Rundell v Rundell [2005] EWCA Civ 1764

Case No B4/2005/2439/2439(A)[2005] EWCA Civ 1764
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ALDERSHOT & FARNHAM COUNTY COURT
(HHJ MILLIGAN)
Venue Royal Courts of JusticeDate Wednesday, 14th December 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE THORPE
LORD JUSTICE RICHARDS
Between
DAVID WILLIAM RUNDELLApplicant-v-
Between
KATHLEEN ELIZABETH RUNDELLRespondent
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MS R CAREW POLE (instructed by Sears Tooth Solicitors) appeared for ApplicantMR H MERRY (instructed by Lee & Company Solicitors) appeared for Respondent
J U D G M E N TWednesday, 14th December 2005

LORD JUSTICE THORPE:

On

[1]3rd October 2005 His Honour Judge Milligan, sitting in the Farnham and Aldershot County Court, made a suspended committal order against the applicant. The order essentially required him to pay £5,000 a month to his former wife to avoid imprisonment for past breaches. There was a degree of confusion as to whether that sum was to be on account of continuing obligation, but an amendment of the order under the slip rule makes it plain that that sum is inclusive of any sums accruing under the original order. So the monthly payment is partially on account of the continuing obligation and partly in reduction of the arrears of approximately £37,000 that had accrued by the date of the hearing before the circuit judge. The arrears derived from underpayment of sums due under a consent periodical payments order made on 15th October 2003. At the trial before the judge on 3rd August, the former wife, whom I will refer to as the creditor, was represented by counsel, Mr Merry. Mr Rundell, the debtor, appeared in person.[2]The order of 3rd October Mr Rundell sought to appeal. He made an application for permission to appeal which was put before Judge Milligan. His application was dated 9th October and it was refused on paper by the judge shortly thereafter. Quite understandably, Mr Rundell, the applicant, did not appreciate that since the order for suspended committal is regarded as an order going to the liberty of the subject, he required no permission to appeal to this court. The judge fell into error in assuming that permission was required and that explains how he came to refuse it. But the mistake was evident once Mr Rundell had consulted the very experienced solicitors who now represent him and they filed a notice of appeal on 31st October challenging the judgment on a number of grounds which have since been distilled by Ms Carew Pole in her skeleton argument.[3]The essential ground of appeal is that the judge breached the essential safeguards of the debtor's rights arising under Article 6 of the Human Rights Convention, given that the enforcement by way of judgment summons is to be classified as a criminal process. So, the safeguards are: first, the presumption of the debtor's innocence and consequently the burden of proof on the creditor; second, the debtor's entitlement to a warning against self-incrimination; and, third, of course, that the creditor's case must be proved to the criminal standard.[4]Mr Merry, who appears before us for the respondent to the appeal, accepts those principles and that they applied to the proceedings on 3rd October. Our essential task then, this morning, is to assess the proceedings to see whether or not the criticisms of the procedure advanced by Ms Carew Pole are made good. We have the advantage of a full transcript of the proceedings which demonstrate that when the case was called on, Mr Merry for the creditor explained at once that there were before the court three judgments summonses which had been served on 13th September last and all three were based on the consent order of 15th October 2003. He explained that his case was established by an affidavit of service and also, critically, by four affidavits filed by the creditor on 22nd December 2004, 28th February 2005, 4th July 2005 and 18th August 2005.[5]Mr Merry went on to explain that in the interim since 18th August additional sums had been received on account and they had been brought in to the debtor's credit so that the resulting figure, in respect of which he sought enforcement, was £37,392.75.[6]All that having been clearly explained to the judge, Mr Merry concluded at page 4 of the transcript, "That is my case, your Honour."

