In financial remedy proceedings, two primary forms of committal applications are prominent:
1) Judgment summonses for non-payment of a monetary obligation, and 2) standard committal applications for other breaches.
Governed by Family Procedure Rules (FPR) Part 37, it’s recommended, due to the ambiguous nature of FPR 33.5, that judgment summonses be managed in a manner that complies with Part 37 requirements.
Judicial Hierarchy in Issuing Committal Orders:
Judges of any level can issue committal orders. However, when related to a breach of a previous order or undertaking, such orders should be issued by a judge at the same or a higher level than the one who made the initial order or accepted the undertaking. This aligns with the principles established in the case of Harris v Harris, Attorney-General Intervening [2001] 2 FLR 895, emphasising the importance of hierarchical consistency in judicial decision-making.
Enforcement of Undertakings
Breaching an undertaking can lead to enforcement actions similar to the breach of an order. This was exemplified in Re L (Enforcement of Undertaking) [2006] 2 FLR 547, which highlighted that understanding the terms and consequences of the undertaking is essential. Although the specific wording for such an undertaking is absent in FPR Part 37 and Practice Direction 37A, it remains included in FPR Part 33 and Practice Direction 33A, suggesting its continued relevance and usage.
Requirement of Penal Notice:
A committal order necessitates the presence of a penal notice in the breached order. The case of Re D (Minors) (Committal Order) [1993] 2 FLR 279 underlines the critical need for a clear and prominent penal notice as a prerequisite for a committal order due to a breach.
Committal Applications: Procedural Requirements
Filing and Evidence: In line with the FPR Part 18 procedure, applications require support by affidavit or affirmation evidence, as noted in C v C (Contempt: Committal) [2012] 2 FLR 1039.
Application Essentials: Applications must comprehensively detail the alleged contempt, including order details, service confirmations, and a chronological contempt summary.
Personal Service Necessity: Unless legally represented, personal service of the application on the defendant is typically required, as demonstrated in M v M (Committal: Service) [2008] 1 FLR 251.
Judgment Summonses and Key Cases
Non-Payment Enforcement: Failure to pay a judgment debt can lead to imprisonment, as seen in the significant case of Mubarak v Mubarik [2001] 1 FLR 698. The case emphasises the need to establish, to a criminal standard, the debtor’s ability and neglect to pay.
Evidence and Proof Standards: The case of M v M (Committal: Proof) [2009] 2 FLR 142 illustrates that evidence in financial remedy applications, though based on balance probabilities, does not suffice for establishing default to the criminal standard.
Procedural Checklist:
The case of Andreewitch v Moutreuil [2020] EWCA Civ 382 provides a procedural checklist for courts, highlighting the importance of clarity in the contempt foundation, service and documentation, legal representation opportunities, and adhering to the criminal standard of proof.
Legal Aid Accessibility
In cases where imprisonment is a potential outcome, the entitlement to legal aid, regardless of financial means or merits, is emphasised by Re T (Committal: Legal Representation) [2013] 1 FLR 133, ensuring fair access to justice.
This comprehensive analysis, anchored in specific case law and FPR guidelines, is crucial for practitioners in financial remedies proceedings involving committal applications and judgment summons.