Mohan v Mohan

In proceedings on a judgment summons under the Debtors Act 1869, statements which a judgment debtor was compelled to provide in an earlier general enforcement process are inadmissible. The protection reflects the debtor’s right not to be compelled to testify while exposed to a penal sanction.

The protection does not extend to documents produced under the earlier order. Nor may a creditor use a non-penal general enforcement application simply to obtain compelled disclosure and examination for later use on a judgment summons. Evidence given before the order being enforced is also outside the specific embargo.

The wife obtained financial orders requiring the husband to pay substantial lump sums. Following default, she began a general application for enforcement and obtained an order requiring the husband to provide a Form E, a sworn narrative statement and supporting documents. She later issued a judgment summons under the Debtors Act 1869.

His Honour Judge Cryan excluded all information and documents produced under the earlier compulsory order from evidence supporting the judgment summons. The wife appealed. The central issue was whether the protection against compelled self-incrimination required exclusion of both the husband’s statements and the documents he had produced.

1. Appeal allowed in part. The judge was right to exclude the statements which the husband had been compelled to file, but wrong to exclude the documents themselves. Lady Justice Rafferty and Lord Justice Kitchin agreed with Lord Justice Thorpe.

2. A judgment summons under section 5 of the Debtors Act 1869 is penal because it exposes the debtor to imprisonment. The debtor is therefore not a compellable witness. By contrast, the remedies available on a general enforcement application are non-penal. A respondent to that process may be compelled to provide information and undergo an examination as to means.

3. The creditor could not use the general enforcement process merely as a device for obtaining compelled disclosure and examination for deployment in later judgment-summons proceedings. Once the creditor switched to the penal track, the debtor’s compelled statements were protected by the principle against compelled testimony carrying a risk of self-incrimination. Documents produced pursuant to the earlier order did not attract the same exclusion.

4. R v K [2010] QB 343 was distinguished. It concerned the state’s use, in a subsequent criminal prosecution for tax evasion, of evidence given in ancillary-relief proceedings. The present case concerned enforcement between a judgment creditor and debtor. The relevant embargo was confined to evidence compelled from the debtor in enforcement proceedings after the order being enforced. It did not make evidence given in proceedings before that order inadmissible.

5. The order made during the non-penal enforcement process could properly require evidence. Once the judgment summons had been issued, however, the appropriate course was to give the husband permission, rather than compel him, to file evidence in answer. The order excluding the statements was affirmed; the exclusion of the documents was set aside.

• Court of Appeal (Civil Division): By [2013] EWCA Civ 586, unanimously allowed the wife’s appeal in relation to documents but upheld the exclusion of the husband’s compelled statements.
• High Court, Family Division: His Honour Judge Cryan dismissed the wife’s attempt to rely on information and documents produced by the husband under an earlier compulsory disclosure order. No neutral citation is stated.