Bhura v Bhura (Rev 1)

An application under section 5 of the Debtors Act 1869 is quasi-penal. The applicant must prove beyond reasonable doubt that the respondent has had the means to pay and has refused or neglected to do so. Ability to pay and refusal or neglect may be proved at any time from the date of the order to the hearing. Proof of the order and non-payment may establish a case to answer, after which an evidential burden arises on the respondent. The respondent need not give evidence or incriminate himself. The issues may be determined at one hearing, provided procedural fairness is maintained. Hearsay is governed by the Civil Evidence Act 1995 and the relevant Family Procedure Rules. The judgment summons procedure remains Convention-compliant and is generally a measure of last resort.

The applicant sought enforcement in England of a Georgia divorce judgment ordering the respondent to pay US$2 million lump sum alimony, together with monthly payments pending payment. The order had been registered as a High Court order under the reciprocal enforcement legislation.

She applied for the respondent’s committal under section 5 of the Debtors Act 1869 and for a writ ne exeat regno. The central issues were whether the statutory conditions for committal were proved to the criminal standard, whether the respondent had a case to answer, and what enforcement and restraint orders were appropriate.

1. The court held that the respondent had had the means to pay the Georgian award and had refused or neglected to do so. The statutory conditions under section 5 of the Debtors Act 1869 were proved beyond reasonable doubt.
2. The Georgian evidence and findings established at least a case to answer. The further evidence showed that the respondent had retained, directly or through family members, the jewellery or its proceeds. His evidence was rejected.
3. The principles governing judgment summonses were those identified in Karoonian v C-MEC [2012] 3 FCR 491, treated as the locus classicus for applications under both the Debtors Act and the Child Support Act. The applicant must establish a case to answer; the respondent is not required to testify; an evidential burden may then arise; and the issues of means and refusal or neglect may be heard together.
4. The court followed the core procedural principle in Mubarak v Mubarak [2001] 1 FLR 698 that proof is required to the criminal standard, but disagreed with the prediction that the procedure would become practically obsolete. The reformed procedure under Part 33, Chapter 2 of the Family Procedure Rules 2010 was Convention-compliant.
5. Hearsay evidence in these quasi-penal civil proceedings was governed by the Civil Evidence Act 1995 and FPR 2010 rr 23.2–23.5, rather than the hearsay provisions of the Criminal Justice Act 2003.
6. The respondent was sentenced to six weeks’ imprisonment, suspended for three months. The existing writ ne exeat regno was discharged and replaced by a time-limited injunction restraining departure from the jurisdiction and requiring passport retention. A final charging order was made over the respondent’s 25% interest in the Finchley property.