Family Law

Procedure and proof in judgment summons and committal proceedings

The starting point for this article is the judgment summons application and Iqbal v Iqbal [2017] EWCA Civ 19 (judgment of Sir Ernest Ryder, Senior President of Tribunals of 25 January 2017). However, it is appropriate to start with the findings of McFarlane LJ in Prest v Prest [2015] EWCA Civ 714, [2016] 1 FLR 773) where he said (cited with approval by Sir Ernest at para [28]):

'The provisions  that are relevant to this [husband’s appeal against committal] were recently  considered by this court in Prest v Prest [(above)] per McFarlane LJ at [55] and [62]:

"[55]…at the end of the day this is a process which may result in the respondent serving a term of imprisonment and the court must be clear as to the following requirements, namely that:

a) The fact that the respondent has had, since the date of the order or judgment, the means to pay the sum due must be proved to the criminal standard of proof;

b) The fact that the respondent has refused or neglected, or refuses or neglects, to pay the sum due must also be proved to the criminal standard;

c) The burden of proof is at all times on the applicant; and

d) The respondent cannot be compelled to give evidence.”’

Prest v Prest was a later enforcement outing for the more famous Prest v Petrodel Resources Ltd [2013] UKSC 34, [2013] 2 FLR 732. The appeal was concerned with the husband’s concerns with the way a judgment summons application had been dealt with by Moylan J. The Court of Appeal dismissed his appeal. A main concern of the court had been whether the judge had adopted findings proved at only to the civil standard of proof, could be adopted as proof on the judgment summons application. At a judgment summons application proof must be to the criminal standard (and see Mubarak v Mubarak [2001] 1 FLR 698, considered further below; and Evidence in family proceedings by David Burrows (Family Law, 2016) at paras 7.30 to 7.45).

In Prest the Court of Appeal considered that Moylan J had this point well in mind. McFarlane LJ stressed the point in a further passage (cited in Iqbal at para [28]):

‘[62] … It is, indeed, necessary for a judge who is required, at a subsequent stage in proceedings, to make findings on the higher criminal standard of proof, to ensure that earlier findings made on the lower civil standard are not, even inadvertently, relied upon as substantive findings in the subsequent quasi criminal process.’

In Iqbal v Iqbal the Court of Appeal was concerned with enforcement by judgment summons (under FPR 2010, rr 33.13 and 33.14) of orders made against a husband (who had not attended the final ancillary relief hearing). He was ordered to pay £3,220,000 arrears of periodical payments (at £10,000 per month) of £530,000 (and perhaps continuing arrears under an order at £10,000 per month). The Court of Appeal judgment implies that the court which made the family provision assumed that this money would come from the husband’s family.

Proof of husband’s ability to pay: ‘the means to pay the sum’

Sir Ernest defined the issues before the court as:

‘[8] The key issue on the facts at the  interim and final hearings [of the judgment summons application] was whether  the husband had and has the ability to make the payments ordered including, if  appropriate, by reliance on the bounty of an outsider (ie his extended family  if the court is satisfied that such a person would provide the money).’

His first conclusion was that the procedural failings made allowing the appeal inevitable (he later cited the passage from Prest at para [55] above):

‘[14] Having heard the appeal, this court  concluded that elementary procedural protections that the husband had a right  to expect would be observed were not. The consequence is that the final hearing  was procedurally unfair and the order made at the end of it must be set aside  and the matter remitted for final hearing before a new judge … The subsequent enforcement hearings were wholly irregular in that no procedural protections were provided at all.’

The judge failed to give reasons for his decision to commit Mr Iqbal. In civil as in family proceedings reasons must be stated for any court decision (English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605):

‘[22] … Parties are entitled to a determination, no matter how short, that is capable of being scrutinised so that it can be understood and so that advice can be given about it and ultimately an appeal court can ascertain whether it was sufficient in law and on the facts.’

Of the evidence and burden of proof at the final committal hearing Sir Ernest recorded what happened as follows:

‘[33] [The judge] indicated the wife  should be sworn to give oral evidence but there is no record on the transcript  that she was. The judge accepted the wife's unsworn oral submissions as to the  amount she was owed but there was no evidence considered by the court about the  husband's means to pay or his refusal or neglect to pay the sum allegedly due. The submissions and orders to which the judge was taken could not in themselves  satisfy the burden of proof in respect of each of the issues to be determined. Yet again no judgment was given explaining the basis of the orders made.’

