Jardaneh v Jardaneh [2022] EWFC 20128 September 2022

Published: 21/08/2023 11:18


HHJ Evans-Gordon. Application by W, by way of judgment summons, for the committal of H to prison for failure to make payments ordered under family law orders. The application was issued pursuant to s 5 of the Debtors Act 1869. The sum claimed was £40,023 which comprised an issue fee, an LSPO of £24,000 made pursuant to s 22ZA of the MCA 1973 and two separate cost orders. The LSPO was to be paid by 4pm on 29 November 2021, as well as the costs orders being required to be paid by the same date. The issue to be determined was whether H has or has had since the date of the order the means to pay the sum in respect of which he has made default. The judge considered Prest wherein McFarlane LJ summarised the principles that are applicable to judgment summonses; [5].

Held, the judge was satisfied beyond reasonable doubt that H was ordered to pay the money claimed and he was aware of the deadline by which the sums had to be paid. The judge considered bank statements that H had voluntarily provided to W as part of an open offer to settle the proceedings prior to the issue of judgment summons. H was under no compulsion to provide evidence, and the judge stated that it had been wrong to direct that H provide documentary evidence as that was contrary to principles set out in Prest and in other cases. The bank statements showed that H had over the sums claimed on the date on which payment was due. The judge was therefore satisfied beyond reasonable doubt that H had money available to him on the relevant date. The LSPO orders fell within the provisions of the Debtors Act 1869 and Administration of Justice Act 1970 as they were made pursuant to s 22ZA of the 1973 Act, which is within Part II.

Regarding whether the cost orders could properly be the basis of judgment summonses, reference was made to Migliaccio wherein Mostyn J was satisfied that he could make payment of costs a condition of suspending any suspended prison sentence. The question of the appropriate sentence was adjourned to allow H a further opportunity to obtain independent legal advice. H was later sentenced to 21 days in prison suspended on terms that he paid £36,460.46 to H by 4pm on 30 September 2023.

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