England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
THE BURY ST EDMUNDS COUNTY COURT
(His Honour Judge Holt)

		Royal Courts of Justice Strand London WC2 Monday, 15th January 2001

1. LORD JUSTICE THORPE: On 7th January 1998 by consent, an order was made by District Judge Rogers in the Norwich County Court determining the division of assets and income between Philip John Cuff and Jean Rose Quinn, then Cuff. Under the terms of the agreed order Mr. Cuff had to make continuing payments, some of them by undertaking, and those payments he maintained for a while until seemingly falling into financial difficulties. He was the first to return to court issuing an application for release from his undertakings. That was rightly refused by the District Judge on 2nd October, on the simple basis that Mr. Cuff was seeking perpetual release when his only ground was financial difficulty that might turn out to be transient since he is only in his 40s and has had a successful business career in the past.
2. As a result of the District Judge's ruling, Mrs Quinn understandably issued a judgment summons on 3rd November which came for hearing before His Honour Judge Holt on 11th December. The judge adopted the conventional management of a Judgment Act summons, namely to inquire what was the original debt. He then proceeded to the recent hearing before the District Judge and concluded that, in the light of that recent investigation, he had to do no more than make a suspended committal. There is some doubt as to the terms of the suspended committal, but the order as drawn required Mr. Cuff to pay a sum of just over £5,500 by instalments of £500 for every calendar month, the first instalment to be paid by 1st January, the committal order for imprisonment for 14 days to remain suspended so long as payments were maintained. Unfortunately, nobody in the court paid any heed to a Practice Direction which was issued at the beginning of October, which is intended to draw attention to the new standards that must be observed in applications to commit if they are not to fall foul of the Human Rights Act. That Practice Direction applies equally to judgment summonses. It has received very little publicity in the family justice system, although it applies as well to family proceedings as well as to civil proceedings. So there can be no criticism of the judge or of anybody else that on 11th December the disposal of the judgment summons was in a conventional and now old fashioned manner.
3. The exposure of the deficiencies of that conventional practice occurred in this court just before Christmas when judgments were given in the case of Mubarak v Mubarak. One of the judgments invites the President to issue a Practice Direction drawing attention to this development. She has only just received the judgments and has had no opportunity to consider whether or not to make a Practice Direction. Plainly, the radical change in the conduct of judgment summonses needs to be understood rapidly by all specialist practitioners in the ancillary relief field.
4. That said, this appeal must succeed, even on the basis contended for by Mr. Deegan, namely that the husband's inability to pay as a wilful refusal was simply not established to the criminal standard. It has been agreed between the parties that the appeal having been allowed, the judgment summons of 3rd November will be remitted to the County Court for rehearing, and at the same time it has been agreed that Mr. Cuff will take out a summons for the suspension of his obligations under his various undertakings. It is further agreed that those two processes will be brought on for hearing in the county court at one and the same time. That will enable the judge to make a realistic assessment of whether or not Mr. Cuff is in a position to make any present payments and, if not, for how long his obligation should be suspended. I would myself allow this appeal and make the order which I have just set out.
5. LORD JUSTICE LAWS: I entirely agree.
6. MR. JUSTICE PENRY-DAVEY: I also agree.
Order: Appeal allowed; matter remitted to the county court; no order for costs. (Order not part of the judgment of the court)