Judgment summons upheld

Family Law|July 9th 2015

The Prest divorce case continues to rumble on. For anyone unfamiliar with the case, I would suggest that you go to the search box at the top right of this page, type in ‘Prest’ and hit enter – you will find a number of previous posts to read.

I have written here about the case myself, in a post I wrote last October about Mrs Prest’s successful application for a judgment summons. To briefly recap, Mrs Prest sought Mr Prest’s committal to prison for failure to pay to her sums totalling £428,200 due under a maintenance order for herself and the children. Mr Justice Moylan found that Mr Prest had made some payments in respect of the maintenance order, but that he still owed the sum of £360,200. He imposed upon Mr Prest a term of imprisonment of four weeks, suspended for three months, to give him an opportunity within that time to pay the sum.

The order was stayed, as Mr Prest appealed against it. That appeal has now been dealt with and dismissed by the Court of Appeal.

Mr Prest put forward six grounds of appeal. I will not go through them all here, as I don’t think they are all of general interest so far as future judgment summons applications are concerned. However, the following points are, I think, of interest:

  1. Whether Mr Justice Moylan had applied the correct burden of proof. In family proceedings the burden of proof is the ‘civil standard’, i.e. that something must be proved on the ‘balance of probabilities’. On a judgment summons the stricter criminal standard is applied – that something must be proved ‘beyond reasonable doubt’. It was suggested that Mr Justice Moylan had applied the civil standard when making his findings. This was not, however, accepted by the Court of Appeal.
  2. Whether Mr Justice Moylan had taken proper account of other payments Mr Prest had made in respect of various bills for which Mrs Prest was liable. The Court of Appeal was not impressed by this argument, saying that: “It cannot be acceptable for a husband persistently to fail to discharge his responsibility under a court order to make periodical payments, whilst at the same time choosing to make payments on his own terms in substantial sums. If the court were to acquiesce and to condone such conduct, the result might well substantially undermine the authority and reliability of orders for such payments…”
  3. Whether the four week period of imprisonment was too long. To this, the Court of Appeal said: “in the context of an overall statutory limit on the length of any prison sentence set at 6 weeks, and against the background of a default in payment of the order of £320,000, a prison sentence of 4 weeks is unremarkable.”
  4. Lastly, whether there was a proper basis upon which Mr Justice Moylan could have concluded that Mr Prest was capable of paying the sum due within the three month period. To this, Lord Justice McFarlane in the Court of Appeal gave short shrift: “If, as I have already held, the judge was fully entitled to make the findings that he made with respect to the husband’s current financial circumstances, those findings support a conclusion that the husband had the means to meet the conditions on the suspended sentence.”

The appeal therefore failed. The judgment summons order therefore stands, although the Court of Appeal amended it to provide that Mr Prest should not be committed to prison provided he pays Mrs Prest the sum of £360,200 by 4pm on 28 September.

The full report of the appeal can be read here.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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