AB v BA

Appellate interference with a first-instance judge’s discretionary assessment of a debtor’s ability to pay should be cautious, particularly where the judge has heard detailed evidence and assessed the parties. Reconsideration is justified where later evidence or a concession establishes that funds are available.

An instalment order should provide a realistic route to payment of principal and interest within a reasonable period, while taking account of the debtor’s circumstances and any dependent children. The court may impose a lower rate initially and provide for a planned increase when that can occur without undue hardship. Related liabilities may be enforced consecutively at the same rate where a final determination avoids further applications.

The husband appealed against two costs orders made by HHJ Oliver on 9 and 30 June 2023. The orders required the wife to repay £62,019.97 at £50 per month and provided that further costs liabilities should not be enforced without leave.

The appeals concerned enforcement and the repayment mechanism, rather than the underlying costs liabilities. The husband sought payments of £1,000 per month. Before the appeal, the wife accepted that she could pay £500 per month. The central issues were the appropriate instalment rate and whether enforcement of the further liabilities should be deferred.

1. Appeals varied. The rate of repayment was increased to £700 per month, rising to £1,000 per month after five years. The further costs liabilities were directed to be enforced consecutively, at the same rate, once the first liability had been cleared.
2. An appellate court should be slow to interfere with a first-instance judge’s findings of fact and evaluative discretion, particularly where the first-instance judge had a greater opportunity to assess the parties and the evidence. The principle in Fage UK Ltd & Anor v Chobani UK Ltd & Anor [2014] EWCA Civ was applied.
3. The wife’s concession that she could pay £500 per month demonstrated that funds were available and made reconsideration of the earlier discretionary determination appropriate. Her voluntary payment to her mother could not properly take priority over a costs liability imposed by the family court.
4. The court assessed the wife’s budget in the round. It allowed for the prospective increased costs of a larger home and the need to leave her in a manageable position while the children remained young. A rate of £700 per month was proportionate for the present, with a planned increase after five years.
5. The court applied Loson v Stack [2018] EWCA Civ 803. An instalment order requires a realistic repayment schedule, supported by evidence that principal and interest can be paid within a reasonable period. The creditor’s interests are paramount, although the balance depends on the facts.
6. Deferring enforcement of the further costs orders was not in the interests of the family. Consecutive enforcement at the same rate provided a final mechanism, subject to unforeseen circumstances. The judge discouraged further costs applications given the lengthy period required to discharge the liabilities.

• High Court (Family Division): appeals against costs-enforcement orders made by HHJ Oliver on 9 and 30 June 2023 were heard after permission was granted by the President of the Family Division on 17 January 2024. The orders were varied.