HHJ Sweeney. H was a serial ‘non-attender’. In December 2021, H failed to attend the final hearing listed in the financial remedies proceedings. H had failed to comply with any directions made in advance of the hearing. A few days before the listing, H (via an email sent by his partner) made an application to adjourn. That application was refused, adverse inferences were drawn, and final orders were made in H’s absence. Of particular relevance was that the court found H to have an income of £154,000 per annum and consequently made an order that H make periodical payments to W of £1,500 pcm.

Subsequently, H failed to attend or substantively engage with any hearings listed to deal with the enforcement or the implementation of the final order.

In February 2022, H’s failure to sign documents required for the sale of the FMH demanded W make a further application. H did not attend the hearing that was listed to deal with that application.

In January 2023, W made an application for enforcement due to H’s non-payment of spousal maintenance. H had advised that he would not be attending the hearing listed to deal with that application. In May 2023 H ceased maintenance payments altogether. In July 2023, W made a second application for enforcement. In January 2024, W applied for H’s committal.

Thereafter, a series of at least four hearings were listed. H failed to attend each hearing. Shortly before each hearing was to take place an email was sent to the court (by H or his partner) setting out the reasons that were said to explain H’s absence.

Against that backdrop, the matter was restored to court on 27 August 2024. H again failed to attend. An email was sent to the court suggesting that H had been taken to hospital that morning. That email, predictably, requested that the matter be adjourned.

The court proceeded in H’s absence. The court was satisfied that the history of H’s non-attendance made it ‘abundantly clear’ that if the matter were adjourned again, H would simply not attend the re-listed hearing and ‘there would always be another excuse, another reason for his [H’s] non-attendance’.

To adjourn, then, would be a waste of court resources and contrary to the overriding objective. To accede to the adjournment would be akin to the court ‘throwing its hands in the air and giving up’ in the knowledge that H will not attend any re-listed hearing and the court had, in effect, allowed H to evade the court process.

Instead, the application would proceed, and H could apply to set aside the court’s order in the normal way. Any application to set aside would demand H’s attendance. Neatly, if H’s set-aside application was successful, the court would then continue to hear the substantive application with H present.

The court dealt with W’s committal application swiftly. The court was satisfied beyond reasonable doubt that:

1. H was required to pay a sum to W under the final order made in December 2021, in the form of periodical payments of £1,500 pcm, which was enforceable by judgment summons;
2. H had failed to make periodical payments since April 2023 and, therefore, had defaulted in his obligations under the order and remained in default of those obligations; and
3. H had the means to make the periodical payments due under the order, based on the court’s findings that H had an income of £154,000 per annum at the time of the final order.

The court did not need to consider whether once a case to answer was established an evidential burden passed to the debtor to provide evidence that they did not have the means to pay. The issue was sidestepped as, in the circumstances, it was appropriate to draw adverse inference as to H’s ability to pay.

The court made an order for H’s suspended committal for a period of 14 days, suspended on the condition that H paid the outstanding amounts due to W (£24,163) on or before 24 September 2024.