In the recent case of Morris v Morris [2016] EWCA Civ 812 the Court of appeal has restated the importance of the accused’s right to silence in Committal Proceedings. The husband appealed against a committal order made on the wife’s application by judgment summons for arrears due under a periodical payments order, as well as against a variation of that order.
The husband had a history of failing to make payments for the benefit of the wife, refusing to pay the mortgage to apply pressure on the wife to settle proceedings on his terms and was found to have been dishonest in his disclosure. The Judge at first instance awarded the wife 88% of the liquid assets and 24% of the assets, plus £24,000 pa in maintenance until the husband reached the age of 65 with no s. 28(1A) bar. The capital due to the husband was almost entirely eroded by an order for payment of arrears of mortgage payments and maintenance to be made by the husband. As a result of his failure to pay the mortgage the property was sold at a lower than expected value under the threat of repossession, a reduction which only affected the wife.
The husband applied to vary the order a mere 6 months later. Shortly before this application the wife applied for judgment summons in respect of arrears of maintenance and mortgage payments. At the first hearing a deputy district judge ordered that the husband ‘shall’ file a statement setting out his financial affairs, which he duly did. On this and the next occasion the judge had no jurisdiction to hear a judgment summons application due to a lack of seniority. The circuit judge who had made the original financial remedies order heard the final hearing on the variation and judgment summons applications and imposed a suspended sentence on the husband and a small downward variation in maintenance.
Moylan J, sitting in the Court of Appeal and giving the leading judgment, overturned the committal order, observing that;
- The respondent to a judgment summons application cannot be required to give evidence (Mubarak v Mubarak [2001] 1 FLR 698 and rule 33.14(4) of the Family Procedure Rules 2010; and
- The respondent is entitled to legal aid so that he can be represented in such proceedings.
These are fundamental procedural requirements and the court below having failed to remind the husband of each of them and having directed that he must file and serve a statement, its order had to be set aside. The judge relied on Inplayer Ltd v Thorogood [2014] EWCA Civ 1511 where it was said that “there can be no question of upholding findings of contempt against a person who has been deprived of valuable safeguards” (per Jackson LJ at para 45). The errors were said to have occurred as a result of the listing of the two applications together. The judgment summons was therefore dismissed.
These requirements are important checks on the use of committal or judgment summons proceedings in a wide range of different proceedings. Practitioners should always be aware of them when representing either party to an application for committal as the failure to abide by them will almost inevitably lead to a successful appeal.