Ellis v Ellis

Committal for non-payment of a maintenance order requires proof to the criminal standard that the payer has, or has had, the means to pay and has wilfully refused or neglected to do so. A payer cannot unilaterally reduce the ordered payments. If the order is unaffordable, the proper course is an application for variation, potentially with a request for backdating and remission of arrears. On appeal, findings about means and credibility will stand where the first-instance judge directed himself correctly, considered the available evidence, and had a proper basis for being sure of the default.

Neil Ellis appealed against a suspended committal order made by His Honour Judge David Turner QC on 3 June 2005. The order arose from arrears under a maintenance order made by Baron J on 29 November 2004 for payments relating to the parties’ son. Mr Ellis had reduced the payments unilaterally and contended that he lacked the means to pay the full amount.

He argued that the judge had failed to assess his means at the relevant time, had overlooked his continuing payments and need to support himself, had imposed an impossible suspension condition, and had failed to consider alternatives. The central issue was whether the statutory conditions for committal were proved.

1. Appeal dismissed. The committal order, suspended for 21 days on payment of £2,605 together with sums accruing under the original order, stood.
2. For a committal on a judgment summons, the court must be sure, to the criminal standard, that the debtor has or has had the means to pay the sum ordered and has wilfully refused or neglected to pay it. The judge had directed himself correctly on that test.
3. The judge was entitled to reject Mr Ellis’s account of his means. The evidence did not provide a satisfactory account of the present business or its proceeds. His earlier financial position, available liquidity, assets and conduct in arranging the withdrawal of a variation application while reducing the standing order provided a proper basis for adverse credibility findings.
4. The appellate court would not interfere with those findings. The judge had heard the evidence, considered the documents, and had good cause not to believe Mr Ellis. The conclusion that he had the means to pay and was in wilful default was plainly open to him.
5. If the ordered payments genuinely cannot be afforded, the remedy is an application for variation, with any appropriate request for backdating and remission of arrears. It is impermissible to take the law into one’s own hands by reducing the payments unilaterally.
6. The first-instance judge had taken substantial steps to secure a fair process. Judgment-summons proceedings involving potential loss of liberty are criminal proceedings for the purposes of the Human Rights Act 1998 and engage Article 6 of the European Convention on Human Rights.

• Court of Appeal (Civil Division): [2005] EWCA Civ 853. Appeal against the suspended committal order made by His Honour Judge David Turner QC on 3 June 2005 dismissed.
• High Court, Principal Registry of the Family Division: His Honour Judge David Turner QC made a committal order suspended for 21 days, conditional on payment of £2,605 and subsequent payments under the maintenance order.