The Family Procedure Rules 2010

CHAPTER 2 E+W COMMITTAL BY WAY OF JUDGMENT SUMMONS

Interpretation E+W

33.9.  In this Chapter, unless the context requires otherwise—

“order” means an order made in family proceedings for the payment of money;

“judgment creditor” means a person entitled to enforce an order under section 5 of the Debtors Act 1869;

“debtor” means a person liable under an order; and

“judgment summons” means a summons under section 5 of the Debtor's Act 1869 M1 requiring a debtor to attend court.

Marginal Citations

M1 1869 c.62. Section 5 was amended by articles 2 and 3 of the Civil Procedure (Modification of Enactments) Order 2002 ( S.I. 2002/439) and the Statute Law (Repeals) Act 2004 (c.14).

Application E+W

33.10.—(1) An application for the issue of a judgment summons may be made—

(a) in the case of an order of the High Court—

(i) where the order was made in matrimonial proceedings, to the principal registry, a district registry or a divorce county court, whichever in the opinion of the judgment creditor is most convenient;

(ii) where the order was made in civil partnership proceedings, to the principal registry, a district registry or a civil partnership proceedings county court, whichever in the opinion of the judgment creditor is the most convenient; and

(iii) in any other case, to the principal registry, a district registry or a designated county court, whichever in the opinion of the judgment creditor is most convenient;

(b) in the case of an order of a divorce county court, to whichever divorce county court is in the opinion of the judgment creditor most convenient; and

(c) in the case of an order of a civil partnership proceedings county court, to whichever civil partnership proceedings county court is in the opinion of the judgment creditor most convenient,

having regard (in any case) to the place where the debtor resides or carries on business and irrespective of the court or registry in which the order was made.

(2) An application must be accompanied by a statement which—

(a) complies with rule 33.3(1);

(b) contains all the evidence on which the judgment creditor intends to rely; and

(c) has exhibited to it a copy of the order.

Judgment summons E+W

33.11.—(1) If the debtor is in default under an order of committal made on a previous judgment summons in respect of the same order, a judgment summons must not be issued without the court's permission.

(2) A judgment summons must—

(a) be accompanied by the statement referred to in rule 33.10(2) and

(b) be served on the debtor personally not less than 14 days before the hearing.

(3) A debtor served with the judgment summons under paragraph (2)(b) must be paid or offered a sum reasonably sufficient to cover the expenses of travelling to and from the court at which the debtor is summoned to appear.

Successive judgment summonses E+W

33.12.  Subject to rule 33.11(1), successive judgment summonses may be issued even if the debtor has ceased to reside or carry on business at the address stated in the application for the issue of a judgment summons since the issue of the original judgment summons.

Requirement for personal service E+W

33.13.  In proceedings for committal by way of judgment summons, the following documents must be served personally on the debtor—

(a) where the court has summonsed the debtor to attend and the debtor has failed to do so, the notice of the date and time fixed for the adjourned hearing; and

(b) copies of the judgment summons and the documents mentioned in rule 33.10(2).

Committal on application for judgment summons E+W

33.14.—(1) No person may be committed on an application for a judgment summons unless—

(a) where the proceedings are in the High Court, the debtor has failed to attend both the hearing that the debtor was summonsed to attend and the adjourned hearing;

(b) where the proceedings are in a county court, an order is made under section 110(2) of the County Courts Act 1984 M2 ; or

(c) the judgment creditor proves that the debtor—

(i) has, or has had, since the date of the order the means to pay the sum in respect of which the debtor has made default; and

(ii) has refused or neglected, or refuses or neglects, to pay that sum.

(2) The debtor may not be compelled to give evidence.

Marginal Citations

M2 Section 110(2) was amended by articles 2 and 8 of the Civil Procedure (Modification of Enactments) Order 2002.

Orders for the benefit of different persons E+W

33.15.  Where an applicant has obtained one or more orders in the same application but for the benefit of different persons—

(a) where the judgment creditor is a child, the applicant may apply for the issue of a judgment summons in respect of those orders on behalf of the judgment creditor without seeking permission to act as the child's litigation friend; and

(b) only one judgment summons need be issued in respect of those orders.

Hearing of judgment summons E+W

33.16.—(1) On the hearing of the judgment summons the court may—

(a) where the order is for lump sum provision or costs; or

(b) where the order is an order for maintenance pending suit, an order for maintenance pending outcome of proceedings or an order for other periodical payments and it appears to the court that the order would have been varied or suspended if the debtor had made an application for that purpose,

make a new order for payment of the amount due under the original order, together with the costs of the judgment summons, either at a specified time or by instalments.

(2) If the court makes an order of committal, it may direct its execution to be suspended on terms that the debtor pays to the judgment creditor—

(a) the amount due;

(b) the costs of the judgment summons; and

(c) any sums accruing due under the original order,

either at a specified time or by instalments.

(3) All payments under a new order or an order of committal must be made to the judgment creditor unless the court directs otherwise.

(4) Where an order of committal is suspended on such terms as are mentioned in paragraph (2)—

(a) all payments made under the suspended order will be deemed to be made—

(i) first, in or towards the discharge of any sums from time to time accruing due under the original order; and

(ii) secondly, in or towards the discharge of a debt in respect of which the judgment summons was issued and the costs of the summons; and

(b) the suspended order must not be executed until the judgment creditor has filed a statement of default on the part of the debtor.

Special provisions as to judgment summonses in the High Court E+W

33.17.—(1) The court may summons witnesses to give evidence to prove the means of the debtor and may issue a witness summons for that purpose.

(2) Where the debtor appears at the hearing, the court may direct that the travelling expenses paid to the debtor be allowed as expenses of a witness.

(3) Where the debtor appears at the hearing and no order of committal is made, the court may allow the debtor's proper costs including compensation for any loss of earnings.

(4) When the court makes—

(a) a new order; or

(b) an order of committal,

a court officer must send notice of the order to the debtor and, if the original order was made in another court, to that court.

(5) An order of committal must be directed—

(a) where the order is to be executed by the tipstaff, to the tipstaff; or

(b) where the order is to be executed by a deputy tipstaff, to the county court within the district of which the debtor is to be found.

Special provisions as to judgment summonses in designated county courts E+W

33.18.—(1) Rules 1, 2, 3(2), 5, 7(3) and 9(2) of Order 28 of the CCR (which deal with the issue of a judgment summons in a county court and the subsequent procedure) do not apply to judgment summons issued in a designated county court.

(2) Rule 9(1) of Order 28 of the CCR (notification of order on judgment of High Court) applies to such a summons as if for the words “the High Court” there were substituted the words—

(a) “any other court” where they first appear; and

(b) “that other court” where they next appear.

(3) Rule 7(1) and (2) of Order 28 of the CCR (suspension of a committal order) apply to such a summons subject to rule 33.16(2) and (3).