Judgments of Mr Justice Mostyn (‘Mostyn J’) are invariably instructive, and his judgment in Migliaccio v Migliaccio, published last week, is no exception. Whilst some of the points he made were not exactly profound, they are nevertheless useful, particularly for the litigant in person. Otherwise, some of what he said about the judgment summons procedure is perhaps more weighty, and of greater interest to the practitioner.
The judgment summons is a procedure used to enforce payment of a debt under a court order. The creditor applies to the court for the debtor to be committed to prison for a term not exceeding six weeks, or until payment of the sum due. As I have said here previously, the judgment summons is quite a rare bird, or at least it was in my experience when I was practising, although one did crop up last year in the Prest case.
Before going through the points I wish to mention I will set out briefly the background to the case.
The case concerned the wife’s application for a judgment summons against the husband in respect of £2,200 of arrears of child maintenance payments (which by the hearing had risen to £4,100) and £5,500 in respect of an unpaid costs order. These sums followed an order made by consent in August 2015, which in turn had concluded enforcement proceedings brought by the wife and proceedings brought by the husband to increase the amounts due. The husband, who lives in Dubai, did not file any formal evidence in response to the application, and did not attend the hearing. He did, however, respond to the application by email, indicating that he had reduced the payments he was making because he could no longer afford to pay the full amount of the maintenance, by reason of unemployment.
These are the points I wish to mention:
Point 1: “An order of a court of law which provides for child periodical payments is not some indicative suggestion; it is a judgment which must be complied with.”
The husband, like (I would respectfully suggest) many litigants in person, showed “a profound misunderstanding of obligations under an order of a court of law”, in that he argued that the wife did not need the full amount of the maintenance to look after the child, hence he decided that it was sufficient for him to pay a lesser amount.
Point 2: Along similar lines, just because the person paying maintenance believes that there are circumstances which might justify a variation application he is not entitled unilaterally to reduce the payments to what he thinks is just, rather than what the court has determined to be just.
In other words, it is up to the court to decide what he should pay. If he believes he can no longer afford to pay the amount ordered, then he must apply to the court for a decrease (“downward variation”). As Mr Justice Mostyn said, the husband’s behaviour was “completely unacceptable, and if such behaviour were to be tolerated it would strike at the very heart of the rule of law.”
Point 3: The principles to be followed on a judgment summons application are that the applicant must produce sufficient evidence to establish at least a case to answer, and if this is done then the burden ofproof shifts to the respondent to answer it. It is not necessary, as McFarlane LJ has suggested, for the applicant to prove their case against the respondent to the criminal standard of proof (i.e. beyond reasonable doubt).
Point 4: Whilst orders for costs are not enforceable by way of judgment summons, here Mostyn J felt that the consent order could have been entirely in respect of maintenance arrears, with no costs element, and therefore the entire sum was properly enforceable by way of a judgment summons. Even if he was wrong in this, payment of the costs could be made a condition of suspension of the committal order.
Point 5: Lastly, the wife had paid the sum of £500 in ‘conduct money’, to cover the husband’s expenses in attending court. Normally, conduct money is also not enforceable. However, here that sum had not been spent and accordingly its payment was also included as a term of suspension.
Applying the above, Mostyn J was “satisfied that the wife, by having proved the existence of the order and the default, has raised a case to answer which the husband has comprehensively failed to answer.” Further, he was satisfied “that the husband has at all times had the means to pay this order and it is only out of pure wilfulness that he does not.” He explained:
“First, it is a truism that he would not have signed up to a consent order for child periodical payments and costs a mere eight months ago if he had any doubts about his ability to pay. Second, at the time that he did sign up to the consent order his Form E disclosed total assets of £444,553 and a total annual net income of just over £140,000. Therefore, at the time that the order was made, and thereafter, he manifestly had the means to pay. And so, irrespective of his failure to satisfy the evidential burden, I am satisfied, so that I am sure, that he has had the means to pay and that he has neglected to do so.”
Accordingly, he imposed upon the husband a sentence of fourteen days’ imprisonment, suspended provided that within twenty-eight days he pays the following sums: £4,100 of child maintenance arrears; £5,500 in relation to the agreed prior costs; a £100 court fee; £500 unused conduct money; and the wife’s costs of the application, which he assessed in the sum of £3,613. A total of £13,813.
The full report of Migliaccio v Migliaccio can be read here.