Solutions summonsed for solicitor-advocates

In the latest instalment of a continuing series, we offer advice on the problems which face solicitor-advocates

Q Why are solicitor-advocates well placed to deal with judgment summonses issued in the Family Division under section 5 of the Debtors Act 1869 and on production summonses issued in family proceedings?A There are two advantages for solicitor-advocates.

First, the graduated fee scheme militates against counsel, making it more profitable to use a solicitor- advocate.

Second, judgment summonses are normally held in the county court, so that solicitor-advocates can be paid as 'agents' of those instructing them.

Q How did the old system offend against the Human Rights Act 1998?A Previously, the judgment summons procedure made no reference to the criminal standard of proof.

It required individuals to incriminate themselves and placed the burden of proof on the person facing committal.

Furthermore, it combined two processes: the means enquiry and the subsequent proceedings that may lead to committal.

Q How must judgment summonses be conducted under the new regime?A You should consider rule 7.4 of the Family Proceedings Rules 1991, and order 28 of the County Court Rules 1981.

The leading authority is Mubarak v Mubarak [2001] 1FLR 698.

These authorities should be read in conjunction with the practice direction on committal proceedings, issued on 28 May 1999.

Q What is the standard of proof? A It is clear that the complainant must prove the case beyond all reasonable doubt, and in the final analysis must prove that the respondent has wilfully refused or neglected to pay the sum referred in the judgment summonses.

Thus, the complainant may have to reprove the case and may not necessarily be able to rely upon previous evidence.

This may offend privilege against self-incrimination.

The complainant may also have to rely on previous findings, which may have been made only on a balance of probability.

Q What are the implications for privilege against self-incrimination?A Practitioners must be careful to distinguish between the means enquiry, in respect of which there may be no such privilege, and the subsequent proceedings, which are quasi- criminal, and attract full privilege against self-incrimination.

Thus admissions made below in the ancillary relief proceedings may have to be reconsidered and this may require technical argument concerning privilege.

Q What are the implications for conducting judgment summonses?A Previously, the onus was clearly on the debtor to disprove the case of wilful refusal or neglect.

Now the burden of proof is on the complainant.

Consequently, judgment summonses will now involve the complainant giving evidence first.

Certainly, the debtor need only give evidence once the complainant's case has been made out in accordance with the criminal burden of proof.

Practitioners must carefully consider privilege against self-incrimination and may need to insist that the court reconsider evidence previously filed and findings that have been made on the lower standard of proof.

Q What is the immediate way forward?A In Mubarak, Lord Justice Brooke stated at paragraph 64 that 'in my judgment it is essential for family law practitioners who are concerned with proceedings which may lead to committal to be fully acquainted with the requirements of article 6 of the convention [European Convention on Human Rights] before they embark on any similar process in future'.

Q What should happen now?A The burdens of proof which are required by article 6 have wide implications in the civil justice system for all enforcement proceedings that have imprisonment as their final sanction.

This case and the matters outlined earlier, call for an urgent review by the Lord Chancellor's ancillary relief working group.

Q What are production summonses?A In the Family Division, on directions hearings the court is empowered to order third parties to produce documents or to give evidence relevant to the issues which need to be tried.

Q What sort of evidence is involved?A The classic scenario concerns parties seeking to hide behind 'incestuous' family transactions or private companies.

It is often the case that close blood relatives will seek to act as nominees in relation to transactions or that those entrepreneurs will conduct their affairs behind the veil of private companies.

Q How can this be dealt with?A Members of the family or secretaries of the various companies can be required to produce evidence of all the relevant financial transactions between themselves and the party to the action, who is seeking to hide his or her assets.

The purpose of these production summonses is to seek to prove either that the relevant party is conducting his affairs through nominees or that various companies are his 'alter ego'.

Q What are the implications of the Human Rights Act 1998?A The right to privacy and the right to family life (article 8) may be infringed by far-reaching enquiries into the financial relationship between a soon-to-be-divorced spouse and his or her blood family.

Q How can production summonses be defeated?A By arguing that the evidence sought is not relevant to the issues to be tried or that it constitutes an enquiry which is wider than the scope of the trial issues and offends the rights protected by the Human Rights Act.

Q Have such arguments been marshalled in relation to the Act?A The Solicitors' Association of Higher Courts Advocates would be interested to learn how many practitioners have argued against production summonses on these grounds and the basis of such argument.

l This column is prepared by committee members of the Solicitors' Association of Higher Court Advocates.

For additional details of SAHCA and a membership application form, contact the administrator, Sandra Dawson, tel: 020 7837 0069.

E-mail your advocacy questions to: sandra@admin4u.org.uk