It may be thought that the possibility of imprisonment for failure to pay a debt was consigned to history long ago. But that is not quite true.
While relatively rare, it is possible for the court to imprison a person for failure to pay a sum ordered by the court.
The procedure involved is known as a ‘judgment summons’. It enables the court to “commit to prison for a term not exceeding six weeks, or until payment of the sum due, any person who makes default in payment of any debt or instalment of any debt due from him in pursuance of any order or judgment of that or any other competent court.”
The court can only commit the debtor to prison if it is satisfied beyond reasonable doubt that they either have or have had since the date of the order or judgment the means to pay the sum due, and has refused or neglected, or refuses or neglects, to pay it.
The procedure was demonstrated in a recent case in the Central Family Court.
The case concerned a financial remedy application within divorce proceedings.
In connection with the application the court had made various orders for the husband to make payments to the wife in relation to her costs, the payments to be made by the 29th of November 2021.
The husband failed to make the payments by that date and the wife therefore issued a judgment summons application, claiming the sum of £40,000.
The court heard the application in September last year.
As mentioned above, the court had to be satisfied that the husband had the means to make the payments on the 29th of November 2021.
Having seen bank statements that indicated that on that date the husband had some £430,000 in his bank account, the court was satisfied that the husband had the means to make the payments.
And because the husband had that money available to him the court was also satisfied beyond reasonable doubt that he had refused or neglected to pay the sums due.
The court would therefore have been in a position to commit the husband to prison for failure to make the payments. However, committal to prison is obviously a very serious step, and the court will only do it if the correct procedure has been followed, including informing the debtor of their right to independent legal advice.
Here, the court did not have evidence confirming that the husband had been informed of this right, and it therefore adjourned the question of what the sentence should be to give him a further opportunity to obtain independent legal advice.
The matter eventually went back before the court in July this year, when the court found that the husband had still failed to pay some £36,000. That failure was deliberate, and no reasonable excuse was provided.
Accordingly, the court sentenced the husband to 21 days in prison, suspended on terms that he paid the £36,000 to the wife by 4.00pm on the 30th of September 2023.
You can read the full judgment in the case here.
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