Lessons on how to Enforce Payment of a Debt under a Court Order

June 2016

This article follows a Judgment of Mr Justice Mostyn given on 26 April 2016 in the case of Migliaccio v Migliaccio. This case concerns the lessons that can be learned from a Judgment Summons Application which is a procedure that is used to enforce the payment of a debt under a court Order and is particularly useful for the Litigant in Person.

It is always useful to understand the background to any court decision. This case concerns the wife’s application for a Judgment Summons against the husband in respect of £2,200.00 of arrears of child maintenance (£4,100.00 at the time of the hearing) and £5,500.00 in respect of an unpaid Costs Order. This debt had fallen due as a result of a Consent Order entered into by the husband and wife on 18 August 2015, which itself had concluded enforcement proceedings brought by the wife. The husband did not attend the enforcement hearing but did respond to the application by email in which he stated that he was unable to attend the hearing but acknowledged service of court papers and that he was unable to pay the debt due as a result of unemployment.

These enforcement proceedings are set against the background of a Consent Order originally made on 4 August 2011 concluding the parties’ divorce after which the husband fell into arrears and the wife brought enforcement proceedings in 2015.

It is important to appreciate that the husband filed no evidence to resist the wife’s application for enforcement of the court Order by the Judgment Summons procedure. The husband was a Litigant in Person.

There are a number of lessons that a Litigant in Person can take from this Judgment, the most significant of which, in my opinion, are as follows: As outlined by Mr Justice Mostyn, the husband’s email showed “a profound misunderstanding of obligations under an Order of a court of law. 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, who was a Litigant in Person, failed to appreciate that an Order of a court of law is not a suggestion or an invitation but rather an “Order” which, in the words of Mr Justice Mostyn “must be complied with”. There is no discretion. The fact that the husband felt that the wife could survive on less maintenance is irrelevant.

The husband’s emails to the court also made the mistake, as Mr Justice Mostyn put it, of believing “that because he has in mind that there are circumstances which might justify a variation application that he is entitled unilaterally to reduce payments to which he thinks is just; not what the court has determined to be just”.

In short, it is up to the court to decide what is appropriate and not up to the husband and the husband’s unilateral decision to reduce maintenance was “unacceptable, and if such behaviour would be tolerated it would strike at the very heart of the rule of law”.

A summary of the legal principles applicable to commitment applications via Judgment Summons:-

  • The court must be satisfied to the criminal standard (beyond a reasonable doubt) that the husband, since the date of the Order, had the means to pay the sums due and he has refused or neglected to pay.
  • The above will be satisfied if proof of both ability to pay and refusal or neglect to pay is made at any single point from the date of the Order up to the date of the hearing of the Judgment Summons.
  • The court is not confined to proof of a positive wilful refusal to pay; the court will be equally satisfied if proof is made of a culpable indifference to the obligation to pay.
  • The wife is required to adduce sufficient evidence to establish at least a case to answer. Generally speaking, this need not be an elaborate exercise. Proof of the Order and of non-payment would be likely give rise to an inference which establishes the case to answer.
  • The husband is not required to give evidence or to incriminate himself. In the absence of a case to answer being demonstrated, the husband is entitled to have the application dismissed.
  • If the wife establishes a cast to answer, the evidential burden shifts to the husband to answer it. If he fails to discharge that evidential burden, the case will be proved against him to the requisite standard.
  • The wife does not have to serve evidence prior to the hearing but if she fails to do so, the court will be astute to ensure that the husband is not taken by surprise and that the hearing can proceed without unfairness to him.
  • It is permissible for the enquiry into the husband’s means at all points since the making of the court Order and the enquiry into whether he has been guilty of a refusal or neglect to pay to take place in one hearing.
  • Provided that the principles in (i) – (viii) are carefully observed then the procedure will be compliant.

Mr Justice Mostyn had his doubts whether the sum of £5,500.00, which was consensually awarded in respect of costs, can be enforced by means of a Judgment Summons. This is because the only matrimonial or family Orders that can be enforced by Judgment Summons are “Orders for periodical or other payments made, or having effect as if made, under Part 2 of the Matrimonial Causes Act 1973”. The reason for this doubt is that Orders for Costs could not fall within that extended definition because an Order for Costs is made pursuant to the Senior Courts Act 1981. Nevertheless, Mr Justice Mostyn arrived at the conclusion from the legal authorities that a wide, flexible definition is given to the phrase “or having effect as if made”. Therefore, it was decided that the entire sum could be enforced by way of Judgment Summons. Incidentally, Mr Justice Mostyn also stated that, even if he was wrong in his line of reasoning, the payment of the Order for Costs does not prevent him from bringing it into account, “if I were to award a suspended sentence, as a term of suspension”. In other words, he could make it a condition of a Suspended Committal Order.

The wife paid £500.00 as conduct money to cover the expenses of the husband attending court and this money is not recoverable. In essence, conduct money is paid without strings to the husband and is irrecoverable. However, the obligation to tender conduct money so that the husband (debtor) can get to court and he actually attends means it cannot be recovered. If, however, the debtor does not come to court then, in the Judgment of Mr Justice Mostyn, it would be reasonable for that sum to be recoverable. Therefore, in this instance, Mr Justice Mostyn included the £500.00 conduct money as recoverable “as a term of suspension” in circumstances where the husband did not come to court.

Conclusion

The conclusion of this case is that Mr Justice Mostyn 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”. He was also satisfied “so that I am sure, from further evidence 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”.

In summary, Mr Justice Mostyn concluded:

  • The husband would not have signed a Consent Order for child periodical payments and costs a mere 8 months ago if he had doubts about his ability to pay.
  • At the time that the husband did sign up to the Consent Order, his financial statement disclosed total assets of £444,553.00 and a total annual net income of just over £140,000.00.
  • At the time that the Order was made, and thereafter, he manifestly had the means to pay.
  • Irrespective of the husband’s failure to satisfy the evidential burden, the court was satisfied that he had had the means to pay and that he had neglected to do so.

The court imposed the sentence of 14 days’ imprisonment, suspended, provided that within 28 days, the husband paid the following:

  • £4,100.00 of arrears of child periodical payments.
  • £5,500.00 in relation to the agreed costs.
  • £100.00 court fee.
  • £500.00 unused conduct money.
  • The wife’s costs of this application summarily assessed at £3,613.00.

In total, the husband was ordered to pay £13,813.00.

Paul Summerbell
Warren’s Law & Advocacy

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