Barclay v Barclay  EWHC 2026 (Fam)28 July 2022
Published: 29/07/2022 09:00
Cohen J. Three judgment summonses brought by Lady Hiroko Barclay against former husband Sir Frederick Barclay for admitted breaches of (1) two £50m lump sum financial remedy orders from 2021, (2) a legal services payment order, and (3) arrears of maintenance.
Sir Frederick argued that his assets were tied up in a number of trusts in the control of his nephews and his daughter so that he did not have access to the necessary funds. Lady Barclay argued that funds would be made available by the nephews at Sir Frederick’s request. Sir Frederick argued that while his daughter had provided him with some financial support, she had withdrawn cooperation; and he was at odds with his nephews, who controlled the bulk of the assets, over a lawsuit alleging they had bugged him. While Sir Frederick had a 50% interest in the island of Brecqhou, this was unrealisable.
The court criticised the nephews for failing to provide information and hiding behind the walls of the trust structure, while spending money subsidising the husband’s legal fees and seeking to prevent the hearing being public.
However, in respect of the first judgment summons, Lady Barclay had failed to discharge the burden of proof to the criminal standard – the husband had not at any time since the original order was made had the means to pay the wife the lump sum due. The judge notes that ‘it might seem strange to an outsider that a court can find on a civil standard that a payer has the means to pay £100 million and yet when he does not pay, find that it cannot be satisfied to the criminal standard of proof that he has the means to make the payment. It will, however, be obvious that the arguments I have heard in this hearing are very different to those I had heard last year.’
Sir Frederick did have the means to pay the second and third judgment summonses. He was the primary beneficiary of a trust which held sufficient money and had used the trust ‘in effect as his bank account’ in the past, as the trustees had never refused to provide the husband with funds when he required them. The court would consider the appropriate sanction at a later date.