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The husband’s application for an adjournment of a judgment summons regarding his failure to pay periodical payments was refused.
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Nov 26, 2014, 05:49 AM
Article ID :107841
The husband’s application for an adjournment of
a judgment summons regarding his failure to pay periodical payments was
Neutral Citation Number:  EWHC 3722 (Fam)
Case No: FD08D01163
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
London WC2A 2LL
Date: Monday, 28 July 2014
MR JUSTICE MOYLAN
YASMIN PREST Claimant/Respondent
- and -
MICHAEL JENSEABLA PREST Defendant/Appellant
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MR JEREMY POSNANSKY QC (instructed by Farrer & Co) appeared on behalf of the Applicant
MISS SARAH DINES (instructed by Direct Access) appeared on behalf of the Respondent
 MR JUSTICE MOYLAN: In this judgment, I propose to refer to the parties as the husband and the wife although they were divorced in 2011. This is the hearing of a judgment summons brought by the wife in which she seeks the husband’s committal to prison for failing to pay sums due under the provisions an Order I made on 16 November 2011. Those provisions are for the payment of periodical payments to the wife for her own benefit and for the benefit of the children of the parties, so accordingly maintenance orders.
 The wife is represented at this hearing by Mr Posnansky, QC. The husband is not present and applies through Miss Dines for an adjournment of the hearing. The application for an adjournment is made on the basis that he is, to quote the husband’s words, “simply not sufficiently well to come”.
 A judgment summons is an application under section 5 of the Debtors Act 1869. Its provisions enable a judgment creditor to apply to the court for the committal to prison, for a maximum of six weeks, of a judgment debtor in respect of a maintenance order.
 The section reads as follows:
“Subject to the provisions hereafter mentioned and to the prescribed rules, any default made to commit to prison for a term not exceeding six weeks or until payment of the sum due any persons who makes default in the 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 provided:
(1) That the jurisdiction by this section given of committing a person to prison shall [and then it deals with who can exercise the powers]
(2) 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 refuse or neglect to pay the same.”
 The Family Proceedings Rules 2010 contain further provisions applicable to a judgment summons which make it clear that in accordance with the terms of section 5 no person can be committed unless the judgment creditor proves that the debtor has or has had, since the date of the order, the means to pay and has refused or neglected or refuses or neglects to pay the same. This is contained in r.33.14; r.33.14(2) additionally provides that the debtor may not be compelled to give evidence.
 These proceedings have a long and complex history, which I do not propose to set out in this short judgment dealing with the application to adjourn made on behalf of the husband. I propose just to mention one or two aspects starting with my judgment of 4 October 2011. That judgment followed a heavily contested hearing at which both the husband and the wife had been represented by leading counsel as were a number of companies. The proceedings culminated in the Supreme Court’s judgment of 12 June 2013.
 In my judgment I determined that, conservatively, the husband was worth approximately £37.5 million. The husband’s conduct, in Lord Sumption’s judgment (para 4), was said to have been “characterised by persistent obstruction, obfuscation and deceit and a contumelious refusal to comply with rules of court and specific order”. He also refers to my having recited in my judgment “the long history of successive orders of the court which were either ignored or evaded”. Later in his judgment (at para 43) Lord Sumption refers to the defective character of the material as being, “almost entirely due to the husband’s persistent obstruction and mendacity”.
 The wife applied for a judgment summons in respect of maintenance arrears in the alleged amount of £428,220 on 11 April 2013. The judgment summons was issued on 12 April 2013. It was first listed for hearing on 5 June 2013. The husband did not attend that hearing. He communicated with the court by, if I recall correctly, email and requested that the application be adjourned. In a statement dated 4 June 2013 the husband said that he had to be in Nigeria, as a result of an emergency, and that he might have malaria, as a result of which he might not be able to return to London for the hearing on 5 June.
 As a result of the husband’s non-attendance on 5 June, I adjourned the judgment summons to 11 July 2013. I ordered the husband to attend the hearing on 11 July and attached a penal notice to this provision.
 On 11 July 2013, the judgment summons was effectively not addressed. It was not addressed because the hearing was taken up dealing with the husband’s applications to vary the lump sum and maintenance orders of 16 November 2011. I dismissed the husband’s applications and dealt with a number of other matters but not the judgment summons.
 I made an order on 24 July that the judgment summons should be listed for hearing on 18 and 19 November 2013. The husband had not agreed to the matter being listed on those days and had sought a longer postponement or adjournment.
 On 29 September 2013, the husband sought the adjournment of the judgment summons for a period of six months. On the first day fixed for the hearing, namely 18 November 2013, he again sought an adjournment on the basis that he had to have an operation on his foot that afternoon. During the course of my judgment dealing with that application, to which I reluctantly acceded, I dealt with the nature of the evidence filed by the husband in support of his application.
 The adjourned hearing was fixed for 15 and 16 January 2014. Those dates were further adjourned by agreement between the parties to 28 and 29 July.
 The husband has been served with the orders adjourning the judgment summons and with the order fixing today’s hearing.
