Mubarak v Mubarak: CA 2001

A judgment summons, issued was issued by the wife to enforce a lump sum order made against her husband in their divorce proceedings. The judge had performed his statutory duty which included having to satisfy himself under s. 25 of the 1973 Act of the income, earning capacity, property and other financial resources of the husband. He made a number of very damaging findings against the husband both as to his integrity and as to the quality of his disclosure. He made a lump sum order of nearly andpound;5 million and at a later stage made an order that the lump sum be paid in instalments, the first instalment being in the sum of andpound;3,200. That was not paid and the wife issued her judgment summons in the conventional form. It recited that the wife as the judgment creditor had obtained the order for the payment of the lump sum and that the husband was in default. The summons then continued: ‘You are hereby summoned to appear personally before . . on . . to be examined on oath touching the means you have or have had since the date of the said Order to pay the said sum in payment of which you have made default and also to show cause why you should not be committed to prison for such default.’
Held: The judgment summons enforcement procedure and forms, were not compliant with article 6 of the European Convention on Human Rights.
Thorpe LJ said: ‘However an application under the Act may originate in family proceedings, it is clearly a procedure subjecting the respondent to the risk of the criminal sanction of imprisonment, and it seems to me manifest that Mr Howard is correct in his submissions as to its proper classification in terms of convention law. The difficulties of adapting the age-old court 51 procedure [the into-the-witness-box-yougo-Mr-Smith] to the arrival of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 are, it seems to me, considerable. As my Lord has pointed out during the course of argument, the procedure under the Debtors Act essentially combines in one what might be said to be two distinct exercises, namely the examination of means, for which the husband respondent may well be a compellable witness; and the determination of whether he is in default and whether or not the sanction should be applied, as to which the husband is certainly not a compellable witness.
The researches which Brooke LJ, has conducted over the adjournment have demonstrated that the practice direction . . issued at the beginning of this term to ensure that proceedings for civil committal should be conducted in a fashion that would comply with the Human Rights Act, actually extends to applications under the Debtors Act 1869. He has further demonstrated that that was the case when Bodey J sat on 9 October 2000. Unfortunately, it seems that this development – then, of course, extremely fresh – was not recognised by the court and was not specifically drawn to the court’s attention by counsel. It seems to me that the fact that the practice direction is of equal application in the Family Division as it applies to committal proceedings in other divisions, and the further fact that the practice direction extends to applications under the Debtors Act 1869 as well as to any other application for civil contempt, is something of great importance that needs to be recognised immediately by all family practitioners. If that recognition follows, and if the practice direction is strictly adhered to in any future applications under the Debtors Act 1869, then the objections which Mr Howard has raised on this appeal should not be open in future cases. The practice direction should be sufficient to make the procedures under Family Proceedings rules 1991, r. 7.4 compliant with the Convention.
It seems to me, in short, that Mr Howard has triumphantly vindicated, during the hearing of this appeal, the stance that he and his team have adopted ever since the initiation of the Debtors Act 1869 application. I also conclude that he has convincingly demonstrated that the stance taken by the wife’s litigation team was plainly wrong, in that it insufficiently reflected the impact of the Human Rights Act 1998 in this relatively obscure corner of family proceedings . . I suspect that the consequence of the re-evaluation of the utility of the Debtors Act 1869 procedure in the light of the advent of the Human Rights Act 1998 will be that it will become a largely obsolete means of enforcement. I doubt whether experienced specialist practitioners will think that it has sufficient value for money to be worth its initiation. Certainly it seems to me that it will be more or less useless in cases involving fraudulent husbands seeking to conceal assets difficult or impossible to identify specifically.’
Brooke LJ said: ‘I accept Mr Russell’s submission [for the wife] that, so far as the charge was concerned, Mr Mubarak had ample notice of what was complained of under section 5 of the Debtors Act 1869. But, in relation to the matters to be relied on in support of that charge, for the reasons given by Thorpe LJ, the strategy adopted by those formerly advising Mrs Mubarak fell very far short of what modern international standards of fairness require.
. . I return to the problems created by s 5 of the Debtors Act 1869 and the procedure prescribed for judgment summonses. Section 5 of the 1869 Act, which preserves the right of committal to prison for a term not exceeding six weeks in certain limited circumstances, contains, as proviso 2, the rule: ‘That such jurisdiction shall only be exercised where it is proved to the satisfaction of the court that the person making default either has or has had since the date of the order or judgment the means to pay the sum in respect of which he has made default, and has refused or neglected, or refuses or neglects, to pay the same.’
In other words, it is putting the onus correctly on the judgment creditor to prove those matters to the satisfaction of the court, and modern case law shows that they have to be proved to the criminal standard of proof.
What follows in s 5 is a procedure for a means enquiry. It reads: ‘Proof of the means of the person making default may be given in such manner as the court thinks just; and for the purposes of such proof the debtor and any witnesses may be summoned and examined on oath, according to the prescribed rules.’
As Thorpe LJ has said, this postulates a requirement that a person who is facing what is now to be regarded as a criminal charge is to be cross-examined on oath as part of the same proceedings as part of the process of gathering evidence for the charge against him. That procedure cannot remain in place under the European Convention on Human Rights: nobody is obliged to incriminate themselves.
To make matters worse, under the Family Proceedings Rules 1991, r 7.4(5) provides that: ‘Every judgment summons shall be in Form M17.’
When one looks at form M17, it provides that it is addressed to the judgment debtor and it reads:
‘You are hereby summoned to appear personally before one of the Judges sitting in this Division at the Royal Courts of Justice, Strand, London . . to be examined on oath touching the means you have or have had since the date of the said order to pay the said sum in payment of which you have made default and also to show cause why you should not be committed to prison for such default.’
This involves putting the burden of proof upside down, so far as the requirements of article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms is concerned.
In the context of the more modern codes for enforcing orders in the magistrates’ court, the means inquiry is separated from the subsequent proceedings which may lead to committal. Under the Debtors Act 1869 and the rules and the prescribed form made under it, on the other hand, these two processes are muddled up, and muddled up impermissibly so far as the requirements of the European Convention are concerned.
I have mentioned the requirements of the convention. So far as they are relevant for current purposes, article 6(1) requires ‘a fair and public hearing’. Article 6(2) requires that ‘Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law’ – and Mr Howard rightly submitted that the presumption of innocence appeared to be being turned upside down by the procedure adopted by Mrs Mubarak’s advisors. Article 6(3) provides that:
‘Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
. . (d) to examine or have examined witnesses against him . .’
Both these requirements seem to have been completely overlooked by Mrs Mubarak’s former advisors when preparing their case in these proceedings.’

