BL-2021-002235 - [2025] EWHC 2367 (Ch)

The second point relates to purging contempt. You do not purge your contempt merely by saying “I purge my contempt”. It is not like the magic words “Open sesame” to cause the doors of Ali Baba’s cave to open. Indeed, the first thing to make clear is that purging contempt is something that happens after sentence, not before. I note that the Contempt of Court Act 1981, section 14(1), now refers simply to “the power of the court to order [the contemnor’s] earlier discharge” from prison. This is because until the 1981 Act it was possible for the court to commit a contemnor to prison indefinitely, leaving it to the contemnor to apply for release on purging the contempt – if he can. Dickens’ Bleak House, Ch 1, contains a chilling description of the situation of such a contemnor:

“A sallow prisoner has come up, in custody, for the half-dozenth time to make a personal application ‘to purge himself of his contempt,’ which, being a solitary surviving executor who has fallen into a state of conglomeration about accounts of which it is not pretended that he had ever any knowledge, he is not at all likely ever to do.”

Like the 1981 Act, the current rule of procedure, rule 81.10(1), provides that

“A defendant against whom a committal order has been made may apply to discharge it.”

But there is no reference in the rules to “purging contempt”. And, in Longhurst Homes Ltd v Killen [2008] EWCA Civ 402, Hughes LJ (with whom Ward and Sedley LJJ agreed) said:

“16.

… Any person sentenced for contempt of court has the right, if he can establish genuine regret and a genuine promise as to future conduct, to make application to the court which sentenced him to purge his contempt.”

As to what actually is (or was) “purging” a contempt, in CJ v Flintshire Borough Council [2010] 2 FLR 1224, Wilson LJ said:

“6.

An application for an order for early discharge is often described as an application to purge the contempt. Speaking for myself, I regard the terminology of 'purging' a contempt as not particularly helpful, at any rate in the present context. To purge a contempt would in my view ordinarily mean to atone for a contempt, eradicate it or cleanse it of its previous ill-effect. Although a person committed to prison for breach of a mandatory order to do an act (such as to hand over a child, as in Corcoran v Corcoran [1950] 1 All ER 495) may reasonably be said to purge his contempt if he thereupon does the act or causes it to be done, the notion is less easily applied to an act which amounts to the breach of a prohibitory order and which, once done, cannot be undone.”

And Sedley LJ (who agreed with what Wilson LJ had said) added this:

“32.

In Harris v Harris [2002] Fam 253, [21], Thorpe LJ accepted that 'the application to purge is rooted in quasi-religious concepts of purification, expiation and atonement'. In such a context, while compliance with a mandatory order may be the kind of proof of contrition which a court can evaluate, contrition sufficient to purge a breach of a prohibitory order is much more elusive and, many people might think, not really the business of the courts. Their task is completed, subject to any appeal, at the moment of sentence.”

Aikens LJ gave a short concurring judgment in which he agreed with both of the other judges.

In the present case the respondent wrote the statements complained of some time ago, obviously before sentence. He cannot now unwrite them. So, there can be no purging of contempt in the technical sense. But of course the court in passing sentence can and should take into account words and conduct which would (after sentence) potentially amount to purging contempt in an application for early discharge from prison. It can amount to a form of mitigation.

Here, however, the order which the respondent has breached is a prohibitory order, and nothing that he can now do or say can undo what he has already done. The doubts and uncertainties are already out there. To go back to the Arabian Nights, the genie is out of the bottle. It is not like a mandatory order to do a positive act, which the recalcitrant contemnor can belatedly perform. Nevertheless, at a minimum, the contemnor could acknowledge the legal effect of the order of 5 April 2022, recognise his or her contempt as such, express contrition for it, and promise not to do it again.

Unfortunately, the respondent has done none of these. He does not appear to accept that the 2022 order has had, and will continue to have, legal effect until it is set aside, if it ever is. Nor has he clearly recognised his contempt as such, saying only that any breaches by him of the order were unintentional. Nor again has he apologised for those breaches. Nor indeed does he say that he will comply in future with the order of 5 April 2022.

Instead, he refers simply to his “ongoing willingness to comply with any lawful order of the Court,” and his willingness “to comply with any lawful order under due process” and “to comply fully with all future orders” (emphasis supplied). But we know that he considers the 2022 order to be void for alleged fraud on the court and failure to join the family trust. I have no doubt that, in his eyes, it therefore does not fall within the phrase “any lawful order of the Court” as used by the respondent. This is no mitigation at all.