England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		23 October 2008

Mr Bruce Blair QC:

1. Mrs K, the petitioner in divorce proceedings, is the (now only) Applicant for a variation of a maintenance Order pursuant to section 31 Matrimonial Causes Act 1973 and, importantly, a litigant in person. In circumstances which I will refer, Mr K, who is also currently acting in person in these proceedings, is not present. In paragraph 1 of an Affidavit sworn last Wednesday, 15th October, in support of what he describes as an application to stay these English proceedings in favour of the Californian proceedings to which I make frequent reference below, he says "I am currently resident in Tel Aviv…and have been since December 27, 2007. I am unable to attend any hearings in England. No disrespect is meant to the Court, which I hope will consider the representations which are contained in this Affidavit at the hearing scheduled for October 20, 2008." He makes that statement in the knowledge that, by paragraph 4 of the Order made by Mr Justice Ryder on 27th February 2008, to which I shall refer later in its chronological sequence, both he and Mrs K were ordered physically to attend this hearing.
2. For ease of expression I shall refer to Mrs K as 'the Wife' and Mr K as 'the Husband'.
3. For reasons which I shall later explain, I shall not be determining the merits of the Wife's application for variation at this hearing. It will be adjourned, for what I emphasise is intended to be one last time. What I shall address is the Husband's purported application for a stay. I say 'purported' because no summons has in fact been issued. What is more, if a date is to be fairly ascribed to the initiation of the 'application', then that date should be Thursday 16 October at the earliest, because it was on that day that the Wife became aware of it, when she visited her former solicitors, Mishcon de Reya, and was handed the Husband's Affidavit, which presumably had been sent to them as her last known Solicitors. For completeness, I add that the Affidavit (together in both cases, of course, with the supporting documents relied upon by the Husband) was also sent by FedEx to the home of the Wife's parents in California, where she has resided since the beginning of August 2008. The documentation arrived there on Friday 17th October. This late service, one to two working days before the commencement of this hearing on Monday 20th October is, as a matter of elementary principle, unacceptable. However, in my discretion I shall ignore procedural irregularity and give a judicial reaction to the request for a stay, partly because I am aware that there is to be an important hearing in the Superior Court in the County of San Bernardino, California ("the Californian court") in less than a fortnight's time, that is on Monday 3rd November. In doing so, I shall assume that there is indeed an inherent jurisdiction to grant a stay in the circumstances of this case, a matter upon which I have heard no legal submissions; but I record that it occurs to me that the point may not be free from argument to the contrary. However, I propose to deal with the application on its merits.
4. I turn to summarise the background history. In doing so, I enter the caveat that, with only one party present and neither represented, I am not in the fortunate position of enjoying that induction into the case which would naturally flow from written case summaries etc submitted by counsel. What follows is a distillation of the history as I have gleaned it from the documentation which I have read, marginally supplemented by what the Wife has told me. Inevitably, there is a degree of selectivity, but I believe that the narrative which follows is fairly balanced and sufficient unto the current purpose. I have read into a wide range of material and confirm that I take it into account in its entirety.
5. The Wife was born on 3rd February 1964, and the Husband on 31st August of the same year. They are both, therefore, aged 44. Each of them is of American nationality and is a British citizen. They married on 23rd August 1992 and lived until 1996 in the United States. Their one child, S, was born during that period, on 27th July 1994, and is thus aged 14. He has been caught in a vortex of high acrimony between his parents. The proposition is elementary, but it is worth reciting that, pursuant to the provisions of sections 25 and 31 of the Matrimonial Causes Act 1973, his welfare is the Court's first consideration.
6. In 1996, the family moved to London, where they remained in the case of the Husband until December 2007, he then retreating to live in Israel, and in the case of the Wife and S until 1st August 2008, she having decided to go and live with her parents, in California. In the year 2000 the marriage broke down, and the parties separated. The duration of the marriage was, therefore, some 8 years. A Decree Nisi of divorce was pronounced on 6th July 2001, made absolute on 30th November 2001.
7. The Wife filed the inevitable application for ancillary financial relief and the parties exchanged Forms E and substantial questionnaires which (subject to certain alleged deficiencies) were answered. Their total capital worth at that time was meagre. They owned no real property, and lived in rented accommodation. The totality of the Husband's assets was stated in Form E to be £89,853, of which £67,756 consisted of bank account balances, £5,751 was the stated value of his shares in a company named MatchNet Plc, for whom he worked, and the balance (before minor liabilities) consisted of motor vehicles. Apart from the MatchNet shares, the Husband had share options in that company as to which his evidence in 2001, and subsequently, was / has been that they were at that time worthless. I have seen nothing which suggests that this was a false presentation, and I note that in a Declaration made by the Husband in the Californian proceedings he states: "I offered Mrs K half of the share options, but as there was no appreciable value anticipated she refused my offer". The Wife too had limited capital resources in 2001. The figure ascribed was £96, 487, of which £66, 069 consisted of bank account balances (most of the parties 'bank accounts' were in joint names, hence the very similar figures in that category).
8. I have seen, exhibited to the Husband's affidavit dated 19th November 2007, extracts from the solicitors' correspondence which was the medium of the parties' financial negotiations. Neither of them seriously suggested that a clean break could be achieved and, after a process of offer and counter-offer, consensus was achieved. It was incorporated in a Consent Order made by District Judge Bowman on 16th November 2001. Obviously, one must look at what is a four page order for its full terms and effect, but the essential features were

•    The Husband to pay to the Wife a lump sum of £55,000.

