Enforcement tips and tricks – part two

In part one of this blog post I considered early planning, the range of enforcement remedies available and whether joinder of a party would be appropriate. In this concluding part I will look at the following potential enforcement solutions:

• Hadkinson relief
• orders subject to conditions
• declarations of beneficial interest
• an order for lump sum(s) and in default an order for sale
• drafting maintenance orders
• payment on account of costs
• interest
• a general application for enforcement; and
• committal by way of a judgment summons

Hadkinson relief

A party in persistent breach of a court order eg for disclosure, or the payment of maintenance pending suit, may be barred from participating in the proceedings if they are shown to be deliberately, voluntarily and knowingly in contempt and the contempt is an impediment to the course of justice.

This is an unusual remedy: the more outrageous and sustained the breach, the more likely that the court will impose this draconian form of relief (M v M [2011] All ER (D) 90 (Feb)).  Once barred from participating, the court may be able to be persuaded to draw adverse inferences against the excluded party (see Prest v Petrodel Resources [2013] All ER (D) 90 (Jun) as to the court’s ability to draw adverse inferences).

Orders subject to conditions

Under the case management powers set out in the Family Procedure Rules 2010 (FPR 2010), 4.14 the court may make an order subject to conditions and specify the consequences of failure to comply with the order/conditions within a specified time frame.  Practitioners may need to be inventive when considering conditions - they can be directed at encouraging compliance with the order or to make enforcement easier. Potential examples are an order for disclosure that sets out the adverse inferences the court will be asked to make in the event that disclosure is not provided, or an order that is subject to costs consequences in the event of default.

While the court will retain its discretion to deal with issues substantively at the next hearing, the addition of conditions to the order may set up your client's case for the next stage and make it easier to persuade the court at that hearing to grant the relief sought.

Declarations of beneficial interest

If an order provides for the transfer or sale of a property abroad, consider asking the court to make declarations of beneficial ownership in relation to any properties subject to the order for transfer/sale and to record the same on the face of the order.  This may make it easier to persuade the court in the country in which the property is located to enforce the order made in this jurisdiction.  To make such declarations, the court will need to be able to make findings of fact in respect of the ownership of the property(s) in question based on the available evidence, properly pleaded (or through drawing adverse inferences).

Order for lump sum(s), in default order for sale

When dealing with an order for lump sum(s), consider including an order for sale of specified property (particularly if in the jurisdiction) in the event of default on the lump sum - this will provide an automatic mechanism for enforcement of the lump sum without requiring the parties to return to court.

Drafting maintenance orders

If an order includes provision (by way of lump sum, periodical payments or costs orders) to meet a party’s needs, consider setting this out on the face of the order.  This may assist with enforcement under the EU Maintenance Regulation and an application for committal by way of judgment summons (see below).  Note that the permission of the court is required to enforce arrears of maintenance more than twelve months old (Matrimonial Causes Act 1973, s 32).

Payment on account of costs

If an order includes an order for costs consider seeking provision in the order for the payor to make a payment on account of costs, with credit to be given for the sum paid following the detailed costs assessment.  If the payor fails to make the payment on account, the payee can ask the court to refuse any application for appeal made by the payor pending payment of the sum due on account.

Interest

Interest applies to sums due under a court order (save for periodical payments orders made in the county court, which can be transferred to the High Court and once transferred, interest will automatically accrue) and is payable from the date of the order at the judgment debt rate, currently 8% per annum.  For the sake of emphasis (and to assist enforcement abroad) you may want to set out on the face of the order that in the event of late payment interest will run at the judgment debt rate of 8% per annum or such other rate as directed.

General application for enforcement

Under FPR 2010, 33.3(2) the enforcing party can apply for a specific method of enforcement or ‘for such method of enforcement as the court may consider appropriate’.  Under the latter, the court may make an order (with penal notice attached) requiring the payor to:

• attend court
• produce any documents required by the order; and
• answer questions on oath as to their means

The documentation and information can then be used to show the payor’s failure to comply with the original order despite their ability to do so.  This may be a useful aid to enforcement, particularly if a period of time has elapsed since the original order was made and the payee does not have up-to-date information as to the payor’s means.  Following examination of the payor, the court can make any of the orders listed in this schedule.  The payor may be subject to penal sanctions if they fail to attend, produce the documents required or answer the questions put to them.  However, any information (as opposed to documentation) obtained will not be admissible in later enforcement proceedings where committal is sought or is within the court’s power as it is obtained by compulsion (see committal by way of judgment summons below).

In Thursfield v Thursfield [2013] All ER (D) 186 (Jun) the Court of Appeal upheld a decision committing a husband to prison for 24 months for failure to provide disclosure in enforcement proceedings.  The husband, who is based in the US, will risk arrest if he sets foot in England – a high price to pay if a client has children, property or business interests in this jurisdiction.

Committal by way of judgment summons

Orders for maintenance (to include lump sum(s) and costs) can be enforced by an application for committal by way of judgment summons.  This most draconian of remedies is subject to strict legal and procedural requirements (set out succinctly by Mostyn J in Bhura v Bhura [2012] All ER (D) 151 (Dec)).  It is a remedy of last resort and the court will need to be satisfied that no other form of relief is appropriate and that committal (or a suspended sentence) is a reasonable and proportionate sanction (see Karoonian v CMEC; Gibson v CMEC [2012] 3 FCR 491: concerned with committal under the Child Support Act 1991 although similar principles are likely to apply generally).  Failure to comply with the procedural safeguards is likely to make committal inappropriate, irrespective of the merits of the payee’s case (see Zuk v Zuk [2012] All ER (D) 357 (Nov)).

The payee must prove beyond reasonable doubt that the payor has or has had the means to pay and has neglected/refused to pay.  As these are quasi-criminal proceedings, the payor cannot be compelled to give evidence.  An application to obtain information from the payor to aid committal should therefore be limited to requests for documentation (although the payor can be invited, rather than compelled, to file a statement in response to the payee’s case) (Mohan v Mohan [2013] All ER (D) 273 (May)).  On hearing the judgment summons, the court may decide to vary the lump sum, costs or periodical payments order, even without an application by the payor (FPR 2010, 33.16).  If the payor makes an application for variation, the court may order an adjournment pending hearing of the variation application (Corbett v Corbett [2003] All ER (D) 419 (Feb)).

Committal hearings are heard in public.  This may be useful leverage if the payor is in the public eye or likely to be concerned about their reputation.

Sophie Chapman is a solicitor at Withers LLP 

Twitter: @WithersFamLaw