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 [F1 Debtors] Act 1869 M1 requiring a debtor to attend court.

Textual Amendments

F1 Word in rule 33.9 substituted (24.8.2015) by The Family Procedure (Amendment No. 2) Rules 2015 (S.I. 2015/1420), rules 1(4), 18 (with rule 26)

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.— [F2 (1) An application for the issue of a judgment summons may be made—

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

(i) the principal registry;

(ii) a district registry; or

(iii) the family court,

whichever in the opinion of the judgment creditor is most convenient, and if to the family court, to whichever Designated Family Judge area is in the opinion of the judgment creditor most convenient; and

(b) in the case of an order of the family court, to whichever Designated Family Judge area 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 location of the court or registry in which the order was made.

(For the way in which information will be provided to enable Designated Family Judge areas and Designated Family Courts to be identified, see Practice Direction 34E.)]

(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.

Textual Amendments

F2 Rule 33.10(1) substituted (22.4.2014) by The Family Procedure (Amendment No. 2) Rules 2014 (S.I. 2014/667), rules 1, 32 (with rule 45)

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.

[F3 (2) A judgment summons must be accompanied by the statement referred to in rule 33.10(2).

(3) A judgment summons must be served on the debtor—

(a) personally; or

(b) by the court sending it to the debtor by first class post—

(i) at the address stated in the application for the issue of a judgment summons; or

(ii) in a case where a court officer is proceeding for the recovery of a debt in accordance with rule 32.33, at the last known address for the debtor shown on court records.

(4) In a case to which paragraph (3)(b)(i) applies, the judgment creditor must file with the court a certificate for postal service.

(5) A judgment summons must be served on the debtor not less than 14 days before the hearing.

(6) Paragraph (3) is subject to any direction of the court that the judgment summons must be served personally on the debtor.]

Textual Amendments

F3 Rules 33.11(2)-(6) substituted for rule 33.11(2)(3) (24.8.2015) by The Family Procedure (Amendment No. 2) Rules 2015 (S.I. 2015/1420), rules 1(4), 19 (with rule 26)

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.

[F4 Order or summons to attend adjourned hearing: requirement for personal service E+W

33.13— (1) Paragraph (2) applies in proceedings for committal by way of judgment summons where—

(a) the family court has ordered under section 110(1) of the County Courts Act 1984 that the debtor must attend an adjourned hearing; or

(b) the High Court has summonsed the debtor to attend an adjourned hearing following the debtor’s failure to attend the hearing of the judgment summons.

(2) The following documents must be served personally on the debtor—

(a) 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).]

Textual Amendments

F4 Rule 33.13 substituted (24.8.2015) by The Family Procedure (Amendment No. 2) Rules 2015 (S.I. 2015/1420), rules 1(4), 20 (with rule 26)

[F5 Committal on application for judgment summons E+W

33.14.— (1) Subject to paragraph (2), on a hearing of an application for a judgment summons the debtor may be committed for making default on payment of a debt if the judgment creditor proves that the debtor—

(a) 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

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

(2) A debtor may not be committed in accordance with paragraph (1) where the judgment summons was served by post, unless the debtor attends the hearing.

(3) Where the debtor has been ordered or summonsed to attend an adjourned hearing in accordance with rule 33.13, the debtor may be committed—

(a) for failure to attend the adjourned hearing; or

(b) for making default on payment of a debt, if 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.

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

Textual Amendments

F5 Rule 33.14 substituted (24.8.2015) by The Family Procedure (Amendment No. 2) Rules 2015 (S.I. 2015/1420), rules 1(4), 21 (with rule 26)

[F6 Expenses E+W

33.14A.— (1) A debtor must not be committed to prison under section 110(2) of the County Courts Act 1984 unless the debtor has been paid or offered a sum reasonably sufficient to cover the expenses of travelling to and from the court building at which the debtor is summoned or ordered to appear.

(2) The sum must be paid or offered at the time of service of—

(a) the judgment summons; or

(b) the order to attend under section 110(1) of the County Courts Act 1984.]

Textual Amendments

F6 Rule 33.14A inserted (24.8.2015) by The Family Procedure (Amendment No. 2) Rules 2015 (S.I. 2015/1420), rules 1(4), 22 (with rule 26)

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)  [F7 The High 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, [F8 the High 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, [F9 the High Court] may allow the debtor's proper costs including compensation for any loss of earnings.

(4) When [F10 the High 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 [F11 Designated Family Judge area within] which the debtor is to be found.

Textual Amendments

F7 Words in rule 33.17(1) substituted (24.8.2015) by The Family Procedure (Amendment No. 2) Rules 2015 (S.I. 2015/1420), rules 1(4), 23(a) (with rule 26)

F8 Words in rule 33.17(2) substituted (24.8.2015) by The Family Procedure (Amendment No. 2) Rules 2015 (S.I. 2015/1420), rules 1(4), 23(b) (with rule 26)

F9 Words in rule 33.17(3) substituted (24.8.2015) by The Family Procedure (Amendment No. 2) Rules 2015 (S.I. 2015/1420), rules 1(4), 23(b) (with rule 26)

F10 Words in rule 33.17(4) substituted (24.8.2015) by The Family Procedure (Amendment No. 2) Rules 2015 (S.I. 2015/1420), rules 1(4), 23(b) (with rule 26)

F11 Words in rule 33.17(5)(b) substituted (22.4.2014) by The Family Procedure (Amendment No. 2) Rules 2014 (S.I. 2014/667), rules 1, 35 (with rule 45)

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

F12 33.18.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F12 Rule 33.18 omitted (22.4.2014) by virtue of The Family Procedure (Amendment No. 2) Rules 2014 (S.I. 2014/667), rules 1, 36 (with rule 45)