The Summary of the Summaries (Winter 2023)

Published: 21/11/2023 07:00

Cummings v Fawn [2023] EWHC 830 (Fam) (Mostyn J)

W’s appeal of a judgment, which had seen her held to a Xydhias agreement, was allowed on the basis that the first instance judge had not properly considered how W’s housing needs and debts could be met, nor that H had not disclosed that he was shortly to receive c. £4m in inheritance. Full rehearing ordered, following Goddard-Watts. Keywords: disclosure; consent orders; costs; setting aside orders (including Barder applications); appeals

James v Seymour [2023] EWHC 844 (Fam) (Mostyn J)

Mostyn J dismissed an appellant’s case that child maintenance ought to be calculated by reference to the formula in CB v KB. Mostyn J expanded upon this earlier judgment, setting out a comprehensive methodology for ascertaining a starting point for the quantum of child periodical payments in different categories of case. Keywords: publicity and confidentiality; Children Act 1989 Schedule 1 applications; child maintenance; child support; variation applications

Lewis v Cunningtons Solicitors [2023] EWHC 822 (KB) (HHJ Coe KC)

Question: what is the extent of a solicitor’s duty to their client on a limited retainer where they are instructed to draft a financial remedy consent order in the absence of full financial disclosure? Answer: it is variable and, where a solicitor becomes aware of a significant risk to their client, they must inform them, as here, where W agreed to take no pension share from H where this was the most valuable asset by far and where she would have received c. 50% had the matter gone to final hearing. Keywords: pensions on divorce; professional negligence

DR v UG [2023] EWFC 68 (Moor J)

High asset case in which H argued for a departure from equality on the bases of: (1) a stellar contribution; and (2) post-separation endeavour in circumstances where the company had been sold for a value much higher than its value at separation. Equal division ordered. H’s contribution was not wholly exceptional and the increase in value was not driven by a new venture. Keywords: special contribution; sharing principle; delay; valuations

RL v NL [2023] EWFC 75 (HHJ Reardon)

Successful strike out of application for the set aside of an order made in 1995. H had been ordered to transfer a property to W and had never done so, instead applying for set aside. H did not put forward legally recognisable arguments as to why set aside ought to be granted. Keywords: setting aside orders (including Barder applications); delay; striking out applications

Bogolyubova v Bogolyubov & Anor [2023] EWCA Civ 547 (King, Dingemans, Snowden LLJ)

The Court of Appeal considered the extent of the court’s independent duty in approving consent orders where Peel J had refused approval in circumstances against H’s and W’s wishes where there was a very substantial contingent liability in the form of civil proceedings with a third party in the Chancery Division. Keywords: joinder of third parties; agreements; stay of proceedings; consent orders

AR v BR [2023] EWFC 76 (HHJ Lynn Roberts)

Application for a stay of English proceedings on the basis of forum conveniens in favour of Dubai dismissed. Although proceedings were in train in Dubai, they had not been finalised. Moreover, neither party spoke Arabic and W retained her domicile in England. Keywords: forum conveniens; divorce; domicile; jurisdiction

Rose v Rose & Ors [2022] EWFC 192 (HHJ Booth)

Financial remedy final hearing in which H was found to have acted fraudulently and to have routinely disregarded orders and undertakings in a manner the judge found to be ‘flagrant’. Helpful discussion of adverse inferences. Keywords: variation of settlements; conduct; trusts

Koukash v Koukash [2022] EWHC 1001 (Fam) (Sir Jonathan Cohen)

The judge allowed an appeal where a without prejudice offer had inadvertently been left in a bundle for final hearing, on which the judge at trial had relied. Held that the original judge was not to blame for having been provided with a ‘booby-trapped bundle’, but ought to have sought further submissions from the parties as to how to proceed once he had read the without prejudice material. Keywords: privilege; appeals

Hughes v Pritchard & Ors [2023] EWHC 1382 (Ch) (HHJ Keyser KC)

