Barclay v Barclay [2023] EWFC 16417 August 2023

Published: 01/11/2023 09:32

Sir Jonathan Cohen. This was the fifteenth hearing arising out of the W’s three judgment summonses for the payment of £50m, £185k and £60k.

The H had been ordered to pay the W £100m in two instalments which were due in 2021 and 2022. The H had not paid any of the amount due.

The W issued three judgment summonses, the first for £50m, the second for £185k and the third for £60k. The judge was not persuaded to the criminal standard of proof that the H had access to funds to enable him to pay the lump sum orders but did find that the H had, during the material time, the ability to meet the sums due under the second and third summonses. The hearing was adjourned for sentence and the H paid the sum of £245k just before that hearing.

The sentencing hearing was then adjourned on multiple occasions and, at every hearing since February 2023, the H had told the court that money would appear at any moment, on which basis the judge had adjourned the case with the approval of the parties.

The H had told the court that the source of funds was a family friend, Martin Clarke, who repeatedly assured the court that the money had been sent by the lender and would arrive imminently. He blamed the delay on the money being caught in the banking system and then that the lender was concerned about confidentiality, but a solution appeared to have been found, so the judge adjourned again.

The judge stated that whether the lender even existed would be speculation and it was unclear why the H had not been able to call on any of a range of business contacts he must have.

Both parties requested that the committal proceedings be brought to an end. The W had asked for a suspended committal order, a sentence of imprisonment suspended for seven days, to be activated in the event the H does not pay the sum of £8.5m in that period.

The judge considered there to be several factors of particular importance:

  1. That he was only dealing with sentencing for breach of the obligation to pay £245k (the second and third summonses).
  2. The H paid the money promptly after the judge made a finding of contempt.
  3. The judge had no evidence that the H has access to any material funds, despite his great wealth, his funds were placed in trust structures which deprives him of ownership and control. The H owns nothing other than £550m of loan notes issued by an entity which does not have the funds to honour them.
  4. The H is 88 years old and suffers from physical and cognitive decline.

The judge concluded that he could not make a committal, suspended or otherwise, because he did not know of any source of funds to which the H had access, or of anyone who has any obligation in law to provide funds for him. The judge was satisfied that the impasse was not caused by the deliberate frustration of his orders by the H.

The judge reminded the parties that the £100m plus interest and other sums to the W were still owing.

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