LEGAL AID AVAILABLE FOR RESPONDENT TO APPLICATION TO COMMIT UNDER THE DEBTORS ACT 1869

In Haskell v Haskell [2020] EWFC 92 Mr Justice Mostyn held than application under the Debtors Act 1869 is broadly equivalent to an application for committal and legal aid should be awarded.

THE CASE

The applicant made an application under the Debtors Act 1869 to commit the defendant to prison for non-payment of arrears.

THE DEBTORS ACT 1869

The debtors Act 1869 was an Act to, generally, abolish imprisonment for debt (interestingly it maintains imprisonment  for “Default by a solicitor in payment of costs when ordered to pay costs for misconduct as such, or in payment of a sum of money when ordered to pay the same in his character of an officer of the court making the order:”). The Act can still be used in relation to a failure to pay money in certain family cases.

 

  1. The applicant has issued a judgment summons against the respondent pursuant to sec 5 Debtors Act 1869.2
  2. Although an application under sec 5 Debtors Act 1869 is technically to seek imprisonment for debt the application is nonetheless a species of contempt proceedings. The applicant must prove the existence of the order and that since the order the respondent has had at any point the means to pay the sums due under the order and has refused or neglected to pay them. It these are proved to the criminal standard then the court has a discretion to sentence the respondent to imprisonment for up to six weeks.2
  3. The maximum length of imprisonment aside, this is indistinguishable from the process that obtains in contempt proceedings.4
  4. Therefore, it is my opinion that the respondent is entitled to non-means tested legal aid. See Re O (Committal: Legal Representation) [2019] EWCA Civ 1721. That right is now codified in the new FPR 37.4(2)(i) and (j) which comes into force on 1 October 2020.5
  5. Time was when the High Court itself would award legal aid. That power has been doubted and the correct procedure is for the respondent to apply to the Legal Aid Agency. See CH v CT [2018] EWHC 1310 (Fam)[2019] 1 FLR 700 and The All England Lawn Tennis Club (Championships) Ltd v McKay (No. 2) [2019] EWHC 3065 (QB).6
  6. I grant permission to the respondent to produce this ruling to the Legal Aid Agency on any application for legal aid.

THE DEBTORS ACT CONSIDERED: MUST BE USED WITH CARE

The use of the Act as a means of enforcement was considered by the Court of Appeal in Zuk v Zuk [2012] EWCA Civ 1871. The Court held that a judge had erred in committing the respondent to prison for nine months when the statute only allows a maximum of six weeks.  If anything t his highlights the need for procedural care and why a respondent may require representation.

    1. The Debtors Act 1869 was a statute passed in the Victorian era for the abolition of imprisonment for debt and for other purposes. Its plain intention was to restrict the circumstances in which a person could be imprisoned for non-payment of a debt. Section 5 of the Act contains a saving power of committal for small debts. It is for present purposes relevant only for the following passages, which I cite :

“Subject to the provisions herein-after mentioned, and to the prescribed rules, any court may 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.”

And then proviso (2) provides:

“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.”

Thus the first passage cited sets the limit on the court’s jurisdiction (maximum six weeks) and the second proviso establishes a burden of proof on the applicant to establish that the debtor has the means to pay and has refused or neglected or refuses or neglects to pay the same.
    1. In passing I note that section 11 of the Administration of Justice Act 1970 further limits the reach of section 5 of the Debtors Act in that that section provides, and I cite only the essential words:

“The jurisdiction given by Section 5 of the Debtors Act 1869…shall be exercisable only –

(b) by a county court in respect of –

(i) …a county Court maintenance order;…

  1. So the journey on which Ms Cumberland has taken us establishes that the proceedings below are peppered with error from beginning to end. Who is responsible? In some part it is the creditors’ solicitors in issuing the original application on the wrong form, as Ms Allman submits, and before service of the order on the debtor. It seems to me that it is impossible to allocate responsibility between the judge and the creditors’ legal team below and particularly her counsel, since again we lack the record, but I would only emphasise that both counsel for the creditor and the judge bore a considerable responsibility to ensure procedural and other fairness to an unrepresented litigant. We know from the note provided by the judge that counsel for the creditor apparently took her through the relevant law. If he did, then he clearly failed to protect the judge from error by demonstrating that she was exercising powers under the Debtors Act with all its limitations.
  2. The end result seems to me that everybody suffers. The wife, who was the successful applicant in the ancillary relief proceedings, has been kept out of her money, and, however lacking in merit the appellant may be in the context of the ancillary relief proceedings, he has been unjustly imprisoned for a period which looks to me more like four-and-a-half than three months. It is a sad story, and the moral of it is that, where in the county court steps are taken to enforce ancillary relief payments by an application to commit under the Debtors Act, both those representing the creditor and the judge must take the greatest care to ensure that all the safeguards provided by statute are duly observed.
  3. For all those reasons I would allow this appeal.