Proprietary estoppel case which had been remitted from the Court of Appeal. Consideration of whether estoppel survived the death of the promisee (it was not a bar, but could be relevant to unconscionability and remedy), as well as of detriment and remedy. Keywords: detrimental reliance; proprietary estoppel; unconscionability

Backstrom v Wennberg [2023] EWFC 79 (Leslie Samuels KC, sitting as a deputy HCJ)

Final hearing in a notice to show cause application following a pre-nuptial agreement which W sought to enforce. The judge refused H’s late adjournment application and continued in H’s absence, finding that there were no reasons to depart from the terms of the pre-nuptial agreement, which provided H with, inter alia, a reversionary housing fund during the children’s minorities and periodical payments for 6 years. Keywords: disclosure; non-disclosure; agreements

CG v SG [2023] EWHC 942 (Fam) (HHJ Hess, sitting as a deputy HCJ)

Final hearing at which the main issues were whether success fees received by H post-separation were non-matrimonial (they were), and how H’s business should be valued. Held that because the business was so reliant on H (a ‘singleton business’) it should not be given a market value but should be valued on the basis of distributable profits alone. Keywords: experts; matrimonial and non-matrimonial property; costs; companies; valuations

CC v LC [2023] EWFC 52 (HHJ Wildblood KC)

Final hearing in proceedings where H had played no part by his own volition, despite all attempts to compel his engagement. Held that H would receive a lump sum amounting to c. 25% of the value of the former matrimonial home (FMH) in circumstances where it was found that he likely had undisclosed resources, and where the welfare of the children militated against a sale of the FMH. Held that it would not be a suitable case for a Mesher/Martin order. Keywords: disclosure; conduct; needs; costs

AW v AH [2022] EWFC 195 (DDJ Horton KC)

A Part III in unusual circumstances, in that the same judge had previously made a final order under the 1973 Act subject to the parties obtaining decree nisi. H then obtained a decree in China, rendering the original judgment void. The judge made a Part III order in very similar terms to his original decision. Keywords: publicity and confidentiality; jurisdiction; overseas divorce and the 1984 Act; divorce jurisdiction post-Brexit

CG v DL [2023] EWFC 82 (Sir Jonathan Cohen)

A case involving assets of c. £27m dealing with post-separation accrual and business valuations. Memorable for the fact that H had gifted W £1m as an apology for having a child with another woman, which he then sought to share. Held that, although it was a matrimonial asset, H ought not to share in it in the circumstances. Keywords: post-separation assets

SS v IS [2023] EWHC 1544 (Fam) (Roberts J)

This case concerned wealthy Russian nationals and assets held in international trust structures. H’s lack of engagement in the proceedings included only providing his open offer via recently instructed direct access counsel on the morning of trial. Discussion of non-matrimonial property and nuptial settlements. Keywords: spousal maintenance (quantum); trusts; special contribution; matrimonial and non-matrimonial property

Unger & Anor v Ul-Hasan & Anor [2023] UKSC 22 (Lords Hodge, Hamblen, Leggatt, Burrows, Stephens)

Leapfrog appeal dismissed in which the Supreme Court found that W’s unadjudicated claim under Part III did not survive the death of her former husband and could thus not be continued against his estate. Keywords: setting aside orders (including Barder applications); maintenance as a cause of action; overseas divorce and the 1984 Act; Barder applications

RA v KS (Interim Order for Sale) [2023] EWFC 102 (Recorder Allen KC)

Held that there was no jurisdiction for the court to order vacant possession of a property following an application for an interim order for sale under FPR 20.2(1)(c)(v) and s 17 MWPA 1882 in circumstances where both parties were legal and beneficial owners of the property. Keywords: sale of property; interim order for sale

Gohil v Gohil & Ors [2023] EWHC 1567 (Fam) (Mostyn J)