The judge then turned to the debtor and said:

"Now, Mr Rundell, you have heard what Mr Merry has had to say. The judgment summons procedure is available to any party who says that maintenance for an adult or a child is not being paid under a court order. And it is open to that party to issue a judgment summons. The procedure under that is that, firstly it has to be established that there are arrears. Secondly, it has to be established that the other adult in question has had the means to pay and has wilfully refused or failed to do so. And if a Judge comes to the conclusion that that is the case, he can make an order for committal by sending the payer -- the ordered payer -- to prison or he can make an order suspending such committal upon terms, or he can make such other order as he thinks fit. That is today's issue. So what is your position, Mr Rundell? You tell me?"
[7]That cited passage attracts Ms Carew Pole's first criticism. She says that the judge has failed to state clearly that the judicial conclusion must be upon the criminal standard of proof; that is to say, the judge must conclude so that he is sure before he can make an order. It is worth recording the debtor's response to the judge's explanation of what lay ahead. He said:
"My position, your Honour, is significantly different to that described by Mr Merry. At least one of the affidavits are perjurous and I shall proceed to show those to be the case. We have paperwork which has in fact been amended and has not been annotated subject to the correct application of the slip rule. I have called witnesses to support my case. For this case I have not been allowed to do so."

The judge then went on to discuss with Mr Rundell those aspects.

[8]I move on to the second passage which is criticised by Ms Carew Pole which is at page 19 of the transcript where

the judge put this to Mr Rundell:

"Now, I have affidavits deposing to arrears of £37,392, and the judgment creditor's position is that you are in receipt of income which was most recently assessed by a District Judge at that £143,750 figure."
[9]The criticism of that is that the judge had not had any income figure for the debtor proved to the criminal standard, and should not have relied upon a figure assessed by another judge on an earlier occasion when that other judge was applying a civil standard in proceedings in which Mr Rundell was a compellable witness.[10]It is worth, again, recording Mr Rundell's response. He said to the judge:
"MR RUNDELL: No, that is not correct, your Honour. JUDGE MILLIGAN: Do you want to come into the witness box and tell me what is? MR RUNDELL: I will come into the witness box and tell you the truth, your Honour. JUDGE MILLIGAN: Just as you like."
At that point Mr Rundell was sworn.[11]Ms Carew Pole says, in relation to that, that the judge has failed to warn Mr Rundell first that he is not compelled to give any evidence and second that he must be careful not to give any evidence that might amount to self-incrimination. The worth of that submission I will come to in due course.[12]Her third complaint is directed to a passage at page 22 of the transcript. But before I come to that I think it is worth noting that very soon after Mr Rundell had entered the witness box, during the course of the judge's questions, the judge points out the clear case against him. Mr Rundell responds, "That [is what] Mr Merry says." The judge corrects him, "No, that is the judgment creditor's case. Now, if you say the figures are wrong, I would be grateful if you would tell me." The following exchange took place: A. "I'm saying they're wrong and I'm not in a position to be able to give you what the correct figures are. Q. How do you know they are wrong? A. Because I don't know that they're right. In order to be sure that they are right, I need to be sure myself that they're right. And I'm unwilling to give evidence on oath that they are right when I am unable to substantiate those figures." That short citation gives a fair flavour of the nature of the evidence that the judge had to assess.[13]Ms Carew Pole's criticism of page 22 is directed to an intervention when

the judge says:

