Mann v Mann

A court may determine a judgment summons under the Debtors Act 1869 despite a limited stay of enforcement, provided that execution of any resulting prison sentence is stayed pending the appeal process. An order initially made as interim periodical payments may be re-characterised, by agreement or application, as a scheduled part-payment of an outstanding lump sum. Enforcement proceedings require a close inquiry into means and wilful default. Where a debtor pays substantial sums to solicitors while owing a financial liability, the court may require corresponding payments to the judgment creditor.

The judgment concerned enforcement of financial obligations owed by the respondent husband to the applicant wife. An earlier emergency order had required monthly payments, but the husband made only minimal payments while substantial arrears and an outstanding lump sum remained. The Court of Appeal had granted a limited stay of enforcement under section 5 of the Debtors Act 1869 pending an application for permission to appeal.

The issues were whether the High Court could proceed with the judgment summons, how the earlier order should be characterised, and whether further enforcement directions should be made.

1. The court held that the Court of Appeal’s order stayed execution of any prison sentence imposed under the judgment summons, but did not stay the judgment summons proceedings themselves. The High Court could therefore determine guilt and sentence, while staying execution of any warrant pending the permission application.
2. The order made on 12 May 2014 had initially been expressed as interim periodical payments under section 23(1)(a) of the Matrimonial Causes Act 1973. Following the respondent’s application that payments should be credited against the lump sum debt, the order was re-characterised as a court-directed scheduled part-payment of the outstanding lump sum.
3. The judge rejected the submission that the relevant reasoning in Karoonian v CMEC [2012] 3 FCR 491 was obiter. Paragraphs 56 to 58 were treated as the core ratio, and the judge had followed that reasoning in Bhura v Bhura [2012] EWHC 3633 (Fam).
4. Following Mubarak v Mubarik [2007] 1 FLR 722, the judge ordered that the husband could pay money to his solicitors only if he paid a corresponding amount to the wife in partial discharge of the debt.
5. The judgment summons was adjourned to 30 June 2014. At that hearing the court would examine whether the husband was in wilful default, determine the precise principal and interest outstanding, and consider the effect of section 24(2) of the Limitation Act 1980 and any discretionary remission. Permission to appeal was refused by the High Court.

• High Court (Family Division): on 3 June 2014, Gloster LJ ordered a stay of enforcement by judgment summons under section 5 of the Debtors Act 1869, but the judge interpreted that order as staying execution of imprisonment only.
• High Court (Family Division): the application for permission to appeal was dismissed. The judgment summons was directed to proceed on 30 June 2014, subject to the stay of execution of any prison sentence.
• Court of Appeal: the judgment records that permission to appeal was subsequently granted in relation to the payment and pound-for-pound enforcement orders, with enforcement stayed pending the appeals.