Migliaccio and standard of proof

In Migliaccio v Migliaccio [2016] EWHC 1055 (Fam) Mostyn J described the conclusions of McFarlane LJ in Prest v Prest (above) at para [55] as ‘obiter’. He suggested that they may not therefore represent the law.

‘[27] … I have to express my disagreement with [McFarlane LJ’s] observations. The fourth and sixth principles that I set out in Bhura v Bhura were not inventions by me, but were a summary of the judgment of Richards LJ in Karoonian v CMEC.’

This and McFarlane LJ’s findings have been described by Ashley Murray in ‘The evidential burden in judgment summons hearings: Migliaccio’ [2016] Fam Law 1017 as ‘non-binding judicial opinion’. Mostyn J’s assertions were accepted by Simon Sugar in ‘Enforcement clarified’ Resolution ‘Review’ (2016) September/October at 21. (Sugar accepts without comment Mostyn J’s assertion that McFarlane LJ’s above findings are ‘obiter’.)

Doubts on this point are largely allayed in Iqbal. Sir Ernest disposes of Migliaccio in the following way (italics added):

‘[29] Mr Taylor,  counsel for the wife, urged on us to a limited extent what was said to be a  different approach to the law. He cited the decision of Migliaccio v  Migliaccio [(above)], a first instance decision of Mostyn J which itself relies on an earlier decision of Mostyn J in Bhura v Bhura [2012]  EWHC 3633 (Fam), [2013] 2  FLR 44. Aside from the fact that the learned judge's observations and criticisms are not binding on this court, the only principle which it could be said might be relevant to the  appeal before this court is whether once a prima facie case on the evidence has been raised against a  respondent to a judgment summons, an evidential burden shifts to the respondent which he must discharge if he is not to have the issues found against him to the criminal standard. That question does not arise on the facts of this case and accordingly it would be unwise to develop the point. The husband in this case was never presented with a prima facie case in respect of each of the issues to be proved to the criminal standard.’

Migliaccio: ‘obiter’ judgment of McFarlane LJ

In Migliaccio Mostyn J recited the passage from Prest at para [55] (above) and concludes:

‘[26] Intelligence has reached me that these remarks – which, as I say, are obiter dicta because in that case the appeal against the order of Moylan J awarding a suspended prison sentence against the husband was dismissed – have caused considerable difficulty in routine enforcement proceedings,  particularly under the Child Support Act, inasmuch as they suggest that  everything must be proved de novo. 

[27] With all due respect to McFarlane LJ, I have to express my  disagreement with his observations. The … principles that I set out in Bhura v Bhura were not inventions by me, but were a summary of the judgment of Richards LJ in Karoonian v CMEC [Gibbons v CMEC [2012] EWCA Civ 1379, [2013] 1 FLR 1121].’

In Prest the Court of Appeal clarified the requirements for a court to consider when it heard a judgment summons under Debtors Act 1869, s 5 and FPR 2010, r 33.14 (the same would apply for a Child Support Act 1991, s 39A commitment application, as in eg Karoonian). In Prest a husband appealled against a committal order where Moylan J had held that he was wilfully in default of a maintenance order in the sum of £360,200 and imposed a penalty of four weeks’ imprisonment suspended provided that the husband paid the total amount found to be in default within a period of three months.

McFarlane LJ held that observations in Zuk v Zuk [2013] 2 FLR 1466, CA (at para [19]), Bhura  v Bhura [2013] 2 FLR 44, Mostyn J (at para [13]) and Mohan v Mohan [2013] EWCA Civ 586 (at para [45]), seemed to suggest that, in the course of what amounted to a criminal process, it was sufficient to rely upon findings as to wealth made on the civil standard of proof in the original proceedings and that those findings, coupled with proof of non-payment, were sufficient to shift any burden of proof to the respondent. This could only be discharged if he or she entered the witness box and proffered a credible explanation.

