Smruti Dharmesh Bhura v Dharmesh Dwarkada Bhura
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn: |
| Judgment Date | 17 December 2012 |
| Neutral Citation | [2012] EWHC 3633 (Fam) |
| Docket Number | Case No: FD12F00238 |
| Court | Family Division |
| Date | 17 December 2012 |
[2012] EWHC 3633 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Mostyn
Case No: FD12F00238
Sally Harrison QC (instructed by James Maguire & Co) for the Applicant
Jason Green (instructed by Hodge Jones & Allen) for the Respondent
Hearing dates: 11–13 December 2012
On 31 August 2011 Judge Kristina Blum, sitting in the Superior Court of Gwinnett County, Georgia, USA, gave a final judgment in the divorce proceedings between the Applicant and the Respondent. She decreed a final divorce and further, inter alia, ordered that (a) the Respondent should pay the Applicant lump sum alimony of US$2m within 30 days, with statutory interest; and (b) pending payment of the lump sum he should pay her the sum of $4,000 per month commencing 1 September 2011, with credit to be given in respect of such payments against the lump sum award.
After a certain amount of bureaucratic confusion that Order was registered here pursuant to the Maintenance Orders (Reciprocal Enforcement) Act 1972 as amended, in the case of the USA, by the Reciprocal Enforcement of Maintenance Orders (United States of America) Order 2007 SI 2007 No. 2005. The Order was initially registered in the Westminster Magistrates Court (as the rules require) on 27 February 2012, which court eventually on 20 November 2012 granted an application for the order to be re-registered in the High Court. On 30 November 2012 HMCTS confirmed that the Order had been registered in the High Court and allocated the number HC/03/2012. The order therefore has the status and effect of a High Court order made originally here.
On 23 November 2012 the Applicant applied for:
i) An order that the Respondent be committed to prison pursuant to s5 Debtors Act 1869, it being alleged that since the date of the Order of 30 August 2011 he has had the means to satisfy the award and refused or neglected to do so; and
ii) The issue of the writ ne exeat regno against the Respondent.
This is my judgment on those applications.
On 27 November 2012 Theis J granted the application for the writ. Implicitly it was to endure until this hearing where its continuance would be considered.
The legal landscape
The Debtors Act 1869 swept away the extensive powers of imprisonment for debt which had existed for centuries prior to then, and which had been acerbically described by Victorian social commentators and novelists. However, by s5 judgment debts carried the ultimate sanction of imprisonment, for a maximum of 6 weeks. But the class of judgment debts thus enforceable was progressively narrowed so that by the time of the passage of the Administration of Justice Act 1970 (s11 and Sch 4) the debts were confined to maintenance orders and taxes. In addition there were (and are) further statutory powers to imprison people for non-payment of things like rates and television licence fees. Later, a corresponding power was provided in the Child Support Act 1991, ss39A and 40.
s5 provides:
(1) Subject to the provisions herein-after mentioned, and to the prescribed rules, any court may commit to prison for a term not exceeding six weeks, or until payment of the sum due, any person who makes default in payment of any debt or instalment of any debt due from him in pursuance of any order or judgment of that or any other competent court. ….
(2) That such jurisdiction shall only be exercised where it is proved to the satisfaction of the court that the person making default either has or has had since the date of the order or judgment the means to pay the sum in respect of which he has made default, and has refused or neglected, or refuses or neglects, to pay the same. …
An application under s5, known as a judgment summons, has always been a common feature of enforcement proceedings in the divorce courts. However, its regular use encountered an obstacle with the enactment of the Human Rights Act 1998 and the decision of the Court of Appeal in Mubarak v Mubarak [2001] 1 FLR 698. In that case the Court of Appeal decided that the then prevailing procedure, and the then prescribed forms, were not compliant with article 6 of the European Convention on Human Rights. In para 41 Thorpe LJ stated:
"I suspect that the consequence of the re-evaluation of the utility of the Debtors Act 1869 procedure in the light of the advent of the Human Rights Act 1998 will be that it will become a largely obsolete means of enforcement. I doubt whether experienced specialist practitioners will think that it has sufficient value for money to be worth its initiation. Certainly it seems to me that it will be more or less useless in cases involving fraudulent husbands seeking to conceal assets difficult or impossible to identify specifically."
