CA-2025-001272 - [2025] EWCA Civ 1048

In Elkndo v Elsyed Cobb J summarised the approach to sanctions/ penalty in cases where contempt had been proved by reference to nine points. Of particular relevance to this appeal are appoints 1, 2 and 9. Namely:

In Hale v Tanner [2000] EWCA 5570, 1 WLR 2377, Lady Hale LJ (as she then was) give guidance on sentencing for contempt of court when dealing with cases under the Family Law Act. She said:

“[25] In making these points I would wish to emphasise that I do so only in the context of Family cases. Family cases, it has long been recognised, raise different considerations from those elsewhere in the civil law. The two most obvious are the heightened emotional tensions that arise between family members and often the need for those family members to continue to be in contact with one another because they have children together or the like. Those two factors make the task of the court, in dealing with these issues, quite different from the task when dealing with commercial disputes or other types of case in which sometimes, in fact rarely, sanctions have to be imposed for contempt of court.

…

[27] Secondly, there is a difficulty as Mr Brett pointed out, that the alternatives are limited. The full range of sentencing options is not available for contempt of court. Nevertheless, there is a range of things that the court can consider. It may do nothing, make no order. It may adjourn, and in a case where the alleged contemnor has not attended court that may be an appropriate course to take, although I would not say so in every case…”

Hale LJ went on at para [36] to say that “an important part of the exercise is that the contemnor should understand the importance of keeping court orders, of not breaking them and the likely consequences if they are so broken”. I note that in Hale v Tanner the court was concerned with a first set of committal proceedings and, whilst reducing the length of sentence, the court upheld the imposition of a short immediate sentence of imprisonment.

The mother referred the court to Oliver v Shaikh [2020] EWHC 2658 a case where the contemnor had been ordered on numerous occasions to take down material from the internet. Nicklin J at para [17] said that:

“The following principles can be derived from Crystal Mews Limited -v- Metterick[2006] EWHC 3087 [8]–[13]:

i)

The object of sanction imposed by the court is two-fold: (1) to punish the historic breach of the court's order by the contemnor; and, (2) to secure future compliance with the order. In my judgment, if those objects in any way conflict in terms of sanction, then the primary objective is to secure compliance.

ii)

The sanctions available to the Court range from making no order, imposing an unlimited fine or the imposition of a sentence of imprisonment of up to two years. The Court has the power to suspend any warrant for committal…”

Nicklin J was summarising the judgment of Lawrence Collins J in Crystal Mews and it would appear that Nicklin J’s observation that “In my judgment, if those objects in any way conflict in terms of sanction, then the primary objective is to secure compliance” is his own obiter comment given that the direct quote of Larence Collins J taken from the judgment in Crystal Mews at para.[8], is:

“In contempt cases the object of the penalty is both to punish conduct in defiance of the court’s order as well as serving a coercive function by holding out the threat of future punishment as a means of securing the protection which the injunction is primarily there to do (see Lightfoot v Lightfoot [1989] 1FCR 305 at 308, Robinson v Robinson[2001] EWCA Civ 2098 at paragraph 11, Hale v Tanner[2000] 1WLR 2377 at 2381).”

It is not however necessary for the purposes of this judgment further to investigate the origins or basis for Nicklin J’s observation.