Committal proceedings (from 1 April 2022)

Consider the following before applying

Whether the respondent has breached a court order.

Whether the court order has to be personally served on the respondent.
• Not every court order must be personally served.
• However, some court orders must be personally served before you can apply for a committal order. For example, an order for the examination of an enforcement respondent under Order 22 Rule 11(5) of the Rules of Court 2021 and an order to attend court under Order 15 Rule 4(3) of the Rules of Court 2021 must be personally served.

Whether other possible enforcement options are available.
• Committal is a measure of last resort.
• You should consider other possible enforcement options before you file an application for permission.

Note the following when applying for permission

The application is made without notice (without the respondent being served the application). If the court order breached by the respondent is in an ongoing matter, you may file a Summons (Without Notice). Otherwise, you should file an Originating Application (Without Notice).

The application must be accompanied by an affidavit (the permission affidavit) with the following details.
• The applicant’s name, description and address.
• The respondent’s name, description and address.
• The reasons for applying for the committal order. Applicants should identify the court order that was breached, the reasons it was breached, and facts showing that the respondent knew about and intentionally breached the court order.

Attend court, if needed

After you have filed the application for permission, the court may make orders or issue directions based on the documents filed. Alternatively, the court may fix a hearing for you to attend.

The court will look at the applicant’s evidence to see if the required documents have been filed and whether the evidence suggests a breach of the court order by the respondent.

The court will not go into the substantive merits, which will instead be dealt with as part of the application for the committal order.

The hearing may lead to the following outcomes.
• An adjournment, if the court requires the applicant to address additional points or provide additional evidence in exceptional circumstances.
• A dismissal.
• A granting of permission, which allows the applicant to proceed to file the application for the committal order.

Extract the permission order and file the application for a committal order

Applicants will need to follow up and extract the permission order, which is required to file the application for a committal order.

You will also need to ensure that the application for a committal order is filed within 14 days from the date that the permission was granted.

Note the following when applying for a committal order

The application for a committal order is filed as a Summons.

An affidavit does not have to be filed, as the permission affidavit would have already included the relevant materials.

Serve documents on the respondent

Applicants must personally serve the following documents on the respondent.
• The Summons (Without Notice) for the application for permission.
• The permission affidavit.
• The permission order.
• The Summons for the application for a committal order.

Personal service of the documents must be done at least 21 days before the hearing of the application. If it is impractical to effect personal service, you may apply for an order for substituted service.

After service is effected, you should file an affidavit of service to show when and how the documents were served on the respondent. This should be done before the hearing of the application for a committal order.

Attend the hearing in open court

A hearing will be fixed in open court. The court will hear the submissions and arguments made by the applicant and the respondent. The respondent should file an affidavit to set out the evidence he wishes to rely on before the hearing.

The court may decide to adjourn the hearing to give the respondent an opportunity to comply with the court order and purge the contempt.

If an adjournment is not given, the court will have to consider two main issues to decide on the outcome of the hearing.

The first issue the court must decide is whether the respondent has committed contempt of court.
• The court will consider what the court order required the respondent to do, and whether the respondent has fulfilled or breached the terms.
• The applicant must also show beyond reasonable doubt that the respondent had acted intentionally and knew of all the facts which made his conduct a breach of the court order.
• The court will also consider whether defences available to the respondent apply.

The second issue the court will consider is whether punishment is appropriate.
• The punishment may take the form of a fine, imprisonment, or both.
• The court will consider various factors, such as the respondent’s motives behind the breach, the respondent’s degree of culpability, any cooperation or attempts to purge the contempt by the respondent, the purpose of the court order and impact of the breach on that purpose, whether the harm caused by the breach can be remedied and the nature of prejudice suffered by the applicant.
• The court may dismiss the application if there are other reasonable enforcement options that can be adopted.

The hearing may lead to the following outcomes.
• An adjournment.
• A dismissal.
• A fine (with a default imprisonment sentence if the fine is not paid).
• An imprisonment sentence.
• A suspended committal order.

Extract the committal order and serve documents on the respondent

Applicants will need to extract the committal order or suspended committal order and personally serve the document on the respondent.

If it is impractical to effect personal service, you may apply for an order for substituted service.

Apply to lift or discharge the suspension

The court may suspend the execution of the committal order on specified terms and conditions. This may happen when the court finds it appropriate to give the respondent another opportunity to comply with the court order.

Applicants may apply to lift the suspension of a committal order if the respondent breaches the terms of the suspension.
• You will need to file an application by Summons accompanied by an affidavit. The affidavit should set out the facts you rely on to show why the suspension should be lifted.
• The court will fix a hearing for the application and decide whether it is appropriate to lift the suspension. If the suspension is lifted, the court may vary the punishment originally given, to take into account any other relevant circumstances, such as if the contempt has been purged.

The respondent too, may in appropriate circumstances, apply to discharge the suspended committal order.