Financial Remedy - Accepting and enforcing undertakings for the payment of money.
In a recent case, H had left the fmh, but continued to make certain payments to third parties. W claimed mps. H agreed to undertake to make certain payments to third parties and gave an undertaking to do the same. The issue of quantum of mps was determined by the court.
It is important to remember to include the requirements of PD 33A with regard to any undertaking.
PD 33A 2.2 contains the words which must be endorsed on the order and 33A 2.3 & 2.4 direct the signed statement the ‘undertaker’ must give, not necessarily in court in person, by endorsing on a copy of the court order or sent in letter form to the court. This is important when it comes to enforcement.
To enforce a breach, form D50K is issued together with a statement of truth containing:-
- the amount due, showing how that amount is arrived at
- the method of enforcement sought or
- such method of enforcement as the court may consider appropriate
Most applications will chose the latter in which event rule 71.2 (6) and (7) of the CPR will apply 71.2(6) which requires a person to attend court and produce documents in his control described in the order, and answer questions on oath. The order must contain a contempt warning. An order to attend court must be personally served, unless the court otherwise directs (71.3)
FPR 5.1 is relevant because it stresses the importance of using the correct form:-
(1) Subject to rule 14.10(2) and (3), the forms referred to in a practice direction, shall be used in the cases to which they apply.