It is common in matrimonial proceedings for the Family Court to order one spouse (the “Judgment Debtor”) to pay interim maintenance pending final determination of the divorce petition (known as maintenance pending suit) or monthly periodical payments to the other spouse (the “Judgment Creditor”). In the unfortunate yet very common occurrence that the Judgment Debtor fails to make the maintenance payments, the Judgment Creditor may take out a Judgment Summons application to compel payment in accordance with the court order.  However, the long-standing Judgment Summons procedure has recently undergone a complete overhaul in light of inconsistencies with certain features of the Hong Kong Bill of Rights (“the HKBoR”)

The Original Judgment Summons Procedure

Under the original judgment summons regime, if the Judgment Debtor refuses or fails to make payments in accordance with a maintenance order, the benefiting spouse can enforce the order by way of a judgment summons. During the hearing, the Judgment Debtor would be examined as to his/her financial means to satisfy the maintenance order (the “Examination Process”) and the Judge would determine if the Judgment Debtor is in default and whether or not they should be committed to prison (the “Committal Process”). Essentially, the procedure combined two distinct exercises of Examination and Committal into one.

The Case of YBL v LWC

However, the Court of Appeal in YBL v LWC [2017] 1 HKLRD 823 recently held that hearing the Examination and Committal applications concurrently was wrong in principle and practice as it infringed certain features of the HKBoR.

In this case, the wife issued a Judgment Summons against her husband on 13 August 2013, which was heard in 2015. It was decided that the husband was in default and ordered that he be committed to prison for 3 months which could be suspended upon payment of HK$521,000 into court. Subsequently, the husband obtained legal representation and applied to the Court of Appeal for bail pending appeal.

The Court of Appeal held, granting the appeal, that the current Judgment Summons procedure engaged Articles 5 (liberty and security of a person), 10 (equality before courts and right to a fair and public hearing) and 11 (rights of a person charged or convicted of a criminal offence) of the HKBoR. Especially, infringing Article 5 by committing a Judgment Debtor to imprisonment merely on his lack of means.

The court stressed that committal should be a last resort and, as a matter of procedural consideration, put forward remedial interpretations stating that an application for committal should not be heard together with other applications.

Practice Direction on the New Judgment Summons Procedure (Effective from 11 February 2019)

The Practice Direction develops the remedial interpretations and provides practical guidance on the procedural segregation of the Examination and Committal processes. In practice, this would mean that the Judgment Debtor would first have to attend court for an oral examination and, if appropriate, the Judgment Creditor would have to seek leave to apply for his/her committal.

1. Examination Process

Under Rule 87(3) and 87(4) of the Matrimonial Causes Rules (Cap.179) (“MCR”), when an application to issue a summons to examine the Judgment Debtor is granted, it should continue to be made by Form 23. However, in accordance with the remedial interpretations, it should only be regarded as the examination of the Judgment Debtor and not his/her committal. Service of the Examination Summons should also be accompanied by the new warning notice annexed to the Practice Direction. Not only does this ensure that the Judgment Debtor has sufficient warning, but also avoids any confusion arising from the current statutory wording of Form 23 as to the nature and purpose of the summons.Upon conclusion of the Examination Summons, the Judgment Creditor can decide how to proceed to enforce the Judge’s order made pursuant to Rule 87(5) of the MCR, and if the Judgment Creditor deems appropriate, apply for leave to issue a Committal Summons.

 2. Committal Process

The Judgment Creditor must apply ex parte to seek leave to apply for an order for committal. The application must be supported by (1) a statement detailing the necessary particulars (“the Statement”) and (2) a supporting affidavit verifying the facts relied on in the Statement (“the Supporting Affidavit”).

If leave is granted, the Judgment Creditor must issue an inter partes summons in accordance with Rule 90(1) of the MCR and serve it on the Judgment Debtor together with the warning notice as annexed to the Practice Direction.

Conclusion

Pending any formal amendments to relevant rules of the MCR and its accompanying statutory forms regarding the judgment summons procedure, the existing practice of combining the examination and committal process has ceased. The practice direction came into effect on 11 February 2019 and all pending judgment summons prior to that date will be treated as examination summons subject to any orders or directions from the Court. 

For any enquiries related to this article, please contact    Ms. Kajal Aswani   of our firm.