Corbett v Corbett

A judgment summons for arrears of periodical payments requires proof of wilful neglect, not merely proof of non-payment. Before committal, the court should determine any variation application, including a full investigation of the payer’s means, motivation and good faith. The judgment summons procedure must comply with the Convention and the Human Rights Act, including clear particularity of the case to be met. Under rule 7.4(9) of the Family Proceedings Rules 1991, the court may make a new payment order where the original order would have been varied or suspended. Failure to address those matters rendered the committal process defective and the order was set aside.

A consent order required the husband to pay his former wife periodical payments of £22,000 annually. During business difficulties he reduced the payments without applying for variation, accumulating substantial arrears. A judgment summons was issued under the Debtors Act 1869. The judge accepted the husband’s good faith but found wilful neglect and imposed one month’s imprisonment, suspended on payment of the arrears.

The husband appealed. The central issues were whether the judgment-summons procedure complied with the Convention-compliant standards identified in Mubarak v Mubarak [2001] 1 FCR 193, whether the judge had properly considered the variation powers in the Family Proceedings Rules 1991, and whether wilful neglect had been established.

Disposition and procedural defect

The Court of Appeal unanimously allowed the appeal and set aside the order under appeal. Lord Justice Thorpe delivered the principal judgment. Lord Justice Potter and Lord Justice Tuckey agreed.

1. The judgment-summons process was manifestly incompatible with the respondent’s Convention and Human Rights Act rights. It did not meet the standards established by Mubarak v Mubarak [2001] 1 FCR 193. The old Form N17 was prescribed by the rules then in force, so the wife’s solicitors were not responsible for the procedural deficiency. The system had failed to implement urgently required safeguards, including clear particularity of the case the respondent had to meet.
2. The judge had overlooked rule 7.4(9) of the Family Proceedings Rules 1991. That provision permitted a new order where the original periodical-payments order would have been varied or suspended if an application had been made. The judge also failed to recognise that the husband could seek retrospective reduction by combining an application for variation with an application for remission of arrears.
3. For enforcement under the Debtors Act 1869, the essential issue was whether the neglect was wilful. The arrears and the failure to apply for variation did not by themselves establish wilful neglect. The issue of wilfulness, including whether the husband had wrongfully preferred his obligation to his present wife, had to be determined before committal.
4. As a matter of pragmatic case management, the application for variation should precede determination of the judgment summons. It should investigate means, motivation and good faith. If the payer’s good faith and responsibility are established, the enforcement process falls away; if not, it may proceed. The Court also observed that an application issued before, or promptly after, the loss of income permits the court to backdate a realistic assessment of liability to the date of issue.

The judge’s assumptions about the husband’s continuing obligation to repay his present wife required more profound investigation. The case therefore required a realistic reassessment of the husband’s past, present and continuing liability.

1. Court of Appeal (Civil Division): In [2003] EWCA Civ 559, the appeal was allowed and the committal order was set aside.
2. High Court: Mr Justice Hedley heard the judgment summons and imposed one month’s imprisonment, suspended on payment of the arrears by 31 January 2003.
3. Earlier judgment-summons hearing: Her Honour Judge Anwyl QC adjourned the matter and advised the husband to apply for variation, but no such application was issued before the matter returned before Mr Justice Hedley.