Part 3: Enforcement of consumer protection law Undertakings and further proceedings Section 166: Consumer protection orders or undertakings to court: further proceedings
This section, which restates and updates section 220 of the Enterprise Act 2002, applies where the court has made a consumer protection order against an enforcement subject or member of the same interconnected corporate group (see section 176), or the court has accepted an undertaking from an enforcement subject. Where there is a failure to comply with the order or undertaking, the enforcer who made the original application or any public designated enforcer is able to make a further application to the same court that made the order or accepted the undertaking (subsections (1), (2) and (3)).
	An application cannot be made for a failure to comply with an undertaking or order which consists solely of a failure to provide information or documents required by the undertaking or order to determine whether the enforcement subject is taking any enhanced consumer measures required (subsection (7)).
	In an application relating to a failure to comply with an undertaking given to the court, where the enforcer has the power under Chapter 3 of Part 3 to make the application, an enforcer can include an application for an enforcement order, an interim enforcement order, an online interface order or an interim online interface order (subsection (4)). An application for a consumer protection order can only be made in respect of a commercial practice that has occurred or is occurring (subsection (6), paragraph (b)).
	Breach of a consumer protection order will be a contempt of court (breach by disobedience). The enforcer must establish liability to the criminal standard of proof.
	Where the court finds that undertakings given to it have been breached, it may also treat the breach as a contempt of court. Alternatively, as indicated above, this section provides that the court may make an enforcement order, an interim enforcement order, an online interface order or an interim online interface order (as applicable) and/or require the enforcement subject to pay a monetary penalty (subsection (5)).
	However, the court is not able to accept another undertaking in response to an application for a consumer protection order under this section (subsection (6), paragraph (c)) and is able to impose a monetary penalty (under subsection (5), paragraph (b)) regardless of whether the enforcement subject has a reasonable excuse (also see section 167 in relation to monetary penalties for non-compliance with undertakings given to enforcers), reflecting the serious nature of breaching an undertaking given to the court.
	Subsection (6), paragraph (a) removes the power for the CMA to give directions (under section 154 and section 160, subsection (5)) and removes the requirement for the enforcer to consult with the enforcement subject (under section 155) before making an application for a consumer protection order following on from non-compliance with an undertaking. The consultation requirements aim to resolve infringing practices without the need for court action. Where an enforcer believes a person has breached an undertaking given to the court, which is itself an alternative to a court order, the Government considers that another round of out-of-court consultation would fail to resolve the underlying infringing practice.
	Subsection (8) provides an enforcement subject who is required to pay a monetary penalty with a right to appeal the decision to impose a penalty, its nature or amount "on the merits", in addition to their existing appeal rights.
	Section 168 sets out the maximum monetary penalties that the court may impose under this section and section 203 makes further provisions for information to be included in an order, or in a notice to accompany an order, that includes a requirement to pay a monetary penalty (subsection (9)).