In this litigation, which reached the Supreme Court in 2015, H has since been prosecuted in the criminal courts. He had then provided the Family Court with information about a draft judgment in the criminal proceedings. The judge assessed the nature of the embargo on draft judgments as between different courts, noting the need for greater consistency. Keywords: criminal confiscation and restraint orders; contempt of court; embargoed judgments

Li v Simons [2023] EWHC 1626 (Fam) (Moor J)

An appeal from an unsuccessful application for a downward variation of periodical payments in circumstances where the application had followed uncomfortably hard on the heels of the original order. The appeal was nevertheless allowed, since the payer’s income was demonstrably lower than it had been assessed as being. Keywords: spousal maintenance (quantum); costs; appeals; litigation misconduct; variation applications

Bogolyubova v Bogolyubov [2022] EWFC 199 (Peel J)

Peel J’s original judgment (the appeal of which the Court of Appeal dismissed earlier this year – see above) refusing to approve a financial remedies consent order in the shadow of impending third party litigation between PrivatBank and H. Keywords: joinder of third parties; agreements; stay of proceedings; consent orders

AB v CD [2022] EWFC 197 (HHJ Shelton)

This case concerned cross-applications to vary periodical a payments order in respect of the parties’ severely disabled child in litigation stretching back to 2009. H sought a substantial reduction in payments, which was opposed by W. Determined that there would be a reduction, albeit not to the extent sought by H. A review hearing was listed to consider the position when the parties’ child left her specialist school. Keywords: variation applications; spousal maintenance (quantum); child periodical payments for over 18s; global maintenance orders; needs; child maintenance

AB v CD [2023] EWFC 103 (HHJ Shelton)

In this judgment the court considered a review hearing of the case immediately above, the child having left her specialist school. A slight increase on the previous periodical payments order was ordered as a final order and the judge refused to discharge the joint lives order in favour of W. Keywords: needs; spousal maintenance (quantum); global maintenance orders; variation applications; child periodical payments for over 18s; child maintenance

DH v RH [2023] EWFC 111 (MacDonald J)

The court granted applications for maintenance pending suit and a legal services payment order but declined within to award sums towards historic costs owed by the applicant to her previous solicitors, on the basis it was not clear that her current solicitors would otherwise cease to act. Keywords: legal services payment orders

McClean v McClean & Ors [2023] EWHC 1735 (Fam) (Roberts J)

The court heard an appeal from a final hearing at which H had unsuccessfully sought an adjournment on medical grounds. The trial had gone ahead in his absence. H later tried to make good gaps in the evidence prior to handing down of judgment. Appeal allowed on the basis that the judge had not sufficiently interrogated the evidence in light of H’s post-hearing submissions. Keywords: applications to adjourn; adverse inferences; joinder of third parties; companies; appeals; disclosure

EK v DK & Ors [2023] EWHC 1829 (Fam) (Francis J)

A successful set aside application of a consent order reached during the course of a final hearing. H had claimed under oath that he would struggle to rehouse, given his limited borrowing capacity and general liquidity. It was later revealed that at the time and since he had been able to raise a great deal of money in various ways which amounted, inter alia, to material non-disclosure. Keywords: setting aside orders (including Barder applications); consent orders; variation of settlements; trusts; valuations; joinder of third parties; liquidity

H v W [2023] EWFC 120 (HHJ Reardon)

The judge dealt with a raft of applications following a financial remedy order. W had intentionally frustrated the original order, leading to substantial losses for H. H sought an adjustment to the capital disposition under the Thwaite jurisdiction as compensation for the losses. He was granted an additional lump sum of £100,000. Keywords: enforcement; costs; delay; setting aside orders (including Barder applications); compensation principle; ‘Thwaite jurisdiction’; striking out applications; cross-applications; conduct

AFW v RFH [2023] EWFC 119 (Recorder Moys)

This case concerned enforcement of a financial remedy order in which the judge considered various avenues of relief where H had sought to frustrate matters at every turn. Helpful discussion of consequential provisions to orders for sale and pension sharing. Keywords: anonymity; enforcement; valuations; variation applications; costs; sale of property; chattels; variation of an order; delay; non-compliance

