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Two recent cases point up the pitfalls for judges and advocates alike in the area of civil proceedings committals to prison; and in Zuk (below) serious errors of law were made by a circuit judge and exposed in the Court of Appeal. Advocates must draw all relevant law to a judge's attention; but judges may soon find themselves to be the only lawyers in court. Self-represented parties will rely on the judge to know the law. Both men who were sent to prison were self-represented; though Mr Young had had a miscellany of legal advice before his committal hearing (Young v Young  EWHC 34 (Fam)).
In this context a litigant may only be committed to prison if, in law, he can be shown according to be in contempt of a court order (Debtors Act 1869 s 5, under which Mr Zuk could have been committed uses the language of contempt, though not the actual words). The judgment does not recite the terms of the order in respect of which Mr Young was held to be in contempt. Three contempts are alluded to (paras ,  and ). It must be assumed here that the judge proceeded according to the law; but that he did so is not always clear form his judgment (and he had three barristers all acting for the wife in front of him).
One contempt is plainly made out on the face of the judgment (para ). But of the other two? The requirement to prove a negative - that he is insolvent - and to produce documents to prove it (para ), may justify further examination. In philosophical terms it is almost impossible to prove a negative: to prove someone has something is possible; but to prove conclusively that they do not - eg that a person is insolvent - and to a standard of proof beyond reasonable doubt is not easy to conceive. Mr Young was sent to prison because he could not prove his assertion that ‘he is now hopelessly insolvent' (para ).
North Shore Ventures Limited v Anstead Holdings Inc  EWCA Civ 11 (‘NSV': considered in these columns on about the same day as judgment was given in Young) set out what is meant by ‘disclosure' and ‘possession and control' in the context of committal. These terms were explained by the Court of Appeal by reference to CPR 1998 r 31.8. Family Procedure Rules 2010 does not reproduce r 31.8; but seems fair to assume that the common law is as represented by r 31.8. Neither authority - NSV and r 31.8 - are mentioned by the judge. Mr Young had been ordered to obtain documents from friends (para ) who were said to have given him money; and his failure to obtain those documents was his contempt. A court may hold that, where that a friend has documents, it is ‘possession or control' in the hands of Mr Young; but such would be exceptional (see NSV). An analysis similar to that in NSV might be thought a closer approach to the rule of law, than for there to be no analysis (as in Young).
In Zuk v Zuk  EWCA Civ 1871 Sheffield County Court dealt with another litigant in person. There, as the Court of Appeal found (with substantial help from an advocate to the court), the circuit judge had illegally sent a man to prison for nine months (it should have been at most six weeks) for failure to pay a lump sum. No alternatives to committal had been considered and there was no evidence to show that Mr Zuk had had a chance to obtain legal representation. Thorpe LJ characterised the case as a ‘sad story' and one which indicated that the greatest care must be taken to ensure that all statutory safeguards are observed. And, he might have added, where the common law can be found to assist, it must be applied also.
David Burrows is author of Practice of Family Law: Evidence and Procedure (Jordans, 2012). Disclosure is dealt with in Chapter 24.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.
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