10 August 2016
Consideration of an appeal from a suspended committal order, a variation of periodical payments order, and an order for costs in an application for judgment summons
Facts
- After a 25-year marriage, W’s financial remedy application was determined by HHJ Brasse in August 2014.
- Inter alia, HHJ Brasse determined that the net available capital amounted to £560,000, most of which comprised the net equity in the FMH and an inheritance received by W. The judge made an order for sale of the property, with net proceeds to be divided so as to provide W with total resources of £495,0000 (88%) and H with £66,000 (12%). The judge also made a pension sharing order giving W total pension funds of £70,000 and H £212,000.
- HHJ Brasse assessed H’s earning capacity at £75,000 net pa (£6,250 net pm). The judge determined that, after meeting his outgoings, this provided H with a “surplus” of £2,000 pm. Based on this assessment, H was ordered to pay £24,000 pa in spousal maintenance (providing W with annual income of £42,500), to cease upon H’s 65th birthday in 2029, but with no s.28(1A) bar.
- In calculating H’s “surplus” income, the judge had seemingly not taken into account his liability under the order to pay the mortgage instalments in relation to the FMH (£3,867 pm) until sale of the property. In fact, H had a shortfall of around £2,100 per month between income and outgoings.
- In October 2014, W applied for a judgment summons in respect of alleged arrears totalling £11,733. The summons was issued on 3 December 2014. At the end of January 2015, the first hearing erroneously took place before a DDJ, who did not have jurisdiction to determine the summons. The DDJ ordered that H “shall” file and serve a statement of his affairs.
- In February 2015, H either issued, or was treated as having issued, an application to vary the maintenance order.
- On 30 March 2015, the case was again listed before a judge who did not have jurisdiction to determine the judgment summons. Further directions were given in relation to the service of additional evidence. The FDA in the variation application was re-listed alongside the adjourned judgment summons.
- HHJ Hughes considered both applications on 7 May 2015. After hearing live evidence on both matters, the judge made a suspended committal order, reduced maintenance from £2,000 to £1,750 pm, and ordered H to pay £10,000 towards W’s costs in issuing the judgment summons.
- H appealed all three orders; his appeal was heard by the Court of Appeal on 6 July 2016.
Held
- The suspended committal order was set aside as was the consequent costs order. The judgment summons itself was dismissed.
- H’s appeal in respect of the variation was dismissed.
- It was conceded that there had been fundamental procedural errors in the judgment summons proceedings. The respondent to such an application (a form of criminal proceedings) cannot be required to give evidence (r 33.14, FPR 2010) and is entitled to legal aid. By giving evidence before HHJ Hughes without being informed of his right to remain silent, H was effectively deprived of this right.
- The procedural errors which occurred arose in part because the judgment summons and the variation application were heard together.
- The Court of Appeal considered unanimously that when a court determines an application for variation it is not required to consider the matter de novo; often this would be disproportionate.
- Accordingly, HHJ Hughes’ approach to H’s variation application was not overly restrictive. It was a “light touch” approach, but not outwith the statutory exercise required by s.31 MCA 1973.