Prest v Prest

A judgment summons under section 5 of the Debtors Act 1869 is criminal in character. The applicant bears the burden of proving, to the criminal standard, that the debtor has or has had the means to pay and has refused or neglected to do so. Payments made voluntarily for related purposes do not discharge liability under an order for periodical payments unless properly attributable to that order. Where the elements are proved, imprisonment may be imposed, but the sentence may be suspended to allow payment.

The wife applied for the committal of the husband for failing to pay periodical payments ordered on 16 November 2011. The alleged arrears originally exceeded £428,000. The husband contended that his trading business had collapsed and that he lacked the means to pay. He also relied on payments made for the benefit of the wife and children.

The application was heard under section 5 of the Debtors Act 1869 and rule 33.14 of the Family Procedure Rules 2010. The central issues were whether the husband had the means to pay the sums due and whether he had refused or neglected to pay them.

1. The application was proved. The court was satisfied so that it was sure that the husband had had the means to pay £360,200 and had wilfully refused or neglected to pay it.
2. The proceedings were criminal in character. The wife therefore bore the burden of proving both statutory elements to the criminal standard. The husband was not compelled to give evidence, but his unsupported evidence and failure to provide proper financial disclosure were relevant to the court’s assessment.
3. The husband’s previous valuation of his wealth, his application for time to pay £600,000 in order to pursue an appeal, substantial expenditure on holidays, and payments approaching £215,000 demonstrated access to sufficient resources. His account of the collapse of the trading business was inconsistent with his earlier case and was not accepted.
4. Payments made for household expenses, school fees, staff and other benefits were payments made at the husband’s election. They could be relevant in mitigation, but they did not satisfy the obligation to make the ordered periodical payments. The court nevertheless treated £5,000, £20,000 and £11,300 of household payments as reducing the arrears.
5. The court imposed four weeks’ imprisonment, suspended for three months until 28 October 2014. The sentence would be suspended entirely if the husband paid the wife £360,200 within that period.

The judgment records that the husband’s appeal against the financial remedy order was dismissed by the Court of Appeal on 20 April 2012 after he failed to satisfy conditions imposed for permission to appeal. Appeals concerning company-held properties were ultimately determined by the Supreme Court, which reinstated the property transfer orders. Those matters formed part of the background to this judgment summons.