Committals in financial remedies  – a remedy of last resort?

Hale LJ opined in Hale v Tanner, that applications for committal within a family law context raise unique considerations (for example, children).[1] The procedure is complex and must be followed meticulously as the application will fail if it is not. This is because the consequences of the application succeeding are serious – a person’s liberty is at stake.

This article, written by pupil barrister Lillian Garnier who will be “on her feet” from 1 April 2025, she seeks to address the thorny questions of when is the correct time to instigate committal proceedings? What is the correct application to make? What test might apply? The context being in the aftermath of the decisions in Dickason v Dickason and Brown v Brown, in which orders for committal (suspended or otherwise) were granted.

Preliminary considerations

An application for committal can be either: 1) a stand-alone application for contempt of court; or 2) by way of judgment summons. The distinguishing factor is the subject matter of the dispute:

• A sum of money which has fallen due? An application for judgment summons is appropriate.
• Any other breach or contempt? Pursue a general application for committal.

Committal for Contempt

General committal applications are made pursuant to Part 37 of the FPR.

An application for committal can be made by any party in whose favour the injunctive order was granted or undertaking was given (r37.3 FPR). The Part 18 procedure is to be followed, requiring an application by Form FC600 which is supported by written evidence. Such supporting evidence must include information addressing all the factors set out at r37.4(a) – (s) of the FPR (including, the nature of the breach, a factual summary and confirmation of personal service). This must be set out accurately and in detail.

One important distinction between a general application for committal and one for committal by way of judgment summons is the requirement that, in respect of the general application, the original order should contain a penal notice. This is a mandatory requirement (r37.4(e) FPR). Despite this, should the original order not include one, the applicant can apply for one to be added. This has been confirmed in the reports of the Financial Remedies Group (2014) and more recently by Mostyn J in Ahmed v Khan.[2]

The Hearing

The hearing itself is heard publicly and  separate to any other application in the case.[3] Though a party can request the hearing be heard in private, the court maintains a wide discretion and exceptional circumstances will need to be established to warrant departure from the general rule.[4] On considering such an application, weight will be attributed to the factors set out at r37.8(2)(a)-(g) of the FPR (for example matters of national security, confidential financial information, and the protection of a child or protected party). Tactically, however, the prospect of a public hearing could serve as a helpful pressure point on an unwilling, obstructive respondent/defendant, encourage settlement, and thus be beneficial to the applicant from a costs perspective.

Importantly, though still jurisdictionally heard by the Family Court, the criminal standard of proof applies given the potential penal consequences.[5] Therefore, any facts established in previous financial remedy (or other family proceedings) will need to meet this higher standard if they are to be used for the purposes of committal. Additionally, non-means, non-merits Legal Aid is likely to be available to the defendant.[6]

When making a committal application the FPR must be strictly complied with. Personal service of the application is almost always required as the defendant is unlikely to have secured (or known to have needed to secure) legal representation at this point (r37.5). As per Mostyn J in Re H in which an application for committal was dismissed owing to fatal errors to follow procedural requirements, ‘it is hard to envisage any circumstances where the terms of FPR Part 37 are waived’.[7] Therefore, compliance is essential.

The guidance set out by the Court of Appeal in Nicholls as regards a court’s approach to dealing with a general application for committal under Part 37 bears repeating:[8]

1. As committal orders involve the liberty of the subject it is particularly important that the relevant rules are duly complied with. It remains the responsibility of the judge when signing the committal order to ensure that it is properly drawn and that it adequately particularises the breaches which have been proved and for which the sentence has been imposed.
2. As long as the contemnor had a fair trial and the order has been made on valid grounds the existence of a defect either in the application to commit or in the committal order served will not result in the order being set aside except insofar as the interests of justice require this to be done.
3. Interests of justice will not require an order to be set aside where there is no prejudice caused as a result of errors in the application to commit or in the order to commit. When necessary the order can be amended.
4. When considering whether to set aside the order, the Court should have regard to the interests of any other party and the need to uphold the reputation of the justice system.
5. If there has been a procedural irregularity or some other defect in the conduct of the proceedings which has occasioned injustice, the court will consider exercising its power to order a new trial unless there are circumstances which indicate that it would not be just to do so.

