10 July 2015

The judgment summons resurrected

This month the Court of Appeal delivered an authoritative decision on the requirements for the judgment summons procedure, in Prest v Prest. It's the latest saga in the divorce litigation between Michael and Yasmin Prest, which has occupied the Courts, including the Supreme Court, for the last five years.

The litigation concerned Mr Prest's appeal against an order made on 29 July 2014, committing him to prison for four weeks on a judgment summons issued by his ex-wife following his failure to pay maintenance totalling £360,200. The judgment summons procedure, under the Debtors Act 1869, is brought on the application of a creditor who has obtained a judgment for the payment of a sum of money by instalments or otherwise, where the order for payment has not been met. This procedure requires the debtor to appear personally in court and to be examined on oath as to his ability to pay the debt since the date of the order or judgment made against him, and to show why he should not be committed to prison for failing to pay.

The judgment summons procedure was previously considered by the Court of Appeal in another case (Mubarak v Mubarak) in 2001, which identified the difficulties when adapting the judgment summons procedure to the requirements of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. The judgment summons process as it was then made no reference to the criminal standard of proof. It required individuals to incriminate themselves and placed the burden of proof on the person facing committal. Consequently, the court in Mubarak predicted that the practical effect of these difficulties would be to render the Debtors Act 1869 largely obsolete as a means of enforcement in matrimonial proceedings. The Mubarak decision led to the amendment of the relevant court rules, which now appear in the form set out in Family Procedure Rules.

Following these amendments, three authorities relating to the judgment summons process have been reported. In each of these cases, the judges stated that once the applicant had stated her case, the burden passed to the respondent.

The main thrust of Mr Prest's appeal was that the judge had incorrectly relied on earlier findings as to his ability to pay the funds due on the civil standard of proof, rather than on the, higher, criminal burden.

The Court of Appeal noted that in relation to each finding that he made about the funds due and Mr Prest's ability, but refusal, to pay, the judge correctly stated that the standard of proof was the criminal standard of proof, and that the burden of proof fell on the wife to prove as the applicant.

Dismissing the appeal, the Court of Appeal amended the judge's committal order providing that it "shall not be executed and the warrant for arrest shall not be issued if Michael Jenseabla Prest pays to the Applicant the sum of £360,200 by 4 pm on Monday 28th September 2015".

Mr Prest has signalled his intention to petition the Supreme Court to appeal against the decision.