The Evidential Burden in Judgement Summons Hearings: Migliaccio

In my article published in November [2015] Fam Law 1365, ‘Judgment summons: an inadequate remedy – a defaulter’s charter: Prest v Prest‘, I set out an analysis of the Court of Appeal’s decision (McFarlane LJ) in that case (reported at [2016] 1 FLR 773) dealing with, in particular, the required procedure to be followed upon a judgment summons committal hearing. In Prest, a number of previous authorities were considered, including Bhura v Bhura [2012] EWHC 3633 (Fam), [2013] 2 FLR 44 (per Mostyn J) and Mohan v Mohan [2014] 1 FLR 717 (per Thorpe LJ). In Bhura (at para [13] of the judgment) Mostyn J had, within 13 propositions, summarised the legal principles applicable to a hearing for a judgment summons. In the fourth proposition His Lordship stated:

‘It is essential that the applicant adduces sufficient evidence to establish, at least, a case to answer. Generally speaking, this need not be an elaborate exercise. Proof of the order and of non-payment will likely give rise to an inference, which establishes the case to answer.’

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