Judgment summons
Insight

A judgment summons is an application by a creditor under s 5 of the Debtors Act 1869 requiring the debtor to attend court in circumstances where payment is due under an outstanding debt. If the creditor can prove to the satisfaction of the court, beyond reasonable doubt, that (a) the debtor either has or has had since the date of the original order or judgment the means to pay the sum owing under the original order or judgment and (b) has refused or neglected to pay, or refuses or neglects to pay, the debtor may be committed to prison for a period of up to six weeks or until payment of the sum which is owing.
Orders that can be enforced by judgment summons
The power of committal under s 5 of the Debtors Act is restricted to certain orders by s 11 of the Administration of Justice Act 1970 (AJA 1970). Only debts arising under a “maintenance order” can be enforced. However, “maintenance order” is given a wide meaning (see Sch 8 to the AJA 1970) and includes not only periodical payment orders, but also lump sum orders. This wide interpretation has been held by judges to include school fees orders (L v L (payment of school fees) [1997] 2 FLR 252), undertakings equivalent to maintenance orders (Symmons v Symmons [1993] 1 FLR 317), and legal services payment orders (Barclay v Barclay [2022] EWHC 2026 (Fam). The provisions are also available in relation to costs orders (see FPR, r, r 33.16).
Akin to criminal proceedings
A judgment summons is akin to criminal proceedings (see Mubarak v Mubarak [2001] 1 FLR 698) and the criminal standard of proof, of “beyond all reasonable doubt”, applies.
A respondent cannot be required to give evidence (FPR, r 33.14(4)) and must be informed of their right to remain silent. For this reason a judgment summons application must not be listed to be heard together with another application, such as a variation application, as this would effectively deprive the debtor of his right to silence.
An unrepresented respondent must be informed of their right to legal aid, which is available in relation to judgment summons, and be given the opportunity to obtain representation.
Procedure
The procedure is set out in Part 33 of the Family Procedure Rules, specifically rr 33.9–33.17.
If the original order was made in the High Court, the application for judgment summons may be made at the Principal Registry, a district registry or the family court. If the original order was made by the family court the application may be made to whichever Designated Family Judge area is the most convenient. Only a judge of the same level or higher than the judge who made the original order can make a committal order at the hearing and so it will usually be allocated to the same level of judge. (The Family Court (Composition and Distribution of Business) Rules 2014, r 17).
The application must be completed in Form D62 and must be accompanied by a statement, verified by a statement of truth, that sets out the amount due under the order and how that amount is calculated. The statement must include all the evidence on which the creditor wishes to rely, including written statements of witnesses on whose oral evidence it is intended to rely, and must also exhibit a copy of the order being enforced.
The judgment summons must be served on the debtor not less than 14 days before the date of the hearing (FPR, r 31.11(3)). Unless specifically directed, the applicant has a choice whether to serve personally or to request that the court serve by way of first-class post. However, if the creditor opts for postal service, the debtor cannot be committed on the judgment summons in his absence, and therefore personal service is preferable. If the debtor does not attend the first hearing, and the hearing is adjourned, notice of the adjourned hearing must be personally served (r 33.13).
Pursuant to FPR, r 33.14A, the debtor cannot be committed to prison unless the creditor offered to pay their travel expenses to the hearing, and therefore it may be sensible to offer to pay these at the time of service. However, in the case of Brady v Jackson [2022] EWCA Civ 1301, it was found that FPR, r 33.14A does not apply to the hearing of a judgment summons but only to an adjourned hearing where a debtor had failed to attend the original hearing. The debtor can therefore only be committed for failing to attend the adjourned hearing if travelling expenses have been offered.
The hearing will usually take place in public.
Means and refusal to pay
The creditor must satisfy the judge that the debtor has or has had the means to pay and neglects or refuses (or has neglected or refused) to pay.
The evidence must therefore show that the debtor has or had the means to pay since the date of the original order. The judge's findings at a contested hearing alone will not provide sufficient evidence of this, as they will have been made on the balance of probability and the requisite standard of proof of the debtor's means is the criminal standard, ie beyond reasonable doubt. The debtor's means do not include “earning capacity” (Constantinides v Constantinides [2013] EWHC 3688 (Fam), [2014] 2 FLR 736).
Possible outcomes
Pursuant to FPR, r 33.16, the following orders can be made at the hearing of an application for judgment summons.
A new order: Pursuant to FPR, r 33.16(1) the court can make a new order for the payment due under the original order, together with the costs of the judgment summons, either at a specified time or by instalments. This therefore gives the debtor more time to pay the arrears. In the case of orders for periodical payments, it is available only if the judge believes that an application to vary or suspend would have succeeded and gives the parties time for such an application to be made and for the question then to be considered whether some or all of the arrears should be remitted.
An order of committal: Pursuant to FPR, r 33.16(2) the court can make an order for committal or a suspended order for committal. The court can only commit for up to six weeks in accordance with s 5 of the Debtors Act 1869. In reality, a suspended sentence is more likely. Serving a term of imprisonment does not discharge the debt. The aim of the remedy is to compel the debtor to pay, and in reality serving a term of imprisonment may harm the debtor's ability to pay. A suspended sentence may therefore be more effective. The court can suspend the order on the basis that the debtor pays the amount due plus costs and any additional sums due either at a specified time or by instalments.
An attachment of earnings order: As an alternative to a committal order the court may make an attachment of earnings order (Attachment of Earnings Act 1971, s 3(4)). For this purpose, proof of the debtor's means to the civil standard only would be needed.
Judgment summons is unquestionably a useful tool for practitioners to use when enforcing financial remedy orders. However, to be effective, it is important to get follow the correct procedure right, and to be realistic about the likely outcome.
Please note this content was originally published in the Family Law Journal. June 2024 edition, best practice section.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, July 2024