’s assets or bank accounts; and if the previous punishments are insufficient, (iv) to refer the matter to the Attorney General.
Similarly, the ADGM has the same stance as the DIFC. The ADGM considers a party to be in contempt of the court if they: (i) willfully insult a person involved in the case during a Court session (i.e. a witness, Judge, or registrar, etc.); and (ii) Willfully commits misconduct during the proceedings.
Should the Court find a person to be in contempt of court, they may, as they see fit, (i) impose on the party a fine with the limit of AED 200,000,000; (ii) refer the matter to the attorney general of Abu Dhabi for further penalties if necessary; and (iii) make any further order as the Court considers necessary to achieve justice.
IV. HOW TO AVOID BEING IN CONTEMPT?
Throughout the committal proceedings, the Court may allow the Party that may be accused of contempt to be permitted a reasonable time to respond to the committal application and to raise a defense (if necessary).
Further, the court may allow the party alleged with being in contempt of court to: (i) apologize to the court; (ii) to explain his actions and behaviour, giving good reasons why they have made such actions; and (iii) if contempt is proven successfully, the opportunity to address the court on the penalties imposed.
V. CASE LAW & TRENDS FOR CONTEMPT OF COURT (IN THE DIFC & ADGM COURTS)
In recent cases, the prevailing trend is that the party accused of contempt must have intentionally breached a court order or undertaking.
During any committal hearing, a party in contempt must have been proven to have breached the law intentionally without them being negligent. Further, the accused party cannot claim that they were unaware of the order, as there is no need to show that the party was aware that they were acting in violation of a court order.
Recent case law trends suggest an emphasis towards the importance of clear evidence on the non-compliance of court orders, and suggests a high burden of proof on those who file a contempt application. There may be circumstances where enforcing contempt orders can be difficult, especially where there has been extensive dissipation of assets. The courts have used contempt to prevent transfers that deprive parties of their monies or compensation. Non-compliance with court decisions may result in harsh punishment. An example of this is in the case of Lateef and Lukman (acting through its attorney, Lateef) v Laamih, Labib, and Laeek ARB 021/2021, where the Court of First Instance held that each person under contempt was required to pay the claimant’s costs of the application for committal and for the decision of punishment to be referred to the Attorney General of Dubai for consideration.
VI. CONTEMPT OF COURT (IN OTHER JURISDUCTIONS)
The concept of being in contempt of court is not unique to the DIFC Courts, as it is derived from English law and extends across multiple jurisdictions. Each jurisdiction deals with contempt of court differently, which we explore below.
For example, in the United Kingdom (UK), contempt of court is governed by statute and common law. Being in contempt of court does not fall exclusively to civil cases, as parties in criminal cases can also be in contempt of court.
In civil cases, should a party find themselves under the contempt of the court, the court will impose a fine or imprisonment. In the case of Commercial Bank of Dubai PSC v Al Sari [2024] the defendants were found to be in contempt of court due to their continuous failure to comply with disclosure requirements under a worldwide freezing order. The Court of Appeal maintained the defendant’s 24-month jail sentences, and found that their failure to comply with the required directions was intentional and significant due to a failure to comply with asset disclosure rules required for the enforcement of a considerable debt judgement.
In criminal cases, should a party find themselves under the contempt of the court, the court will impose those in contempt, with fines and/or imprisonment. For example, in the case of Attorney General v Crosland [2021], the defendant revealed information before it was made public to the media, and due to his actions, the defendant was found to be under criminal contempt by the Supreme Court and was sentenced to a fine of GBP 5,000 and GBP 15,000 in costs.
Like the UK, the United States of America (USA)’s concept of contempt of court has two categories being civil and criminal. Civil cases usually seek to compel a party to comply with the given court order, whereas criminal cases often punish the activities that disrespect the court or attempts to obstruct justice.
An example of civil contempt in the USA is in the case of Taggart v. Lorenzen, 139 S. Ct. 1795 [2019], where the supreme court declared that a creditor who attempts to collect a debt in violation of a bankruptcy discharge order can be punished for contempt of court if there is no reasonable doubt as to whether the order prohibited the creditor’s action.
On the other hand, United States v Underwood [2023] is an example of a party being in criminal contempt. In this case, the Defendant was found to be in contempt of court for refusing to answer questions during cross-examination despite being cautioned by the judge, as this was found to be disrespectful because he had previously surrendered his Fifth Amendment rights by testifying.
VII. SUMMARY
In essence, although internationally the concept of contempt of court is different from one jurisdiction to another, the main idea is that being in contempt occurs when a party either deliberately lies to the court, disobeys a court order, or disrupts the application of justice. The consequences of being under the contempt of the court may be severe as the court may decide to punish you with hefty fines or, if severe, imprisonment.
Authors: Robert Whitehead – Partner & Head of DIFC and Rayan Bagundang – Paralegal