Prest v Prest

On a judgment summons for non-payment of maintenance, the creditor must prove to the criminal standard that the debtor had the means to pay and refused or neglected to do so. The burden remains on the creditor throughout, and the debtor cannot be compelled to give evidence.

Earlier findings about wealth made to the civil standard cannot themselves establish those matters. Direct payments chosen by the debtor do not ordinarily discharge an obligation to make periodical payments in the manner ordered, although they may mitigate any penalty. A court need not adjourn for further medical investigation where the debtor has failed to provide cogent evidence of inability to attend.

A husband appealed as of right from an order of Moylan J granting his former wife's judgment summons under section 5 of the Debtors Act 1869. The judge found that the husband had wilfully defaulted on periodical payments totalling £360,200. He imposed four weeks' imprisonment, suspended for three months on condition that the arrears were paid.

The husband had not attended the hearing, having unsuccessfully sought an adjournment on medical grounds. His appeal challenged the refusal to adjourn, the judge's previous involvement and alleged reliance on civil-standard findings, the treatment of payments made outside the order, the effect of property transfers and a pending variation application, and the sentence and suspension condition.

The central questions were whether the hearing had been fair and whether the statutory elements of means and refusal or neglect to pay had been proved to the criminal standard.

1. Appeal dismissed unanimously. The judge's order stood, save that the deadline attached to the suspended committal order was revised.

2. The refusal to adjourn was a proper case-management decision. The medical material was vague and insufficient even on the husband's case. A party familiar with the proceedings who relies on a long-standing medical condition must provide full and cogent evidence. The judge was not required to remedy deficiencies in that evidence by directing further investigation or requiring the general practitioner to attend. The procedural history, the husband's previous evasiveness and his recent statement that he intended to attend were relevant context.

3. Judgment-summons proceedings can result in imprisonment. The creditor must therefore prove beyond reasonable doubt both that the debtor has or has had the means to pay since the order and that the debtor has refused or neglected to pay. The burden remains on the creditor throughout, and the debtor cannot be compelled to give evidence. Suggestions in Zuk v Zuk [2012] EWCA Civ 1871, Bhura v Bhura [2012] EWHC 3633 (Fam) and Mohan v Mohan [2013] EWCA Civ 586 that proof of the order and non-payment may readily shift an evidential burden to the debtor were to be treated with substantial caution.

4. A judge determining a later quasi-criminal application must ensure that earlier findings made to the civil standard are not used as substantive findings under the criminal standard. Moylan J repeatedly identified the correct burden and standard. His finding that the husband had means rested on five post-order matters, including payments actually made, an application premised on the availability of £600,000, the absence of a proper financial account despite volunteered evidence, inconsistencies in the husband's case and largely unchallenged holiday expenditure. No contamination was established.

5. The husband could not substitute substantial payments selected by him for the periodical payments required by the order. The correspondence did not establish the wife's acquiescence. Such payments were properly considered in mitigation rather than credited pound for pound against the arrears. The property-transfer and set-off arguments failed on the valuation and encumbrance information ultimately provided.

6. The stayed application to vary periodical payments did not prevent enforcement. The relevant payment mechanism remained intact, and the stay itself had not been appealed. Four weeks' imprisonment was unremarkable within the statutory maximum of six weeks, given the amount of the default. The finding that the husband had means also supported the conclusion that he could satisfy the condition of suspension.

1. Court of Appeal (Civil Division): The husband's appeal was dismissed by [2015] EWCA Civ 714. The committal order remained in force, but the payment deadline governing its suspension was revised to 28 September 2015.

2. High Court, Family Division: On 29 July 2014 Moylan J granted the wife's judgment summons, found wilful default of £360,200, and imposed four weeks' imprisonment suspended for three months upon payment of that sum.