Morris v Morris

A judgment summons is a criminal proceeding. The debtor cannot be compelled to give evidence and must be informed of the rights to remain silent and to obtain publicly funded representation. A committal application should not be heard with another application on which the debtor needs to give evidence.

On an application to vary periodical payments, the court need not reconsider the financial provision exercise de novo. It must conduct a proportionate review, addressing the circumstances and factors relevant to the proposed variation. The review may properly be light touch. An appellate court may interfere only where the discretionary decision is flawed or falls outside the bracket of fair awards.

The husband appealed from orders of HHJ Hughes QC committing him to prison on a suspended basis for arrears of periodical payments, reducing those payments from £2,000 to £1,750 per month, and requiring him to pay £10,000 towards the wife's costs.

The wife conceded that the committal order could not stand because the husband had been required to provide evidence, had given oral evidence without being informed of his right to remain silent, and had not been informed of his entitlement to publicly funded representation. The remaining contested issue was whether the judge had applied the correct approach under Matrimonial Causes Act 1973 section 31 when varying the periodical payments order.

1. The appeal was allowed in respect of the committal and costs orders. A judgment summons is a criminal proceeding. The respondent cannot be compelled to give evidence and must be told of the right to remain silent. The respondent is also entitled to legal aid and, if unrepresented, must be informed of that entitlement and given a reasonable opportunity to obtain representation. These fundamental safeguards had not been provided. The suspended committal order therefore had to be set aside: [2001] 1 FLR 698 and [2014] EWCA Civ 1511 applied.

2. The judgment summons and variation application should not have been determined together. Hearing a committal application alongside an issue on which the alleged contemnor needs to give evidence effectively deprives that person of the right to silence. The resulting procedural error was serious. The costs order was consequential upon the invalid committal order and was also set aside. The judgment summons itself was dismissed in view of the procedural failures, the subsequent sale of the former matrimonial home, the deduction of arrears from the husband's share, and proportionality.

3. The appeal from the variation order was dismissed. On an application under section 31 of the Matrimonial Causes Act 1973, the court is not required to reconsider the matter de novo. It must conduct a review proportionate to the case. The court may focus on factors relevant to the variation and, where appropriate, undertake a light-touch review. A mandatory de novo exercise would conflict with the overriding objective and proportionate case management. Flavell v Flavell [1997] 1 FLR 353 and Lewis v Lewis [1977] 1 WLR 409 explained; Garner v Garner [1992] 1 FLR 573 approved.

4. The flexibility inherent in section 31 also applies when the court considers whether to shorten the term of periodical payments under section 31(7)(a). An application made soon after a final order would require more significant changes than the ordinary employment and income changes established here. A shorter term was also unjustified by the wife's continuing income needs.

5. The judge's brief, light-touch decision adequately addressed the parties' changed incomes and did not omit the statutory exercise. An appellate court should avoid narrow textual analysis and should not substitute its own discretion for that of the first-instance judge. The husband failed to show either a flawed discretionary exercise or an award outside the bracket of fair awards. Time was extended and permission granted for the variation appeal, but that appeal was dismissed.

1. Court of Appeal (Civil Division): By [2016] EWCA Civ 812, allowed the appeal from the suspended committal and consequential costs orders, dismissed the judgment summons, and dismissed the appeal from the variation order.

2. Central Family Court: HHJ Hughes QC made a suspended committal order on the wife's judgment summons, reduced periodical payments from £2,000 to £1,750 per month, and ordered the husband to pay £10,000 towards the wife's costs.