AB v CD [2022] EWFC 198 (HHJ Shelton)

This case was the second judgment in long-running proceedings detailed above at which interim orders were made for periodical payments pending clarity as to the parties’ respective positions, as well as that of their disabled daughter. Keywords: child periodical payments for over 18s; variation applications; global maintenance orders; child maintenance; spousal maintenance (quantum); needs

JD v RMD [2023] EWFC 125 (DDJ Hodson)

Low-asset financial remedy case in which debts exceeded assets. Helpful discussion of how to deal with debts where whom is to be liable for them is the magnetic factor in the case. Keywords: costs; debts

J v A [2023] EWFC 132 (Richard Harrison KC, sitting as a deputy HCJ)

An application for the stay of divorce proceedings where there were competing proceedings in Nigeria. Held that England was the more appropriate forum and dismissed H’s application for a stay. Keywords: divorce; domicile; forum conveniens; jurisdiction

BF v LE [2023] EWHC 2009 (Fam) (Lieven J)

An unsuccessful appeal against an application to set aside a financial remedy order. The appellant claimed to have lacked capacity and to have been prejudiced by the lack of participation directions. Helpful discussion of Part 3A and the various grounds of set aside. Keywords: setting aside orders (including Barder applications); special measures; participatory directions; appeals

Tsvetkov v Khayrova [2023] EWFC 131 (Peel J)

Costs judgment following the financial remedy order judgment below. Following W’s extensive litigation misconduct she was ordered to pay 50% of H’s costs on the indemnity basis. Keywords: conduct; costs; chattels; add-backs; tax; publicity and confidentiality

Tsvetkov v Khayrova [2023] EWFC 130 (Peel J)

Financial remedy judgment in case with c. £50m in assets. W found guilty of s 25(2)(g) conduct, having lied repeatedly about the whereabouts of valuable jewellery. Helpful summary on conduct including a warning to parties to not, with respect to Box 4.4, to: (1) fill it in with comments which do not amount to conduct; or (2) purport to reserve the position on conduct. Keywords: conduct; costs; chattels; add-backs; tax; publicity and confidentiality

Spencer v Spencer & Ors [2023] EWHC 2050 (Ch) (Rajah J)

Farming proprietary estoppel case brought by claimant against the estate of his late father on the basis that the latter had promised him that he would inherit farmland. Found that an estoppel did arise on the basis that the claimant had worked on the farm for many years as a quid pro quo. Keywords: TOLATA; proprietary estoppel

Baker v Baker [2023] EWFC 136 (Mostyn J)

High value financial remedy judgment where the main issues where whether H ought to be held to the terms of a New York separation agreement and whether he had failed to disclose assets in the region of $35m. W was unable to prove the existence of these assets and received c. 65% of the assessed c. £9m pot. Keywords: disclosure; conduct; separation agreement; costs

Augousti v Matharu [2023] EWHC 1900 (Fam) (Mostyn J)

The judge considered refused H permission to appeal a financial remedy order on a raft of grounds. Helpful discussion in particular of the test for adducing fresh evidence and anonymity. Keywords: needs; publicity and confidentiality; appeals

Jardaneh v Jardaneh [2022] EWFC 201 (HHJ Evans-Gordon)

Application for committal by way of judgment summons. Held that H had had the means to pay the sums required but had culpably neglected to do so. The judge initially adjourned sentencing so that H could obtain legal advice, eventually sentencing him to 21 days in prison suspended for a period to allow for payment. Keywords: costs; enforcement; committal applications and judgment summonses; legal services payment orders

DT v Secretary of State for Work and Pensions & HR [2023] UKUT 175 (AAC) (Deputy Upper Tribunal Judge Rowland)

Appeal allowed following a consent order which was based on an unreasonably high assessment of the appellant’s gross income where the Upper Tribunal found that the appellant had not actually conceded as much as the First-Tier Tribunal found that he had. Keywords: appeals; child support; agreements

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