Family Law

Mohan v Mohan [2013] EWCA Civ 586 provides a timely reminder of the law in relation to self-incrimination privilege; but it also suggests that questions about procedure for over enforcement of family proceedings financial orders are some way from being resolved by Family Procedure Rules 2010 and the new provisions of Part 33.

Anyone commenting on a case must be wary of the fact that the court's recitation of the facts may hide factors which occurred behind the scenes. The facts of Mohan suggest a wife who had applied for capital and, as the case progressed, seems to have settled for declining amounts from her husband. And, when a court order was made giving her nearly £2m, a property was sold by H and she received £1.24m with a third of 'her due' being 'the high point of [her] pursuit' as Thorpe LJ put it (para [11]). That sum seems not to have been charged upon the proceeds of sale (despite eg Matrimonial Causes Act 1973 s 24A(6)), since the case concerned her steps to fail to secure payment - thus far.

When most of this sum was still not paid W filed three applications: (1) a general application which leads to an oral examination, in respect of which H was ordered to file a Form E and replies to various further information requests; (2) later, a judgment summons application and (3) alongside that for committal of H for failure fully to comply with the order under (1). The question was whether the Form E, statement and documents were covered by any form of self-incrimination privilege because H had been compelled by order to produce them. The circuit judge had said they were to be excluded. The Court of Appeal with assistance from an advocate to the court held that the documents should be admitted (the advocate supported W's appeal to that extent); but that the statements, because extracted by compulsion, should not.

It seems that W's advisers had deliberately used the general application procedure to obtain evidence, intending then to convert to the Debtors Act 1869 application. Thorpe LJ disapproved of this. He also dispatched the judge's exclusion by explaining that his reasons for so doing were based on a tax evasion case (R v K [2010] QB 343, CA) against a H where H's evidence in separate ancillary relief proceedings was sought by HMRC.

In his helpful review of the law (paras [32]-34]) Thorpe LJ reminded practitioners that the source of the new procedure for Debtors Act applications is Human Rights Act 1998 and Mubarak v Mubarak [2001] 1FLR 698.

[32] ... This court held that the procedure exposing the debtor to the risk of imprisonment meant that the debtor was no longer a compellable witness. The Family Proceedings Rules 1991 were then amended to curtail the debtor's risk of imprisonment. Those safeguards are now to be found in the Family Procedure Rules 2010 at Rule 33.14....

[34] In this jurisdiction there have been a number of reported cases concerning enforcement under the Debtors Act 1869 [including] Zuk v Zuk [2012] EWCA Civ 1871. There is then the decision of this court in Gibbons v CMEC; Karoonian v CMEC [2012] EWCA Civ 1379 and the decision of Mostyn J in Bhura v Bhura. The tenor of these cases has sought a balance between the Article 6 right of the judgment debtor not to be compelled and the legitimate search of the judgment creditor for the recovery of the debt.

Any spouse contemplating enforcement under the procedures in FPR 2010 should start by referring to Mostyn J's summary and explanation of the recent case law in Bhura v Bhura [2013] EWHC 3633 (Fam), Mostyn J.

David Burrows is author of Practice of Family Law: Evidence and Procedure (Jordans, 2012).

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.