England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
THE HIGH COURT OF JUSTICE
FAMILY DIVISION
His Honour Judge Cryan
FD07D1258

		Royal Courts of Justice Strand, London, WC2A 2LL
		22/05/2013

Lord Justice Thorpe:

Introduction

1. This is an appeal from the order of His Honour Judge Cryan of 27^th July 2012 dismissing the wife's endeavour to rely on documents and statements made by the husband during the course of complex proceedings to enforce a financial remedy order in the wife's favour.
2. The wife was represented by Mr Richard Harrison QC at that hearing, as in this court. The husband appeared in person below.
3. Accordingly, Mr Harrison very properly drew the judge's attention to the decision of this court in the case of R v K [2010] QB 343 which Mr Harrison rightly deemed to be against him. That scrupulous conduct cost his client the day, since the judge rejected all Mr Harrison's endeavours to distinguish his application from the cited authority.
4. So the key question in this appeal is whether Judge Cryan was right to exclude the evidence upon the ground that it had been given under compulsion. Under our law the respondent to a judgment summons cannot be compelled to give evidence and the same principle is clearly established by the decisions of the Strasbourg Court upholding the Article 6 right to silence of the accused in criminal proceedings.
5. A full understanding of the issues in the court below and also in this court requires a detailed summary of complex and long running proceedings. Whilst it is easy to be wise with hindsight there are undoubtedly lessons to be learnt from the lamentable history of the wife's endeavours to recover her due under compromises, and ultimately, orders of the court.

Litigation History

6. The wife petitioned for divorce on 13^th March 2007 but a decree nisi was not pronounced on the undefended petition until 17 April 2010.
7. The wife's financial claims were settled by a deed under which she was to receive £5.7 million payable by 6 May 2008. This was the first contract that the husband breached.
8. Her application to show cause was partially compromised by an agreement that she should receive 31% of the gross proceeds of sale of the former matrimonial home. On that basis her show cause notice was adjourned generally by the order of 27th October 2008.
9. In the event the property was sold for £6.2 million giving the wife an immediate entitlement of £1, 906, 500.
10. That development led to a further agreement under which the wife accepted the 31% in full and final satisfaction and the husband agreed to pay £1, 239, 433 immediately leaving a balance of £667, 066, 65.
11. That was the high point of the wife's pursuit. She recovered approximately two thirds of her due but was left with the risks of pursuing the balance.
12. The end result was an order of District Judge Walker of the 25^th October 2010 which provided that the husband must pay £100,000 within 28 days and the balance on or before 7^th January 2011.
13. The husband was swiftly in breach. He paid nothing on or before the 22^nd November although he did pay £50,000 on the 15th December.
14. The enforcement trail commences with the wife's application for oral examination issued on the 28^th March 2011 under the Family Proceedings Rules 1991.
15. Then on the 21^st April 2011 the wife issued the general application for enforcement seeking £729, 327.94 being the principle sum less the £50,000 on account but augmented by interest accruing on the remainder.
16. The general application for enforcement triggers an examination of the respondent's means. Accordingly, on the 22^nd June 2010 District judge Roberts ordered the husband to serve by 31^st August a fully completed Form E and a narrative sworn statement providing all the information and exhibiting all the documents set out in the schedule to the order. That was in preparation for an oral examination fixed for 29 September 2011.
17. The husband served the Form E before me and the sworn statement on 25 August 2011. That evidence seems to have led the wife to change course.
18. On the 23^rd September the wife requested the issue of a judgment summons under the Debtors Act 1889. The judgment summons was issued on the 27^th September for return on the 19^th October.
19. On the same day the wife issued a committal application asserting that the evidence filed on the 25^th August put the husband in breach of the order of District Judge Roberts. This application was issued on the wrong form, an error corrected by the issue of a further application on the 5^th October.
20. At this point the judgment summons eclipses the application for general enforcement taking the slot on 29^th September that had been allocated for the oral examination under the general enforcement application. The resulting order issued both the judgment summons and the committal application for hearing in November.
21. Paragraph five of the order was in these terms "the husband has permission to file and serve a statement with supporting documents in reply to the affidavit of (the wife's solicitor).
22. I pass over various listings and adjournments that intervene before the hearing before Judge Cryan. The effect of Judge Cryan's order was to kill the judgment summons and to adjourn the committal application pending compliance with comprehensive and detailed orders for further disclosure made against the husband.
23. I directed the wife's permission application to an oral hearing on notice with appeal to follow. That hearing was listed before this constitution with appeal to follow. On the 31^st January 2013, Mr Harrison appeared leading Miss Ozwell but the husband was neither present nor represented. Given the difficulties within the appeal we had little option but to adjourn for the appointment of an advocate to the court.
24. In preparing for the adjourned hearing we had the great advantage of written submissions of 15^th April from Mr Jonathan Glasson QC. I would like to express my gratitude to him for the great assistance he has given us in those written submissions and in his oral submissions at the hearing.

