Russell v Russell
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE NEILL,LORD JUSTICE NOURSE |
| Judgment Date | 10 July 1985 |
| Judgment citation (vLex) | [1985] EWCA Civ J0710-3 |
| Docket Number | 85/0369 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 July 1985 |
[1985] EWCA Civ J0710-3
The Master of the Rolls
(Sir John Donaldson)
Lord Justice Neill
and
Lord Justice Nourse
85/0369
Nos. FF7 & 9/85
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
(Civil Division)
Royal Courts of Justice,
MR. G. ROBINSON (instructed by Messrs. Blakesley & Rooth, Chesterfield) appeared on behalf of the Appellant.
MISS J. MATTHEW-STROUD (instructed by Messrs. Mathers, Chesterfield) appeared on behalf of the Respondent.
On 1st August, 1983 the Chesterfield County Court ordered Mr. Michael Thomas Russell to pay his former wife the sum of £16 per week towards the maintenance of their child. The order was made by consent and was expressed to take effect from 1st June, 1983, but this was subsequently amended, no doubt under a "slip rule", to read "1st June, 1982". Mr. Russell was not an enthusiastic payer and by 17th January, 1984 he had paid a little under half what was due. Mrs. Russell then registered the order in the Chesterfield Magistrates' Court and thereafter any payments should have been made to and recorded by that Court.
On 5th July, 1984 Mrs. Russell complained to the Magistrates' Court that the payments were in arrears and proceedings were begun on 2nd August, 1984 coming on for hearing on 6th September, 1984.
The Justices based their decision upon arrears of £1,056 at the date of the hearing, but it is now accepted that that figure should have been £880. The Justices remitted £352, representing 22 weeks, during which they found that Mr. Russell had been unemployed or sick, at £16 per week. They accepted evidence that Mr. Russell had made unrecorded payments direct to Mrs. Russell amounting to £416. This represented maintenance for 26 weeks, but the Justices held that 12 of these weeks covered a period of unemployment in respect of which they had already decided to remit the liability. This left 14 weeks at £16 per week or £224. This they also "remitted", although, in the circumstances, it might be thought to have been paid and therefore not to have been capable of remission.
In the result Mr. Russell was left with a liability to pay £480, being £1,056 less "remissions" totalling £576. The Justices ordered him to pay this sum within 28 days. On 4th October, 1984 a differently constituted Bench made an order committing him to prison for 30 days, but suspended the order for one month in order to give Mr. Russell an opportunity to comply.
Mr. Russell appealed to the High Court against both these orders by case stated.
At the hearing on 5th September, 1984 Mr. Russell's solicitor had referred the Justices to Ross v. Pearson (1976) 1 W.L.R. 224 and invited them to remit all arrears which had accrued more than 12 months previously. The Justices stated in the relevant case that: "We were not overly impressed by. Mr. Russell, he was evasive about the terms of the settlement and only when taxed by the clerk did he admit to receiving £1,000 from a joint building society account.
"We decided not to exercise our discretion to only enforce arrears accruing within twelve months of the date of complaint for the following reasons: Mr. Russell had a comfortable lifestyle and was able to run two cars, keep three horses and buy and keep other livestock even during a period of unemployment. When working, Mr. Russell had a lucrative job and it was apparent he had been irresponsible in respect of payments to his child, his present wife had in fact taken upon herself the responsibility of making payments under the order.
"Although part of the arrears had accrued over twelve months ago, we were of the opinion it would be unjust if they were not enforced in full. We distinguished the case before us from that of Ross v. Pearson, the order being enforced before us being of relatively recent origin.
"We were further satisfied that the £480 could easily be found from the sale of a car and/or livestock, any reasonable person would have already done this to defray expenses during unemployment, particularly having regard to the fact they were producing no income. Indeed, upon the sale of his present property Mr. Russell would have difficulty in keeping the livestock he now maintained."