Thorpe, Brooke LJJ, Jacob J
[2001] 1 FLR 698
Matrimonial Causes Act 1973 25, European Convention on Huma Rights 6, Debtors Act 1869 5, Family Proceedings Rules 1991 7.4(5)
England and Wales
Appeal fromMubarak v Mubarak FD 30-Nov-2000
In ancillary relief proceedings, where a respondent company director conceded that the assets and income of a company could be treated as his own, it could be proper to draw aside the veil of incorporation. Nevertheless the court should be careful . .
CitedEngel And Others v The Netherlands (1) ECHR 8-Jun-1976
The court was asked whether proceedings in a military court against soldiers for disciplinary offences involved criminal charges within the meaning of Article 6(1): ‘In this connection, it is first necessary to know whether the provision(s) defining . .

Cited by:
CitedRundell v Rundell CA 14-Dec-2005
The former husband appealed an order for his committal to prison on a judgment summons in default of clearing arrears of maintenance payments. He said that the proceedings were criminal in nature and offended his rights to a fair trial under the . .
CitedEllis v Ellis CA 24-Jun-2005
The defendant appealed a suspended committal order in respect of his failure to pay maintenance. The husband had unilaterally reduced payments at the same time as withdrawing his application to vary the order.
Held: The defendant simply piled . .
See AlsoMubarak v Mubarik FD 9-May-2006
. .
See AlsoMubarak v Mubarik and others FD 12-Jan-2007
. .
See AlsoMubarak v Mubarak and others CA 17-Jul-2007
Application for leave to appeal against ancillary relief order – protracted proceedings. . .
CitedChild Maintenance and Enforcement Commission v Gibbons; Same v Karoonian CA 30-Oct-2012
Non-resident parents in each case appealed against suspended orders of imprisonment for non-payment of child support. They argued that the procedures used were indistinguishable from those held to be human rights non-compliant in Mubarak.
Litigation Practice, Human Rights

Leading Case

Updated: 01 November 2021; Ref: scu.241361

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