Cuff v Quinn

A judgment summons leading to committal cannot be dealt with merely by examining the original debt and imposing a conventional suspended committal order. Where inability to pay is relied on, wilful refusal to pay must be established to the criminal standard. The court must also take account of the changed procedural standards required by the Human Rights Act in committal applications. Judgment summons proceedings and an application to suspend continuing payment obligations may properly be heard together so that the court can assess the debtor’s present ability to pay and determine any appropriate suspension.

By consent, the parties had obtained an order regulating the division of their assets and income. The appellant undertook to make continuing payments but later experienced financial difficulty. His application for perpetual release from the undertakings was refused by a district judge.

The respondent then issued a judgment summons. The county court judge treated the matter conventionally and made a suspended committal order requiring payment by instalments. The appellant appealed, contending that wilful refusal to pay had not been established to the criminal standard. The central issues were the proper approach to the judgment summons and the relationship between that process and the appellant’s application to suspend his continuing obligations.

1. Appeal allowed. The judgment summons was remitted to the county court for rehearing. There was no order as to costs.

2. Lord Justice Thorpe held that the appeal succeeded even on the appellant’s narrower argument. The appellant’s inability to pay had not been established as a wilful refusal to pay to the criminal standard. A conventional suspended committal order therefore could not stand.

3. The court drew attention to a Practice Direction issued at the beginning of October concerning the standards required in applications to commit after the Human Rights Act. Those requirements applied equally to judgment summonses in family and civil proceedings. The conventional method of dealing with such applications had consequently become outdated.

4. The rehearing was to take place together with the appellant’s summons seeking suspension of his obligations under the undertakings. That arrangement would enable the county court to make a realistic assessment of his present ability to pay and, if necessary, determine the period for which his obligations should be suspended.

5. Lord Justice Laws and Mr Justice Penry-Davey agreed with Lord Justice Thorpe.

• Court of Appeal (Civil Division): Cuff v Quinn, [2001] EWCA Civ 36. Appeal allowed and the judgment summons remitted to the county court for rehearing.
• Bury St Edmunds County Court: His Honour Judge Holt made a suspended committal order requiring payment by instalments. The order was set aside on appeal.