Rundell v Rundell

Judgment summons proceedings for maintenance arrears have a quasi-criminal character. Article 6 safeguards remain essential: the creditor bears the burden, the debtor is presumed innocent, protection against self-incrimination must be respected, and the case must be proved to the criminal standard. Those safeguards do not prevent reliance on an earlier proportionate assessment of the maintenance obligation. Once a strong prima facie case is established, inviting the debtor to explain matters does not reverse the burden of proof. Affidavit evidence may suffice, and firm judicial interventions are not necessarily improper. An imperfect introductory explanation is immaterial where the proceedings as a whole do not breach the debtor’s rights and the outcome would be unchanged.

The claimant sought enforcement of maintenance arrears owed under a consent periodical payments order. On 3 October 2005, HHJ Milligan made a suspended committal order requiring the defendant to pay £5,000 monthly, partly towards the continuing obligation and partly towards arrears of approximately £37,000. The defendant appealed, alleging breaches of Article 6, including reversal of the burden of proof, failure to warn against self-incrimination, reliance on a prior income assessment, and improper judicial interventions. The central issue was whether the conduct of the judgment summons proceedings infringed those safeguards.

Lord Justice Thorpe gave the judgment, with Lord Justice Richards agreeing.

1. Article 6 safeguards. Judgment summons enforcement is quasi-criminal in character. The creditor must prove the case, the debtor is entitled to the presumption of innocence and protection against self-incrimination, and the criminal standard applies. These safeguards must not be elevated so as to subvert legitimate enforcement.
2. Foundation for enforcement. An earlier proportionate assessment of the payer’s maintenance obligation may provide the preliminary foundation for enforcement. It is not excluded merely because it was made in quasi-inquisitorial proceedings in which the payer was a compellable witness.
3. Evidence and choice to respond. The creditor’s affidavits sufficiently established the arrears. The creditor was not required to give oral evidence or be formally tendered for cross-examination. Once a strong prima facie case had been shown, the debtor could either face the judge’s determination or explain matters in an attempt to avoid the consequences. That election did not reverse the burden of proof or deny Article 6 rights.
4. Judicial conduct and procedural explanation. The judge’s interventions were not unjudicial in context, given the debtor’s provocative and evasive answers. Ideally, the judge would have explained the procedural change associated with Mubarak v Mubarak [2001] 1 FLR 698 and the relevant safeguards, as discussed by this court in Ellis v Ellis. However, considering the proceedings as a whole, a fuller explanation would not have altered their course or outcome.
5. The underlying obligation arose from a consent order, remained enforceable, and had not been varied downwards. The appeal was dismissed. The application was dismissed, with costs to the respondent in the agreed sum of £4,306.38.

• Court of Appeal (Civil Division): Dismissed the appeal from the suspended committal order and dismissed the application, with costs to the respondent in the agreed sum of £4,306.38. [2005] EWCA Civ 1764
• Aldershot & Farnham County Court: HHJ Milligan made a suspended committal order on 3 October 2005 requiring monthly payments of £5,000.