Waite v Waite

An application for committal is procedurally valid where it is served in accordance with the applicable notice requirements, even if the time available is short. A party seeking committal must also comply scrupulously with parallel court orders. Arrears owed by that party may be relevant to whether committal should proceed and should be quantified and paid before enforcement is considered. A belated application to set aside an order for fraud remains possible where genuinely new evidence emerges, but the possibility does not itself invalidate an existing enforcement order.

The wife appealed against a suspended committal order made by the Birmingham County Court on 21 May 2001. The order followed her failure to vacate the former matrimonial home pursuant to earlier ancillary relief orders.

She argued that the committal application had been served too shortly before the hearing, contrary to Article 6 of the Convention, and relied on alleged fresh evidence of fraud. She also contended that the husband should not enforce the order because he was in arrears with periodical payments. The appeal concerned the validity of the committal process and the effect of the husband’s own breach.

1. Disposition. Lord Justice Thorpe delivered the leading judgment. Lady Justice Hale and Mr Justice Astill agreed with the proposed course. The appeal was dismissed, and permission to appeal to the House of Lords was refused.
2. Notice and Article 6. Service of the application to show cause at about 4 pm on 16 May for a hearing on 21 May complied with the applicable court rules requiring two clear days’ notice. The wife’s contention that her rights under Article 6 of the Convention had been infringed therefore failed.
3. Alleged fraud. It remained possible for a litigant to apply belatedly to set aside an order obtained by fraud if evidence of fraud came to light after permission to appeal had been refused. That possibility did not make the suspended committal order invalid, and the evidence relied upon was insufficient for that purpose.
4. The husband’s arrears. A party seeking the court’s assistance to enforce an order should itself obey court orders scrupulously. The husband’s arrears had to be quantified by Judge Hamilton and paid immediately upon quantification. Lady Justice Hale considered that enforcement should not occur until the arrears were made good and a suitable interval had elapsed. Mr Justice Astill added that the judge hearing the committal application had discretion to take the husband’s breach into account when deciding whether to issue a warrant.
5. The committal order was otherwise a conventional disposal. With the safeguard concerning arrears, there were insufficient grounds for appellate interference.

• Court of Appeal (Civil Division) — Appeal against the suspended committal order dismissed. The court directed that arrears be quantified and paid immediately upon quantification: [2001] EWCA Civ 1186.
• Birmingham County Court — His Honour Judge MacDuff made the suspended committal order on 21 May 2001 after the wife failed to vacate the former matrimonial home.