Emphasis should be given to point 2 above which highlights that errors within an application will not necessarily require an order be set aside. This is important as the defendant can apply under Part 18 to discharge the order made. Though waivers can be made, the court exercises a discretionary jurisdiction when deciding an application and may set it (or an order) aside if it considers it necessary to do so in the interests of justice.[9] This, again, reinforces the importance of ensuring the initial application is both procedurally and factually sound.  

The Court’s Powers

Pursuant to s14 of the Contempt of Court Act 1981, where a person has committed contempt of court and committal is appropriate, the maximum term of imprisonment which can be ordered is 2 years. Notwithstanding this, the Family Court’s powers on committal should be distinguished from those of the Criminal Courts.

The Family Court’s power to sentence a defendant for breach of an order is regulated by The Family Court (Contempt of Court) (Powers) Regulations 2014 and can be summarised as follows:

The case of Hale v Tanner sets out guidelines on sentencing in the family courts, from which a number of points can be inferred (see paragraphs 25-35 of that Judgment here). The main take-aways for the purposes of this article are:

1. If imprisonment is appropriate, the length of committal should be decided without reference to whether it ought to be suspended.
2. The length of committal is to depend upon two objectives:
   – To mark the court’s disapproval of the disobedience to its order; and
   – To secure compliance with the order in the future.
3. The length of committal has to bear some reasonable relationship to the maximum of two years which is available.
4. Suspension is possible in a much wider range of circumstances than it is in criminal cases. It does not have to be exceptional and can often be used to secure compliance with the order.

In Brown, W’s contempt application was based on H’s failure to file a Form E and provide a CETV for his pension.  Following H’s failure to purge his contempt and lack of attendance at court hearings, DJ Dodsworth issued a bench warrant to secure H’s attendance at the adjourned hearing. Therefore, when faced with an unwilling, contumacious defendant, there are mechanisms available to the court to overcome this and achieve compliance.[11] 

Judgment Summons

An application for judgment summons under s5 of the Debtors Act 1869 (‘DA 1869’) can secure payment of an outstanding debt. An undertaking to pay a debt is equally enforceable by way of judgment summons. However, a distinction must be drawn between those breaches which constitute a failure to honour an obligation made to the court and those which are simply a failure to pay an ordinary debt owing. The former can be enforced by way of the Part 37 procedure which is not subject to the same restrictions as those imposed by the DA 1869. 

As set out above, an application for judgment summons is made in respect of a debt owed. Section 28 and Schedule 8 of the Administration of Justice Act 1970 (‘AJA 1970’) provides that, in respect of the Matrimonial Causes Act 1973 (‘MCA 1973’), orders falling under Part II qualify, in addition to an undertaking made in that regard (as set out above).

The broad interpretation of what constitutes a ‘maintenance order’ has been considered and interpreted by the courts to also include Legal Services Payment Orders and orders for payment of school fees, including an undertaking to pay the same.[12] Though considered within an academic context, in Migliaccio Mostyn J opined that costs orders are also theoretically directly enforceable by way of application under s5 DA 1989 and can be included as a term of any suspended sentence.[13]

Procedure

The procedure relating to an application for judgment summons differs from a general application for committal. Firstly, it is governed by Part 33 of the FPR. The key points to note are:

• There cannot be shortcuts and all procedural requirements must be strictly followed. Service (whether personal or postal) is essential.
• Any application for judgment summons must be considered by a judge of the same level who made the original order. [14]
• On an adjourned hearing due to the debtor previously failing to attend, the debtor cannot be committed to prison unless the creditor offered to pay their reasonable travel expenses to the hearing (r33.14A; Brady v Jackson).[15] Should the debtor attend, such ‘conduct money’ is not recoverable by the claimant.[16]
• Criminal standard of proof is applicable.
• The inclusion of a penal notice on the original order is not a mandatory element as regards judgment summonses (Olu-Williams v Olu-Williams).[17]

The Test

The test is a stringent one and involves the creditor proving beyond reasonable doubt that the debtor has or had the means to pay the debt and has refused or neglected to do so (r33.14(1); s.5(2) DA 1869).