The appeal

25. In his skeleton Mr Glasson drew a distinction between the documents produced pursuant to the order of District Judge Roberts and the respondent's answers required by the same order. Mr Glasson's opinion was that Judge Cryan had erred in excluding the documents but, on a fine balance, had been correct in excluding the statements.
26. The order of Judge Cryan had in paragraph one excluded from evidence in support of the judgment summons all "information or documentation disclosed or produced by the husband pursuant to the order made by District Judge Roberts on 22 June 2011".
27. By his principal skeleton argument Mr Harrison states that his final submission to Judge Cryan had been that even if the answers given by the husband should be excluded the documents should not.
28. Since Judge Cryan's judgment does not record or rule on this submission I must doubt that it was advanced with any emphasis. I infer that also from the fact that after judgment was given Mr Harrison did not protest that the judge had overlooked an important submission.
29. The consequence of Mr Glasson's contribution is that during oral argument we proceeded on the basis that the appeal as to documents succeeded. We had to decide the issue between Mr Harrison and Mr Glasson on statements pursuant to the order of District Judge Roberts and practical questions as to drawing the line between exclusion and admission where, for instance, the husband had annotated bank statements with explanations of credits and debits.

The Act, the Rules and the cases

30. S. 5 of the Debtors Act 1869 provides that:-

"Subject to the provisions hereinafter 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.

Proof of the means of the person making default may be given in such manner as the court thinks just; and for the purposes of such proof the debtor and any witnesses may be summoned and examined on oath; according to the prescribed rules."

