Mann v Mann

Once a spousal periodical-payments order has been discharged after capitalisation, the court has no jurisdiction to make further periodical-payment orders unless a subsisting order remains capable of variation or discharge. Non-payment of the capitalised lump sum does not revive that jurisdiction.

Periodical payments cannot be re-characterised as scheduled part-payments of the lump sum. Enforcement must proceed through an available statutory or procedural mechanism, such as variation of a lump sum payable by instalments or a judgment summons. Interim relief and procedural fairness remain subject to those limits.

These appeals concerned orders made by Mostyn J on 12 May and 12 June 2014 during enforcement proceedings concerning an unpaid capitalised lump sum. The original periodical-payments order had been discharged in 2005 when the payments were capitalised, but the lump sum remained substantially unpaid. Mostyn J ordered interim periodical payments and later re-characterised them as scheduled part-payments of the lump sum, coupled with a payment condition affecting H’s access to his solicitors.

The central issues were whether the court retained jurisdiction to make such orders after discharge, whether the orders could be justified through a maintenance agreement or enforcement procedure, and whether interim relief was available pending determination of the enforcement proceedings.

1. Disposition. The Court of Appeal, in the judgment of Macur LJ with which Patten LJ and Burnett LJ agreed, allowed both appeals. W’s application for permission to appeal Charles J’s 2005 order out of time was dismissed.
2. Statutory scheme and jurisdiction. The Matrimonial Causes Act 1973 distinguishes between periodical payments and lump sums. A lump sum may be made payable by instalments, but the earlier order had not made an instalment order. Consistently with Minton v Minton [1979] AC 593 and G v G (Periodical Payments: Jurisdiction) [1997] 1 FLR 368, once the application for periodical payments had been dealt with and the order discharged, the court’s jurisdiction ceased. The distinction between dismissal, discharge and termination did not permit a further application in the absence of a continuing order capable of variation.
3. Re-characterisation. Mostyn J had no jurisdiction to order interim periodical payments and could not avoid that conclusion by describing the payments as scheduled part-payments of the outstanding lump sum. That mechanism was available only in relation to a lump sum payable by instalments that was amenable to variation, or through a judgment summons under FPR 2010, r 33.16(1) and (2). Hamilton [2013] EWCA Civ 13 did not establish a power to redraft the unambiguous 2005 order.
4. Other possible bases. The November 2011 agreement could not assist W because the mediation condition had failed and the agreement was therefore at an end. Section 35 of the Matrimonial Causes Act 1973 permits alteration only of a subsisting maintenance agreement. FPR 2010, r 20.2 did not authorise interim payments of this kind; the enforcement proceedings had to proceed through due process.
5. Procedural fairness and final direction. The £1-for-£1 order was in any event made in connection with an order that was ultra vires. Any process affecting H’s legal representation in committal proceedings had to have regard to the required investigation of wilful default under section 5 of the Debtors Act 1869 and could not pre-judge that issue. The case was directed to be listed before another judge of the Family Division because Mostyn J was objectively compromised by his expressed hostility towards H.

• Court of Appeal (Civil Division): Allowed the appeals against Mostyn J’s orders of 12 May and 12 June 2014, dismissed W’s application for permission to appeal out of time, and directed that the case be listed before another Family Division judge.
• High Court (Family Division): Mostyn J made interim payment and enforcement-related orders during proceedings under FPR 2010, including the subsequent re-characterisation of the payments as part-payments of the outstanding lump sum.