Consideration of whether a costs order can be enforced by way of a judgment summons.
Facts
- H fell into arrears in respect of child periodical payments and an unpaid costs order. As part of a consent order H agreed to pay a portion of the arrears, as well as a lump sum towards W’s costs. H paid in relation to the arrears; he failed to pay towards W’s costs. W applied for a judgment summons to enforce the sum outstanding. H was given notice but did not attend the hearing.
Held
- H received a custodial sentence of 14 days, suspended for 28 days, before which he must discharge the arrears.
- The costs lump sum was determined to be an order for ‘payments having effect as if made under Part 2 MCA 1973’, and therefore was enforceable by judgment summons under s.5 of the Debtors Act 1869. Costs awarded following a judgment would not usually fall within this definition, but Mostyn J treated it as amenable to the Act as it was part of a global figure that included amounts enforceable under the Act. The labelling of figures within that amount was immaterial.
- In any event, the payment of costs awards (and arrears that have accrued since the issue of a judgment summons) can be made into terms of suspension of any sentence, even if they are not directly enforceable on the committal application.
- Once a judgment creditor has established a case to answer (usually by proof of an order and non-payment), the evidential burden shifts to the judgement debtor. If they fail to discharge the evidential burden, then s.5 is made out against them to the required standard. In Prest v Prest [2016] 1 FLR 773 McFarlane LJ had questioned (obiter) whether the evidential burden does, in fact, shift to the respondent in these circumstances. In response, Mostyn J identified that the principle is derived from the binding Court of Appeal decision in Karoonian v CMEC [2012] EWCA Civ 1379, as summarised by Mostyn J in Bhura v Bhura [2013] 2 FLR 44.
