JS (by her litigation friend KS) v Cardiff City Council

A public body may be proceeded against for contempt for breach of a mandatory injunction. The breach must be proved beyond reasonable doubt, and the order must be sufficiently clear and unambiguous. An obligation to complete future placement planning requires the placement process to be finished, including determination of the future placement; identifying possible options is only an earlier stage. A respondent’s belief that it has complied, or lack of intention to flout the order, does not prevent a finding of contempt where the order was known and objectively breached. Those matters may be relevant to penalty. Where contempt proceedings have been properly initiated without any permission requirement, questions of proportionality, apology, explanation and late compliance ordinarily concern whether a penalty is appropriate, rather than whether the application should be determined.

The claimant, a young person with significant care and support needs, brought an application under CPR rule 81.3(1) alleging that Cardiff City Council had breached a mandatory injunction made on 20 December 2021. The order required the Council by 4pm on 7 January 2022 to complete future placement planning and produce a care and support plan, and required a director to file an affidavit if paragraph 5 was breached.

The Council produced a care and support plan and identified two possible placements, but continued to investigate other options and had not determined the placement that would be in the claimant’s best interests. It also filed no director’s affidavit. The central issues were whether the order was ambiguous, whether the Council had complied, and whether its belief that it had complied or its lack of deliberate disobedience prevented contempt.

1. Contempt application and threshold. The application was not to be filtered out as disproportionate or contrary to the public interest. Although those matters should be considered before initiating proceedings, and may include late compliance, apology and explanation, the court should determine a properly initiated application where no permission is required and abuse or vexatiousness is not alleged. Those matters may bear on penalty. R (Mohammed) v Secretary of State for the Home Department [2021] EWHC 240 (Admin); Stobart Group Ltd v Elliott [2014] EWCA Civ 564.
2. Applicable principles. Contempt is available for breach by a public body. The alleged breach must be strictly proved beyond reasonable doubt, and contempt cannot be founded on an ambiguous order. Once the respondent knew of the order and knew the acts or omissions proved, it need not have intended to breach the order or known that its conduct was legally a breach. M v Home Office [1992] Q.B. 270; R (JM) v Croydon London Borough Council [2009] EWHC 2474 (Admin); FW Farnsworth Ltd v Lacy [2013] EWHC 3487 (Ch); Varma v Atkinson [2021] Ch 180.
3. Construction of paragraph 5. The requirement to produce a care and support plan was clear. The requirement to complete future placement planning required the process of determining the claimant’s future placement to be finished. It did not require completion of a transition plan or the claimant’s move, but it did require the future placement to be identified and determined by 7 January 2022. Identifying available options was only a preliminary stage.
4. Breach of paragraph 5. The Council produced a care and support plan, and the court declined to determine on the contempt application whether that plan was lawful because that allegation was not particularised. The Council had not completed placement planning: it was still identifying options, one provider remained subject to compatibility enquiries, no placement had been determined as being in the claimant’s best interests, and the provider field in the plan was blank.
5. Breach of paragraph 6(a). The objective trigger for the director’s affidavit was the fact of breach, not the Council’s belief about compliance. Since paragraph 5 had been breached, the affidavit obligation arose and was not performed.
6. Disposition. Beyond reasonable doubt, Cardiff City Council breached paragraphs 5 and 6 of the 20 December 2021 order and was in contempt of court. The court reserved the question of penalty and any further order needed to secure swift identification of a suitable placement.