The question stated for the opinion of the High Court was: "Whether the court's decision on 6th September, 1984 that the defendant should be ordered to pay arrears of maintenance of £480, £272 of which accrued more than one year ago, was a conclusion which any reasonable bench of justices could reach on a proper consideration of the facts as found and whether the refusal to remit the further sum of £272 from the arrears constituted a proper exercise of judicial discretion."
The Justices who made the committal order stated: "Although we were not the justices who adjudicated on 6th September, 1984 a full note of the evidence was before us. We were told there was no change in the circumstances of the parties and the £480 had not been paid. Mr. Russell made an offer to pay off the arrears from the proceeds of the sale of his house, but we rejected this. We were satisfied Mr. Russell had the necessary assets available…to satisfy the order but had made no effort whatsoever to comply with the order.
"We were further satisfied that the arrears in full should be enforced.
"Mr. Russell was found to be in culpable neglect and accordingly we committed him to prison for 30 days but suspended issue of the commitment warrant for one month to give him a final opportunity to comply with the order."
The question stated for the opinion of the High Court was: "Whether the court's decision at the adjourned hearing on the 4th October, 1984 to order that unless the defendant pays arrears of maintenance of £480 withinone month he be committed to prison for 30 days, was a conclusion which any reasonable bench of justices could reach on proper consideration of the facts as found and whether such decision amounted to a proper exercise of judicial discretion.."
Tudor Price J., sitting at Nottingham, dismissed both appeals. He said: "It having been submitted on behalf of the Appellant, that having regard to the authorities, they were wrong to make him pay for sums which had accrued more than twelve months ago. The trilogy of cases about this are well know: Pilcher and Pilcher, Ross and Pearson, and Fowler and Fowler. The Justices distinguished Ross and Pearson on the basis this was a very recent order having been made by agreement in August, 1983. I am doubtful whether they could properly distinguish it on that basis.
"The question in the divisional court is, however, whether the court in the exercise of its discretion should grant relief where there have been errors in reaching a figure, if justice has been done broadly in the figure that was ordered. It seems to me the justices very probably had in mind that that sort of sum, just under £500, was a sum which he could well afford and which he ought to be made to pay. It may be that they reached that sum by the wrong route. It may be that the contention is right that they ought not to have included the £272, accrued more than a year ago. But if they had taken that view then I venture to think they would probably have not made the allowance for the period of unemployment to which I have referred, which they did. So, in my view the Justices here did justice. I think they reached a proper decision, and in my view the court ought to leave the matter as it is, rather than reach a figure by a different route, which would come to approximately the same. So this appeal by way of 'case stated' in respect of the order to pay arrears of maintenance is dismissed.
"As far as the order of committal is concerned, I see nothing wrong in the order made by the Justices. The Justices, in the certificate which they issued, have stated that they found him to have been in culpable neglect. It is clear, having read his evidence in the Magistrates' Court, that they were right. They saw him. They were fully entitled to reach that view and I see no reason why they should not enforce their Order in that way, namely by a suspended committal to prison for 30 days in respect of £480. I cannot see that he would have any difficulty in raising that money and paying it for his daughter's maintenance, so both appeals are dismissed."
Mr. Robinson, appearing for Mr. Russell, has advanced two submissions. The first is that the learned Judge, having accepted that the Justices may have reached their decision by a wrong route, that is to say having misdirected themselves in law, should not have assumed that they would have reached the same destination if they had followed the correct route. He should have remitted the matter to the Justices to reconsider their decision in the light of his directions on the law. The second is that the Justices misdirected themselves in holding that they had a discretion only to enforce arrears accruing within the previous 12 months. There is a rule of practice, amounting to a rule of law, that only what might be described as "current arrears", i.e. those accruing within the previous 12 months, will be enforced and that, in so far as the Justices had any discretion to depart from this rule, it was to be exercised only in exceptional cases.
I can dispose of the first submission briefly. Where...
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