"Just answer the questions, Mr Rundell."
That, she submits, is an indication that her client was being put under pressure by the judge to testify and was thus at risk of self-incrimination. The judge's interjection has to be assessed in its context. At this point Mr Merry was cross-examining: Q. "Why were [you] not paying the money between October 2003 and the summer of 2005? A. Because for a large chunk of that time I was unemployed. As I have explained to the court. However, the court does not accept that I was unemployed. Q. Well, for a short chunk of that time you were unemployed, but you have not been unemployed since June 2004, have you? A. When you refer to employment, to what statute do you refer?"[14]That provocative answer attracted the judge's intervention. Ms Carew Pole has submitted that notwithstanding the degree of provocation, whatever it might have been, the judge should not have so intervened.[15]Her final criticisms are also of an exhortation from the judge to the witness at page 26. The question by the judge, "So I therefore assume that all the income is kept by you?" was answered by Mr Rundell, "No, you wouldn't be correct in making that assumption. You can make it if you like." The judge then said, "Mr Rundell, please do not be impertinent - do you say that some salaries were paid?"[16]Finally, at page 28, when asked the question, "...where did the rest of [the company income] go?" Mr Rundell replied, "I'm not aware of any order for Jupiter Protected Investments Services Limited to be providing evidence in this hearing, your Honour." That was, on any view, a provocative response to the question and it attracted this from the judge, "Oh, Mr Rundell, do grow up. This is your company and you provide the services."[17]Ms Carew Pole has also advanced criticism of the brief judgment, particularly at paragraph 7, in which the judge stated that Mr Rundell had a current income of about £9,000 a month net of tax. She has sensibly accepted my Lord's proposition that if her criticisms of the manner in which the judge conducted the enquiry fail, then she can have no criticism of the judgment.[18]Thus the essential question for our decision is whether the judge's conduct of the proceedings breached the debtor's Article 6 rights given the quasi-criminal nature of the proceedings. Those rights are, of course, important rights, but they are not to be elevated so as to subvert the enforcement process upon which the judgment creditor is entitled to rely. I would reject, without hesitation, the submission from Ms Carew Pole that the proceedings cannot commence on the footing that the prior proportionate judgment as to the quantum of the payer's obligation cannot be brought into enforcement proceedings as a preliminary foundation. I reject the submission that because that proportionate quantification was achieved in quasi-inquisitorial proceedings in which the payer was a compellable witness, it follows that the assessment must be excluded from the process of enforcement.[19]Here the reality is that the case against the debtor was a formidable one. His obligation stemmed from an order that was reached by consent. The quantum of the arrears was properly established by sworn evidence. The proceedings had been properly served on the debtor. In my judgment Mr Merry had to do no more than he did. I reject the submission that it was incumbent upon him to call his client to the witness box. Her evidence-in-chief was sufficient and complete by her affidavits and I do not consider that any additional protection which must be accorded to a litigant in person obliged Mr Merry to formally tender her for cross-examination.[20]Most importantly, I do not consider that the transcript substantiates Ms Carew Pole's submission that her client was compelled to give evidence. The reality is, most evidently, that once Mr Merry had opened his case and demonstrated its strong foundations, there was an election for Mr Rundell either to walk away and face the consequences of the judge's determination or, alternatively, to explain himself in order to justify himself. That, in my opinion, is not to reverse the burden of proof, nor to deny the debtor's rights arising from the three agreed principles. It is simply a reflection of the reality that a strong prima facie case had been proved against him and if he were to avoid the consequences it was incumbent upon him to undermine or gainsay that case.[21]I do not conclude that the judge's interventions were at any point unjudicial given the provocation that the transcript clearly reveals and the casuistic nature of the extensive evidence given by the debtor, which at all points was designed to obscure rather than to reveal the essential realities.[22]I do accept that there is a comparison that can be drawn between the way in which Judge Milligan conducted the proceedings and the way in which Judge David Turner QC conducted similar proceedings before him, reviewed by this court in the case of Ellis v Ellis on 24th June 2005. Wall LJ, at paragraph 18 of his judgment, emphasises that Judge Turner had gone to very great lengths to emphasise the impact of the decision of this court in Mubarak v Mubarak [2001] 1 FLR 698 and to the practice direction which was subsequently issued by the President of the Family Division.[23]I accept that ideally in his exposition to the debtor as a litigant in person, at page 4 of the transcript, the judge would have drawn attention to the major procedural shift in the conduct of judgment summonses established by the case of Mubarak and would equally have referred to the three principles which are agreed in this case. However, taking his conduct of the proceedings as a whole, I am perfectly satisfied that had he given the perfect exposition it would not have made a jot of difference to the way the proceedings developed or to their outcome.[24]Despite the care which Ms Carew Pole has devoted to this appeal, I endorse her classification of her various arguments as being essentially technical in character. None of them individually has, in my judgment, much force or weight and they do not gain anything by summation into a cumulative total. The overwhelming reality is that an obligation was established by a consent order which remains on foot. There has been no subsequent application for its downward variation. The amount of the arrears that have accrued is not in issue. Even if Ms Carew Pole could demonstrate such procedural error or deficit as would justify the setting aside of the suspended committal order, the underlying obligation would remain rock solid and would be the subject of immediate renewed enforcement proceedings. The only sign of any glimmer of good sense in this puzzling story is that Mr Rundell has, since 3rd October, maintained payments at the level set by the circuit judge and accordingly the underlying debt is at least now less substantial than it was on 3rd October.[25]For all those reasons I would dismiss this appeal.

LORD JUSTICE RICHARDS: I agree.

ORDER

Application dismissed; costs to the respondent in the agreed sum of £4,306.38.

Cited in 1 later judgment