Lessons from another judgment summons application

Divorce|May 11th 2016

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.

Author: Stowe Family Law

Comments(5)

  1. spinner says:

    Weren’t debtors prison’s abolished in the 18th century, the Family Courts in England are so backward.

  2. Andrew says:

    All this stuff about order being there to be obeyed could be spoken of all judgment debts, but imprisonment for debt, which is a servile practice, has been gone – except for some family cases – for forty-seven years. It is time we did away with the exception and consigned the judgment summons to the history books.
    .
    Some debtors wouldn’t pay? Sure, they wouldn’t. They don’t pay other debts either, but they don’t go to prison over it – even if they obviously could pay. Debt is not crime and should not be treated as crime.

  3. Luke says:

    OK, so he goes to prison, how is he going to pay this when he gets out ? By being in prison his ability to pay (whatever you believe that to be) will almost inevitably decrease. So if he comes out and doesn’t come up with the money what happens then ? Does he go back in prison again ?
    Does he go to prison for the rest of his life ????
    .
    How does the wife benefit other than enjoying his pain, how does this help anybody ?

  4. JamesB says:

    The points made above would not sound so ridiculous and sanctimonious and nonsensical were contact orders worth the paper they are written on. I know I had no respect for any court order once I realised the contact order I had was unenforceable. I tried to enforce it in Court and was literally laughed at.

    The courts duplicitous approach to orders, i.e. one rule for money one for finances is complete nonsense and they should keep their mouths shut until they sort that out. Saying they are different matters is also nonsense and like calling black white, they both have same stamps and from same courts. Prenups should be enforceable and all court orders should be enforceable.

    I could go on but I think you understand the point, i.e. your points about how much weight should be given to court orders add up to a sack of shit until you sort yourselves out with regards to enforcing decent contact orders.

    Saying women can enforce family law orders but men cant makes these places and your argument a sick joke and these places to be avoided.

    thank Marilyn for the site having a link to another site yesterday which was showing how attitudes to marriage and having children within it were changing and people are voting with their feet to avoid your dodgy law whenever possible. Plus I do not want to end up like muslim sharia law so please sort your dodgy courts out asap as they need sorting out asap.

  5. Andy says:

    Yet again the law as usually made up in most cases just shows the lengths that the female is shown to be the gold digger in such cases plus the law is weighted in this favour to the female.

    The male should of gone to prison and would the debt be then lost..the law can’t do this for ever..
    As an example, you drive a car with no insurance etc.get stopped by police. You drive a car again get stopped by police,court summons,get back in a car again,get stopped,court summons, etc,etc.after a number of times the system does not know what to do with you so what will court do or judges do all they can do is follow out dated laws..
    My point to all this is,stand up for your rights and since courts rely on old, outdated laws with over paid judges who make half this up the system that must be followed cannot support today’s actions by individuals to make themselves heard…

    High time the law was re vamped for today’s society not just laws that Charles Dickens introduced…
    The government is quick enough to change the law if need be in there favour when suite’s…

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