It was important to be clear that the Debtors Act 1869, s 5 procedure was one which might result in the respondent serving a term of imprisonment which demanded proof for the court of the following as explained by McFarlane LJ (at para [55]). His list was part of a passage in which he had expressed ‘caution’ as to what Mostyn J had said in Bhura v  Bhura (above) on the extent of proof of the case to answer in committal applications, and the shifting of the evidential burden once a case to answer has been established. He went on to say (at para [56]) that his considerations were ‘relevant … as they lie at the heart of the husband’s’ appeal. One of his main bases for rejecting the appeal dealt with a court’s finding, on the hearing of a judgment summons, that a respondent’s means includes capital which was treated as held by him at the initial order stage, but proved then only to the civil standard.

Further Court of Appeal authority

In Mubarak  v Mubarak [2001] 1 FLR 698, the first post-Human Rights Act 1998 case on this jurisdiction (and see ‘Enforcement matters’, David Burrows, [2009] NLJ 7 May), Brooke LJ emphasised the importance that the respondent, who faces what amounts to a criminal charge (see Engel  and Others v The Netherlands (No 1) (1979) 1 EHRR 647 at [80] and [83]), should know the case against him or her (ie McFarlane LJ’s list: (a) and (b)):

‘[46] In Newman v Modern Bookbinders Ltd [2000] 1 WLR 2559 judgment was given in [a case which is] far removed from the present. Sedley LJ spelt out the requirement for clarity of procedure and also the requirement that a person who faces what is now to be regarded as a criminal charge under Art 6 of the Convention should understand in detail the true nature and cause of the accusation against him. In para 26 of his judgment, Sedley LJ pointed out that this was one of the rights known longest to the law of England, ‘since, at least, the moment 350 years ago when John Lilburne demanded and finally obtained the sight of the indictment on which he was to be tried.’

That proof is to the criminal standard was confirmed in Mubarak; and by the time of Karoonian v CMEC [ie CSA]; Gibbons v CMEC [2012] EWCA Civ 1379, [2013] 1 FLR 1121 the Court of Appeal recorded (per Richards LJ):

‘[55] … The court must be satisfied to the criminal standard, on the basis of all the evidence before it, that there has been wilful refusal or culpable neglect. So much, indeed, is common ground between the parties.’

Binding authority and Bhura

• ‘It is essential that the applicant adduces 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 will likely give rise to an inference which establishes the case to answer...
• ‘If the applicant establishes a case to answer, an evidential burden shifts to the respondent to answer it. If he fails to discharge that evidential burden then the terms of s.5 will be found proved against him or her to the requisite standard.’

‘[46] … The statutory provision [in this case is Child Support Act 1991] s 39A, [which] places the burden of proof squarely on the [CSA] to establish all the relevant facts which include proof of means and the wilful refusal/culpable neglect. The statutory provision is compatible with the Convention. Where the system breaks down is in the unregulated procedures which are adopted and the form of the summons which requires the defendant to show cause [as explained in] Mubarak v Mubarak, reverses the burden of proof. The procedure adopted is flatly contradictory to the statutory scheme itself. That is why it is obnoxious. That is why it is unreasonable and cannot be justified.’

This is what the Court of Appeal said on the issue before them (all three judges concurred). The appeal was dismissed.

By contrast the question of standard of proof in Prest was directly in issue, since it was raised by Mr Prest. He said – his third ground of appeal as summarised by McFarlane LJ at para [34] – that Moylan J had imprisoned him on the basis of evidence (namely that he had assets) proved in ancillary relief proceedings, but only proved to the civil standard. As a result, he said, there was ‘insufficient admissible evidence’ to justify findings of ‘culpable neglect’ against him under Debtors Act 1869, s 5.

McFarlane LJ described this ground as of ‘substance’. He explained why it was important that cases under Debtors Act 1869, s 5 be proved to the criminal standard of proof (over two pages at paras [53]–[55]; and see Mubarak and Art 6.3(c)) and why he held that Moylan J had complied with this requirement (at paras [63]–[66]). This was the main point of law – on standard and onus of proof (see discussion of para [55] above) – which was fully discussed by the judge, and the appeal dismissed.

Prest: enforcement procedure  clarified