Despite that doom-laden prediction the judgment summons did not become extinct. Instead the procedure and forms were reformed. In 2010 the procedure was reiterated and validated anew by Parliament with the promulgation of the Family Procedure Rules ( SI 2010 No. 2955). In Part 33, Chapter 2, extensive provisions concerning the issue and the hearing of a judgment summons were set out. PD 5A prescribes Form D62 for the Form in which an application under section 5 is to be made. This form addresses all the concerns of the Court of Appeal which had ruled that the old form by its language appeared to reverse the burden of proof.
The most important part of the ratio of the Court of Appeal is that an application under s5, being quasi-penal in nature, requires proof of the constituent elements to the criminal standard, namely beyond a reasonable doubt.
Curiously, the reforms to which I have referred were not extended to the procedures and paperwork for applications for commitment to prison under the Child Support Act 1991. Unsurprisingly, therefore, in the relatively recent decision of the Court of Appeal of Karoonian v C-MEC [2012] 3 FCR 491, those procedures and paperwork received identical condemnation to those previously meted out in Mubarak,
The Court of Appeal, following Mubarak, held that the procedures and forms referable to a commitment application under the Child Support Act 1991 needed to be reformed, in order to be Convention compliant, in line with the reformed procedure and paperwork found in Part 33, Chapter 2, Family Procedure Rules 2010. There was a slight difference of opinion between Ward LJ and Richards LJ as to how the procedure could be made compliant, and in this aspect Richards LJ was supported by Patten LJ. In his relatively short judgment Richards LJ set out definitively how the application should be formulated and proved. He said:
"[56] My starting point is that the statutory scheme under ss 39A-40B is capable of being operated in compliance with art 6. I agree with Ward LJ that, although s 39A(3) provides for the court to "inquire" as to the Defendant's means and whether there has been wilful refusal or culpable neglect on his part, and s 40(1) requires the court to be of the "opinion" that there has been wilful refusal or culpable neglect, the burden lies on the Commission to prove to the criminal standard that there has been wilful refusal or culpable neglect on his part (which will necessarily include proving that the Defendant has or has had the means to pay the unpaid amount). The District Judge in the case of Gibbons was wrong to say: "The court is required simply to form an opinion as to whether there has been wilful refusal or culpable neglect. There does not seem to be any burden of proof no[r] standard other than that of 'opinion'". The court must be satisfied to the criminal standard, on the basis of all the evidence before it, that there has been wilful refusal or culpable neglect. So much, indeed, is common ground between the parties.
[57] It follows that in practice the Commission must adduce sufficient evidence to establish at least a case to answer. In the generality of cases the exercise may not need to be a particularly elaborate one, since there will be a history of default from which inferences can properly be drawn. But the exercise is an essential one: the Defendant is not required to give evidence or to incriminate himself, and in the absence of a case to answer he is entitled to have the application against him dismissed without more. If the Commission establishes a case to answer, there will be an evidential burden on the Defendant to answer it, but that is unobjectionable in art 6 terms. I would add that there is no requirement under art 6 for the Commission to serve evidence in advance of the hearing, but if it chooses to wait for evidence to be given by the presenting officer at the hearing, the court must be astute to ensure that the Defendant is not taken by surprise and that the matter can proceed at that hearing without unfairness to him.
[58] Provided that the burden and standard of proof and the need procedural fairness are borne clearly in mind, there is in my view no inherent objection to considering the Defendant's means and the issue of wilful default or culpable neglect in a single hearing. They are closely related matters, and it seems to me that the statute contemplates that they will be inquired into at one and the same time: s 39A(3) provides in terms that on an application under sub-s 1) "the court shall (in the presence of the liable person) inquire as to (a) whether he needs a driving licence to earn his living, (b) his means, and (c) whether there has been wilful refusal or culpable neglect on his part". In so far as Ward LJ considers that this involves an impermissible muddling up of two distinct processes, I respectfully disagree. Mubarak v Mubarak was concerned with a specific regime and I do not read it as laying down any general rule that issues of...
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