31. The scope of s.5 was curtailed by s.11 of the Administration of Justice Act 1970 which, in this field, limited its application to maintenance orders specified in Schedule 8 of the Act.
32. With the commencement of the Human Rights Act 1998 on 2 October 2000 the old procedure under which the debtor was effectively compelled to give evidence to avoid imprisonment was no longer tenable. That resulted from the decision of this court in Mubarak v Mubarak [2001] 1FLR 698. This court held that the procedure exposing the debtor to the risk of imprisonment meant that the debtor was no longer a compellable witness. The Family Proceedings Rules 1991 were then amended to curtail the debtor's risk of imprisonment. Those safeguards are now to be found in the Family Procedure Rules 2010 at Rule 33.14.
33. More or less at the same time consideration was being given to the simplification of the tangled mechanisms for the enforcement of maintenance orders. The sensible outcome was the introduction of a general application which might result in the making of one or more from a menu of five enforcement mechanisms. The judgment summons is not included in the menu which is confined to orders that do not carry the risk of penal sanction. So, on the one hand there are the non-penal enforcement orders for one or more of which a general application is issued and the judgment act summons which seeks only the imprisonment of the debtor. The protections arising under the Human Rights Act 1998 in the single penal process have no application to the menu of 5 available orders and accordingly the respondent to such an application is compellable and may be subjected to examination as to means in advance of the hearing and before the creditor elects which of the orders on the menu is being sought.
34. In this jurisdiction there have been a number of reported cases concerning enforcement under the Debtors Act 1869. As well as the criminal case of R v K to which I have already referred I have sat in the appeals of Corbett v Corbett [2003] EWCA Civ 559, Rundell v Rundell [2005] EWCA Civ 1764 and Zuk v Zuk [2012] EWCA Civ 1871. There is then the decision of this court in Karoonian v Child Maintenance and Enforcement Commission [2012] EWHC 3633 Fam and the decision of Mostyn J in Bhura v Bhura. The tenor of these cases has sought a balance between the Article 6 right of the judgment debtor not to be compelled and the legitimate search of the judgment creditor for the recovery of the debt.
35. In his skilful submissions Mr Harrison stresses that the order for disclosure was made and complied with within the general application for enforcement by a non penal remedy and remains available for reliance after the switch into Debtors Act proceedings. He emphasises that within Debtors Act proceedings there are only husband and wife each of whom has Article 6 rights. Whilst the rule makes plain that the debtor is not to be compelled to give evidence the necessary degree of protection is less obviously required than in those cases where the issue arises in proceedings brought by the state in the criminal jurisdiction where the state through its various agencies has wide powers of investigation and detection.
36. He adds that in family proceedings the summons is primarily about enforcement and not punishment. The debtor can defeat the process by paying or purging.
37. Mr Glasson, in his submissions both written and oral skilfully analyses the decisions of the European Court of Human Rights which clearly establish the right of the individual not to be exposed to the risk of self incrimination and the matching entitlement to be warned of the danger of self incrimination. In particular he refers to the classic statement of the privilege against self incrimination in the case of Saunders v UK [1997] 23 EHRR 313: the decision to like effect in O'Halloran [2008] 46 EHRR 21: and the decisions in this jurisdiction in Brown v Stott [2003] 1 AC 681 and R v K, cited above. He submits that the cumulative effect of these decisions requires the exclusion of any statements made by the judgment debtor under compulsion in any enforcement procedures under the Debtors Act. Thus it is not permissible to rely at the hearing of a judgment summons upon any statement made by the debtor in response to legitimate orders made in prior or contemporaneous proceedings resulting from a general enforcement application.

