About this case:

• Citation:
  [2023] NICA 45
• Judgment:
  External link
• Court:
  NI Court of Appeal
• Judge:
  Mrs Justice Keegan

The court found that the imprisonment was regrettable but necessary given that no assurances were given in relation to paying back the debt.

This appeal stemmed from an earlier High Court ruling which resulted in a six-month contempt order for the ex-solicitor, as reported by Irish Legal News in May 2023.

Background

The appellant, John Brian Stelfox, challenged an order for committal for contempt made in March 2023, whereby he was ordered to be committed to prison for six months, for failure to comply with an earlier July 2021 order.

The 2021 order related to maintenance payments, including arrears from 2017. The judge found that even when the appellant had money available, he made no attempt to meet his obligations to make maintenance payments towards his children.

The main arguments raised in relation to the appeal were that serving one prison term had reduced the appellant’s capacity to pay, and that through some acquaintances he had been able to provide a part payment.

Grounds of appeal

The appellant advanced four grounds for his appeal: (i) procedural issues; (ii) whether the elements of contempt were made out; (iii) whether committal was appropriate; and (iv) double jeopardy or double counting in relation to the term imposed. The court only dealt with the procedural claims, finding the others to be meritless.

Order 52 of the Rules of the Court of Judicature (Northern Ireland) 1981 governs contempt. The court also noted the principles from Hurl v Lupari [2017] NIQB 23, particularly that:

The court also considered the warning given in Re B (IA) (an infant) [1965] Ch. 112:

The appeal highlighted Order 45, rule 4(1)(a), which provides that a person may face a committal order where they refuse or neglect to do an act within a specific time, as required by a judgment or order.

The appellant contended that his underlying order did not require him to do any act within a time specified in the order. The court accepted this argument and issued a revised unambiguous order.

Subsequent events

In June 2023, the court was told that a part payment of £11,000 had been made. His counsel also submitted that he would look for jobs and pay £100 per month month from his state pension for ongoing child maintenance.

The appellant also maintained that some family members would pay one child’s educational fees, although the court noted that “no actual flesh was put on the bones of that”. He applied for remittal of all arrears.

In response, the respondent submitted that although she did not want the arrears remitted, she also did not wish to file her own motion for contempt. She had no desire to see the appellant imprisoned again, but just wanted his obligations to his children to be met.

She also referred to a suggestion that a businessman would lend the appellant funds to help pay £50,000 at one stage, but then that offer was removed. Nothing happened after the initial £11,000 part-payment.

The court found this to be “unfortunate” as any further payments would have caused the court to seriously consider “whether any further period of imprisonment was justified”.

Consideration

The court highlighted that: “It is a given that contempt powers should be used sparingly. They should only be exercised as a last resort where other less drastic remedies are not available.”

However, in this case the appellant maintained his position, and the court noted that he was in contempt of court beyond a reasonable doubt, for failing to pay the sum specified in the order.

This was an unambiguous order for payment, and as such the appellant faced a further six months’ imprisonment.

However, the court did consider mitigation. They noted that the appellant did make some payment, albeit only around one-tenth of what he owed. He also indicated an intention going forward of paying some money for child maintenance, which was a material change from his previous stance, of offering and paying nothing.

Further, the court accepted that the respondent was not pushing for his imprisonment. The court also noted that in matrimonial jurisdictions, there comes a time when the court must draw a line. However, that time had not yet come in this case.

The court highlighted two ongoing problems in the case. First, the appellant still had made no apology for his conduct. Second, the amount he paid off the arrears was not enough to avoid imprisonment. Otherwise, the court found, the deterrent aspect of contempt “becomes meaningless”.

The court also stressed that “matrimonial orders for maintenance must be complied with and are as serious as any other orders”. The court therefore proceeded on the basis that court orders must not be allowed to be rendered meaningless, thereby undermining confidence in the administration of justice.

Conclusion

As a result, the court declined to remit the arrears. In considering the proportionate punishment for the remaining breach of the order, the court found that a period of imprisonment of three months was appropriate, applying a reduction based on the mitigating factors above.

This custody requirement was necessitated, “regrettably” by the appellant’s failure to settle the debt or substantially settle the debt. The court were given no reassurances about providing any future lump sums.

The court concluded: “Should the appellant pay the £50,000 lump sum previously mooted in correspondence to the respondent within the next seven days he can apply to this court, and we will consider suspending or varying the order.”