Quan v Bray [2019] EWFC 46 Family Court, 23 July 2019, Holman J

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The couple had been engaged in very protracted divorce proceedings. In December 2018, a financial order had been made by a High Court judge, requiring the husband to make certain payments to the wife. To date, the husband had paid nothing and currently owed £38,665,

In June 2019, the wife had applied for ‘such method of enforcement as the court may consider appropriate’. The husband was required to attend the enforcement hearing in person, but failed to do so. He did provide the wife’s solicitors with a mobile phone number and the judge arranged for the number to be called. The husband revealed that he was in the USA, staying with family members, having travelled there from Bangkok in the previous 4 days. The judge permitted the husband to participate by telephone. In the course of the hearing, the wife’s advisers accepted that no means of enforcement were effectively or realistically open to her; the wife therefore no longer sought to proceed with her application. Instead, the wife and her advisers were contemplating issuing a judgment summons for the committal of the husband to prison for up to the statutory maximum of 6 weeks for non-payment of the amounts ordered. The wife had not yet issued the judgment summons but suggested, in complete good faith, that if she were to undertake today that she would do so tomorrow, the court should, in anticipation of that, make various directions, including directions as to the method of service of the judgment summons.

The solicitors’ statement of costs showed that the solicitors had incurred a billed amount of £13,801 of their own fees, costs and disbursements, plus an additional £1,750 on counsel’s fees.

The High Court judge stayed the wife’s application and made a costs order, requiring the husband to pay £4,650 in respect of the wife’s costs, not to be enforced without leave.

There could be no attachment of earnings order as there was no evidence that the husband was in receipt of any regular income from an employer in England and Wales to which such an order could attach. There was no clear evidence of any significant third-party debt against which a third-party debt order could be made. There was apparently a possible payment of £20,000 due to the husband but the prospect of enforcing against that particular sum was likely to be disproportionately expensive and protracted. There was no evidence of any property in England and Wales against which a charging order or other orders could be made. There was no evidence of any assets or personal property in England and Wales against which a writ or warrant of execution could be made, and there seemed little utility in the appointment of a receiver.

Arguably the court should dismiss the wife’s application entirely, but it was willing, in the particular circumstances of this case, to stay it generally, but with the added provision that it could not be restored without the permission of a judge. Clearly this wife had faced a Titanic struggle to obtain any financial provision from her former husband, she had paid a fee to issue the current application, and the least the court could do was spare her another fee if ever it should later become appropriate to revive that application and seek some substantive order upon it.

A judgment summons required to be proved to the criminal standard, namely so that the court was sure. As well as proving the arrears, the wife would have to prove that, as at the date of the hearing of the judgment summons, the husband had, or had had the means to pay all or, at any rate, part of the amounts in arrears. The court was not prepared to make directions relating to a judgment summons. The judgment summons procedure was quasi-criminal, having as its objective the imprisonment of the debtor. It had to be proved to the criminal standard. It was very well-established that all the procedural steps specified by the Debtors Act 1869 and the rules of court must be strictly followed, and there could be no short cuts. It was entirely a matter for the wife to decide whether she wished to proceed by way of a judgment summons, and whether, in relation to arrears of £38,000-odd, she considered that the inevitable costs that she would then incur were cost-proportionate. If she decided to proceed in that way then she must strictly and accurately follow all the prescribed rules, both as to the form and content of the judgment summons itself, and the required supporting evidence, and as to service. If ever there came a time when it might be open to her to seek some order as to alternative methods of service, she must seek that on proper evidence within the four corners of her judgment summons, once issued.

The court would permit today’s order to be served by alternative service upon the respondent husband by email to the email address with which he regularly communicated with the wife’s solicitors, Vardags, and from which he had sent a long email to them today. This order (which was not an order on an application for a judgment summons) could be served in that way, not least because the husband had participated throughout this hearing by telephone.

In relation to costs, the brief fee of £1,750 to counsel did not seem to be excessive, given that he had come in, almost for the first time, to a complex case with a long history with which he had had to familiarise himself and upon which he had obviously done considerable work in advance of, as well as during, today. The court would allow counsel’s fee of £1,750 in full.

So far as the solicitors’ own expenditure was concerned, they had allowed themselves to run up expenditure before VAT of £13,801 gross, in relation to enforcement of an amount stated, at the time the application was issued, to be about £32,000 exclusive of interest. Incurring costs of over 40% of the actual arrears in issue at the time the application was issued was the kind of profligate legal expenditure which discredited the practice of family law and was out of all proportion. It was simply not proportionate to incur these sorts of costs on behalf of a client, who claimed herself to be penniless, in pursuit of the amount of arrears as they had been at the date of issue. The court would treat the assessable, reasonable costs of the solicitors of and incidental to this application as £6,000 rather than the £13,801 claimed.

Taking both counsel’s and solicitors fees together, plus VAT, the reasonable costs of and incidental to this application, were not £18,711, but £9,300 inclusive of VAT.

The husband should be ordered to pay part of those costs. As recently as last December a High Court judge had concluded that the husband had the means to make maintenance payments in the sum ordered. Between then and now the husband had not paid a single penny. In other words, he had not made the slightest attempt to show some obedience to, or compliance with, the order. In the light of the December judgment, it seemed probable that the husband could certainly have made some attempt to obey, and make payments in obedience to the order. Further, if the husband had attended the hearing, he could have been examined on his oath as to his means. That might, of course, have yielded at any rate some help to the wife in her quest for payment. The court found it very unconvincing that 4 days ago the husband had been able to travel from Bangkok via Japan and Los Angeles to Colorado, but had not been able to travel to London and prioritise appearing before this court, which he knew very well he must respect.

For those two reasons, the husband must pay some costs of and incidental to this application. On the other hand, although the application might have yielded to the wife the prospect of some help from evidence given by the husband on oath in oral examination if he had attended, it was unlikely that there would ever have been an attachment of earnings order, a third-party debt order, a charging order, a writ or warrant of execution, or the appointment of a receiver. So the wife had issued an application which did not seem ever to have been a promising one, and which, in the end, had been stayed.

Balancing these competing considerations, the husband was to pay one-half of the fair and reasonable costs of the wife of and incidental to this application, i.e. £4,650, not to be enforced without the leave of a judge.