Conclusions

38. Mr Harrison candidly accepts that the strategy adopted by the wife's advisors was deliberate and not unintended in its consequences. The view taken was that an application under the Debtors Act would not succeed without subjecting the debtor to disclosure and investigation of means in order to establish that his failure to comply with the order of District Judge Walker was wilful or neglectful. That is substantiated by his application to withdraw the summons under the Debtor's Act in the light of Judge Cryan's decision on admissibility. He submits that in many cases in which the effective remedy is unclear the process of examination is essential to clarify whether there is an effective non-penal enforcement procedure or whether only the remedy of last resort under the Debtor's Act will avail the creditor.
39. Whilst I accept that there may be such cases this is certainly not one that could be said to fall into that category.
40. This is a case increasingly common in which the debtor is a mobile international entrepreneur with no assets within the jurisdiction. It was obvious that none of the five remedies open to the court on a general application would be applicable or arguably effective. The strategic prior issue
41. of the general application could not be used simply as a device to achieve only disclosure and examination for deployment in subsequently issued proceedings under the Debtor's Act.
42. I accept Mr Harrison's submission that the procedure suggested in Corbett, namely the issue by the debtor of a variation application to precede the hearing of the application under the Debtor's Act, is of less force when the only order of which the debtor is in breach are orders for the payment of a lump sum by instalments or an order for the payment of more than one lump sum. However, it is still my view that it is implicit within the order of District Judge Walker that the husband had the means to pay or the means to raise £100,000, within the 28 day period set for performance.
43. This was an order of considerable significance for the husband in that it was a full and final settlement order. On due performance he achieved dismissal of all the wife's claims. Had he been represented by experienced solicitors they would have appreciated that breach jeopardised the consideration for payment and would, or should, have applied before 22^nd November for an extension of time supported by evidence of whatever was obstructing due performance.
44. It could be said that the order anticipated default in that paragraph two provided interest at a robust rate.
45. On the other side, the wife's advisors might have reviewed the enforcement armoury and concluded that, given his mobility and absence of assets within the jurisdiction, the only effective remedy was the immediate issue of a summons under the Debtors Act. Very little evidence would have been necessary from the wife in support. If he failed to attend the hearing then he would be liable to sentence under Rule 33.14(1) (a). If he attended but declined to give evidence he would be little better off. The reality is that if he attended, although not compellable, he would have been obliged to proffer explanation and excuse.
46. With the advantage of hindsight it can be said that the alternative course pursued by the wife has proved cumbersome, protracted, expensive and unproductive. The issue of committal for total non-compliance may be effective but a committal application alleging partial non-compliance only opens the gates to argument as to whether what was provided was enough.
47. I emphasise that as well as the Form E the husband served annotated bank statements and three lever arch files containing detailed disclosure and statements. In any event, the committal application avoided the wife's major problem, namely, whether evidence obtained under compulsion in earlier issued proceedings could be adduced in evidence on the judgment summons. If what the husband had produced in orders was not admissible there was no gain in magnifying the volume of the evidence open to challenge.
48. In that vein I do not understand the scheme of the order made by Judge Cryan. If the judgment summons failed for want of admissible evidence what was the point of continuing the trial of the committal proceedings and making further orders for disclosure which would then be open to the same challenge? I cannot see how continuation of the committal proceedings would bring the wife any closer to the enforcement of the lump sum orders.
49. I have not yet referred much to the reasoning of Judge Cryan. He delivered a careful and well reasoned judgment. He concluded that the decision of this court in R v K could not be distinguished. I do not share that view. It was not a case concerned with enforcement or with a balance of the Article 6 rights of judgment creditor and judgment debtor. It raised the very different question of whether the state was entitled in prosecuting a husband for tax evasion to rely upon his evidence in prior ancillary relief proceedings. The question was whether the evidence given by the husband in the course of the financial proceedings was admissible within separate and subsequent criminal proceedings brought by the state. Here we are concerned with enforcement proceedings. It is not suggested that evidence given by the judgment debtor in proceedings prior to the order of District Judge Walker were inadmissible in the enforcement proceedings because given under compulsion nor has it ever been suggested that that evidence suggests that the husband had committed or might have committed any criminal offence. The embargo is restricted to evidence given by the debtor in the subsequent enforcement proceedings. The embargo rests upon the principle which protects the debtor from the compulsion to testify with the risk of self incrimination.
50. This point is neatly illustrated by the orders below. Before District Judge Walker on the 25^th October 2010 was the adjourned application to show cause in the furtherance of which the husband was a compellable witness. The order of District Judge Roberts of 22^nd June 2011 permissibly ordered the husband to file evidence, since before him was the wife's general application for enforcement and for oral examination. Once the wife switched into the track of judgment summons District Judge Gordon-Saker correctly avoided an order requiring the husband to file and serve a statement in reply to the affidavit in support of the judgment summons. Instead she granted the husband permission to file and serve his statement in answer to the wife's evidence by 28^th October. Thus the husband was not compelled but given an opportunity to be exercised within a defined period.
51. My final conclusion is that Judge Cryan was right to exclude the statements filed by the husband on 25^th August 2011, but wrong to exclude the documents themselves. In reaching that conclusion I accept the submissions of Mr Glasson and repeat my thanks for the assistance which he has given us. Mr Harrison's defence of the strategy adopted by the wife's advisers does not persuade me. Its product is liable to be excluded when the court considers a Debtors Act summons.

Lady Justice Rafferty:

52. I agree.

Lord Justice Kitchin:

53. I also agree.