Given the criminal threshold required, any findings which were relied upon as to the debtor’s financial resources within the original proceedings will not suffice, unless and to the extent they exceed the civil standard upon which they were established.[18] A debtor’s ‘means’ does not solely relate to their earning capacity, The court determined in  the case of Rogan v Rogan (a case where there was significant reliance by the debtor on commercial lenders such as American Express) that the debtors ability to borrow money was relevant.[19]

A further issue and one outside the scope of this article (but worth consideration) is a situation where the creditor fails to establish the test to the required threshold. In such a scenario, alternative remedies include enforcement by way of an Attachment of Earnings Order and an order under r33.16 for a ‘means of payment order’. The civil standard applies to both and an order under r33.16 can be made in substitution of, or together with, an order for committal.

The Court’s Powers

In contrast to the court’s sentencing powers under a general application for committal, in the case of judgment summonses, the maximum term of imprisonment is only that of 6 weeks under s5 DA 1869. Furthermore, the likelihood of the court imposing such a sentence, without first providing the debtor an opportunity to pay within a specified period, is low. This is clear from Dickason whereby, notwithstanding the adverse inferences drawn from H’s consistent non-engagement and evasion of the court process, a suspended order was made to provide H the opportunity to remedy his wrong.[20] Accordingly, when advising clients who are actively pursuing committal it is important to emphasise: 1) the real possibility that a suspended sentence is likely; 2) a further application for imprisonment will most likely be required; and 3) the cost implications if the defendant has no means to pay.  

Concluding thoughts

In conclusion it is clear from the case law and guidance that there is a delicate balancing exercise between the courts approach to enforcement in the face of a party’s failure to comply with a court order, the punitive nature of the committal remedy, and the defendant’s potential deprivation of liberty.

The Family courts approach – as compared with the Civil jurisdiction – is the focus on the family and the direct impact any punitive order for committal would have. This is even more pertinent when there are dependent children who are relevant to the financial landscape of the family as a whole. As such, the imposition of a term of imprisonment, the subsequent impact that would have on a parent’s earning capacity, and perhaps most importantly, their role as a parent, are difficult factors that the court will consider. Due to the high procedural hurdles which must be overcome on both a general application for committal and one by way of judgment summons, they are risk-laden applications which inevitably come at a financial (and emotional) cost. As such, it comes as no surprise they are often considered a remedy of last resort.

Whilst every effort has been taken to ensure that the law in this article is correct, it is intended to give a general overview of the law for educational purposes. Readers are respectfully reminded that it is not intended to be a substitute for specific legal advice and should not be relied upon for this purpose. Please also note that this article represents the opinion of the author and does not necessarily reflect the view of any other member of chambers.

[1] Hale v Tanner [2000] EWCA Civ 5570, [25].

[2] Ahmed v Khan [2022] EWHC 1748 (Fam), [83].

[3] Hammerton v Hamemrton (No.1) [2007] EWCA Civ 248.

[4] FPR 37.8(1).

[5] Cambra v Jones [2014] EWHC 2264 (Fam).

[6] O (Committal: Legal Representation) [2019] EWCA Civ 1721.

[7] Re H [2018] EWHC 3761 (Fam) [9].

[8] Nicholls v Nicholls [1996] EWCA Civ 1271.

[9] Practice Direction 37A.2(2); The Mayors and Burgesses of The London Borough of Hillingdon v Vijayatunga [2007] EWCA Civ 730, [22].

[10] The Family Court (Contempt of Court) (Powers) Regulations 2014, ss.3-5.

[11] ibid [1].

[12] Barclay v Barclay [2022] EWHC 2026; L v L (school fees: maintenance: enforcement) [1997] 2 FLR 252, CA; Symmons v Symmons [1993] 1 FLR 317.

[13] ibid [10].

[14] The Family Court (Composition and Distribution of Business) Rules 2014, s17(5).

[15] Brady v Jackson [2022] EWCA Civ 1301 [9].  

[16] Migliaccio v Migliaccio [2016] EWHC 1055 (Fam).

[17] Olu-Williams v Olu-Williams [2018] EWHC 2464 (Fam), [7].

[18] Young v Young [2014] 2 FLR 786.

[19] Rogan v Rogan [2018] EWHC 2512 (Fam), [14]. 

[20]  ibid [1].