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Ask Clare Your Own Question

Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 33311
Experience:  I have been a solicitor in High Street Practise since 1985 and have specialised in Family Law for the last 10 years
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1. Claire you have said that I should use a judgement

Customer Question

1. Claire you have said that I should use a judgement summons form D63. Can you please confirm that to apply for a Judgement summons to be issued by the court I need to complete and submit form D62. According to the Department of Justice web site Procedure Rules Practice Direction 5A – Forms refers to form D62 under Part 33 Enforcement. I think this is the application form needed for a D63 Judgement Summons.2. On Form D62 there is a check box that has to be checked that states;“I am aware that if I do not prove to the satisfaction of the Court at the hearing that the debtor has, or has had since the date of the order, the means to pay the sum in respect of which he has made default and that he has refused or neglected, or refuses or neglects, to pay it, I may have to pay the costs of the judgment summons.” What is the cost of the judgement summons. Presumably it is not talking about the £110 fee for the D62 application (as per Section 9.9 of the Statutory Guidance for Court Fees). Is it referring to his costs if he brings legal representation or the cost of the court for the hearing? Would be to understand any possible exposure to cost here.I understand this is to do with his human rights in that he cannot be asked to incriminate himself. Will the existence of his Killick and Co pension and his (presumed) pension pots, which I presume to still be in existence, be sufficient evidence that he has the means to pay because I have absolutely no idea as to what means he has or has not as we have been separated for 6 years and I have no knowledge of his income since the issue of the consent order in May 2013. Also what about the fact that he has bought air tickets for our children and paid for them during their visits to Brazil to see him and one child is due to fly later this year which he is funding. He also came over to the UK in the summer during the Olympics for a 3 week period again to visit the children and is of course coming in December. This does not seem like a man who has no means at all. As to the extent of his mean this is open to debate obviously. How high will the bar be for me demonstrate he has some means.3. Turning to the issue of the judgement summons itself. We need him to be in the UK for the hearing. Under the same section of the Justice web site Rule 33.3 explains how to apply for a Judgement Summons. Rule 33.10 stipulates where the Application must be made and seems straight forward. Rule 33.11 covers how a judgement order can be served, item (3) of which allows serving on the debtor (a) personally, (b) by the court sending by first class post. Item (4) puts a requirement on the judgement creditor to file with the court a certificate of posting which does not make sense to me as in this case the court would have sent the judgement summons not the judgement creditor. The advice I need here is what is the best way to serve my ex husband. It we use his home address in Brazil he may well cancel his trip to the UK. It is clearly impracticable for me to serve the summons personally. So should we use the UK address where we think he will be staying, but then there is the issue that the summons has to served at least 14 days before the set hearing date of the summons and if he is only in the UK for 2 weeks this makes it difficult. Alternatively as long as it is addressed to him and it arrives at the address in UK more than 14 days before the hearing would this count as being served in accordance with the rules or does he actually have to read the summons 14 days before the hearing date?
Submitted: 1 month ago.
Category: Family Law
Expert:  Clare replied 1 month ago.

My apologies - it is a D62 not a D63 that you need first

You have sufficient evidence (the plane tickets) to show that the non payment is a choice and not a necessity - that is all that you need

You wait until his arrival in the Uk and arrange for him to be served personally.

You will need to explain to the court the difficulty that you face is service and ask for the time for service to be abridged (shortened) to seven days

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