 On 10 June 2014, proceedings concerning the children were before a district judge sitting at the Central Family Court. The order which he made includes the following recital:
“AND Upon the father informing the court that he intends to attend the hearing listed before Mr Justice Moylan on 28 and 29 July 2014.”
 The recital, additionally, specifically states that the husband proposes to return from his holiday with the children in New York for that purpose and that he would arrange for a responsible adult to care for the children during his absence.
 On 24 July 2014, my clerk received an email direct from Mr Prest. In that email he seeks an adjournment of this hearing due to ill-health. I quote:
“I have been under a great deal of stress over the past two years and this has taken its toll on me and unfortunately my health has deteriorated significantly over the past two months. I have seen my general practitioner for the best part of a year and he has referred me to three specialists who have advised me to undertake a course of treatment which has commenced and will continue over the next 6 to 12 months. I am sorry that I am just not well enough to attend court on 27 July. Having seen the last of the three specialists on 10 July this year, the extent of the deterioration in my health is apparent and I am not able to attend. I take the court proceedings very seriously but I am simply not sufficiently well to come.”
 He then seeks an adjournment of this application for 12 months or, if that is not acceptable, for as long as possible.
 The report from the husband’s general practitioner is dated 21 July 2014 and is headed, “To Whom It May Concern”. It reads as follows:
“Michael Prest has been a patient of mine for the past five years. He has become increasingly unwell over the past year and, having examined him and carried out investigations, it became clear that the emotional pressures of the past few years have taken their toll on his physical and mental health and led to his current clinical state. I have subsequently arranged for him to see several specialists who have concurred with the diagnosis and have advised a course of treatment which will be of 6 to 12 months’ duration. He has been advised to dramatically reduce his commitments for the foreseeable future and to remove himself from any situations that may cause him emotional or mental stress and focus on getting himself back to good health.”
 Miss Dines has made submissions today on behalf of Mr Prest in support of the application for an adjournment. This has happened because, in response to Mr Prest’s email of 24 July, I indicated that I was not prepared to deal with his application for an adjournment on paper and that the application would have to be addressed at this hearing today.
 Miss Dines repeats that the husband is not sufficiently well to attend court. She submits that he is unable to attend emotionally and physically due to his health. The husband went with some or all of the children of the family to the United States on or about 12 July and that is where he remains.
 Miss Dines submits that I should either adjourn the application generally or possibly adjourn this application to enable the husband’s general practitioner to attend to give evidence. She also indicated that she might be able to give me more information about the husband’s health but was only prepared to do so in the absence of the press. I indicated that I was not prepared to hear evidence through submissions and that I would base my decision on the basis of the evidence as contained in the report from the general practitioner.
 Miss Dines submits that there is sufficient detail in the report to cause me sufficient concern that it would be wrong given, in particular, the criminal nature of these proceedings, to proceed in the husband’s absence. Given that his liberty is at stake, she submits that he needs to be sufficiently fit and well to be able to attend and to give evidence.
 The application for an adjournment is opposed by Mr Posnansky on behalf of the wife. He has taken me through the history of these proceedings and referred me, in particular, to previous adjournments of the proceedings and previous matters relied upon by the husband in support of his applications for adjournments.
 In respect of the medical report, he submits that it is extremely vague and does not say in what way the husband is unwell. It does not say what his clinical state is nor what the doctor’s diagnosis is, nor what diagnosis has been given by the several specialists. It does not say when the husband has been examined and does not say what course of treatment has been advised.
 I have also been referred to a previous report dated 19 March 2013 provided by the same general practitioner which states:
“Mr Prest has been a registered patient at this practice for the past 20 years. He is currently suffering from a stress-related condition and I have advised him to rest and take time away from his usual activities.”
 The medical evidence does not satisfy me that the husband is not able to attend today. It is, as Mr Posnansky submits, extremely vague. It does not indicate what the nature is of his current clinical state. It does not indicate the diagnosis as given or identified either by the general practitioner or other specialists and it does not state in terms, in my view by implication even, that the husband is not able to attend court today.
 In my view, especially having regard to the history of this application and the number of occasions on which it has been adjourned, it would not be right for me to adjourn it further today.
 Miss Dines, on behalf of Mr Prest, the husband, renews her application for the adjournment of the hearing of the wife’s judgment summons on the basis of further medical evidence provided by the husband’s GP in a note, perhaps is the best way of describing it, dated 28 July 2014. This states:
“Further to my report, dated 21 July 2014, I would like to add that I am of the opinion that Michael Prest is not fit to attend a two day court hearing on 28 and 29 July 2014 due to his continuing medical and stress related problems.”
 I dismissed the earlier application in part on the basis that the evidence then being relied upon was insufficiently specific and did not make clear why it was being said that Mr Prest was not able to attend court because of health problems.
 In my view, the current addition does not remedy the deficiencies in the earlier report. There is again no detail as to the nature and extent of Mr Prest’s health problems. It does not state what his medical and other problems are save to the say that they are stress related. I do not propose to accede to the application. In my view the evidence does not justify my adjourning this hearing.
 The husband is not in the jurisdiction. He is abroad on holiday with the children. If he had been insufficiently well to attend court, I would have thought he might also not have been well enough to go on holiday to the USA for upwards of three weeks.