•    The Husband to transfer to the Wife ownership of a Mercedes Motor car.

•    On the above basis there was, as to capital / property, a clean break

•    As to income provision, the Husband to pay periodical payments of maintenance to the Wife for herself at the rate of £12,000 pa, and for S at a rate of £30,000 pa (both figures to be uplifted annually by reference to the Retail Prices Index). I believe that both parties concur that there was a deliberate loading in favour of S.

9. In the recital to the Consent Order, the parties declared that it was not their intention to seek a variation order of periodical payments. either as to wife or child, for a period of at least 5 years from the date of the Order save in exceptional circumstances. In the event, there was in 2004 serious dialogue on the question whether the maintenance should be increased, as the Wife contended. It was in that year that the Husband cashed in his share options. The detail of the transactions concerned has been articulated in various places, including in Paragraph 16 of the Husband's Declaration in the Californian proceedings, where he states that the total sum received was in the region of £3,200,000. The Husband and the Wife actually exchanged Forms E on a voluntary basis in the year 2004; but nothing came of their dialogue at that time and the matter remained dormant until 2006. It is worth noting that in 2004 the Husband asserted his contention, subsequently repeated, that "at the time of separation and the settlement in this matter, I offered Mrs K half my share options which were valueless at the time. Mrs K did not want the share options; instead she wanted as much free case as possible in the settlement and received virtually all the cash available. A large part of my current wealth rises from the profit made on those share options. It will be unfair for Mrs K to seek to rely upon the improvement in my financial position since the separation and financial order agreed between us, in so far as it arise from the cashing in of those share options"
10. In practice, however it was the Husband who in 2006, as he was fully entitled to do, re-activated the litigation. On 30th June 2006 he applied for a variation of the periodical payments order made in 2001, making it clear that he wished that a term be imposed upon the Wife's maintenance and the resulting figure capitalised in order to effect a clean break. The Wife on 18th August 2006 issued a cross-application for upwards variation of the maintenance, she too favouring capitalisation. The statutory power of capitalisation, it should be noted, embraced within section 31(7A) of the Matrimonial Causes Act 1973, had been introduced with effect from 1st November 1998 (although I mention, for completeness, that prior to that date there had been instances of the Court being willing to commute a (generally, wife's) claim for periodical payments in consideration of the payment by her husband of a suitably calculated capital sum.
11. Forms E were again exchanged, and I have referred to the answering of questionnaires, which was detailed, productive of wide-ranging documentation and highly cost consumptive. In the preparation of the cross-applications a great deal of professional industry, and money, has been expended. My understanding is that the Wife's costs alone approach or perhaps slightly exceed a figure of £200,000. At first blush that seems a considerable amount in the context of a variation application; but, having seen the material that I have, I am not surprised.
12. The final hearing was fixed for 3rd December 2007. By late October the battle lines were drawn, although still outstanding was the exchange of the parties' narrative affidavits, the production of which had by agreement been extended beyond the date prescribed by the relevant District Judge's direction. Before their production the Husband made a move entirely unexpected by the Wife: he applied for an adjournment. The ground relied upon was explained in an affidavit dated 6th November 2007. Reduced to simplicity (the detail simply does not matter for the current purpose) the Husband said that a possible tax liability on his previous income from MatchNet, mentioned but not hard pressed by him previously, was now under an investigation by the Special Investigations Unit of the Inland Revenue which was increasing in its intensity and particularity. The outcome of the investigation was, he said, impossible to predict. Thus, the viability or otherwise of a capitalisation exercise must be in doubt and the case needed to be adjourned. The Wife initially opposed adjournment and on 8th November Mrs Justice Black passed the decision as to whether the capitalisation element of the final hearing should be adjourned to the Judge presiding over that hearing and ordered that the parties should serve their narrative affidavits by 16th November and that the Husband should by 20th November provide a short report from his accountant dealing with the taxation investigation. That report, from the Husband's accountant Mr Jacobs, was ultimately dated 19th November 2007. Mr Jacobs explained that the range of possible outcome was so wide that, at best, there would be no tax payable but, at worst, the tax inclusive of penalties and interest could entirely wipe out the Husband's wealth. In those circumstances, and with great reluctance, the Wife finally agreed to an adjournment and an Order was made to that effect by Mr Justice Hedley on 3rd December 2007. The Wife's position (as stated by her counsel at a subsequent court hearing in February 2008) is that the adjournment was agreed upon the basis that the Husband would progress the evolution of the dispute with the Inland Revenue. Whether he has done so is unknown: in this respect his departure to Israel may or may not be of significance, although I note that he has insisted that it is not so, and he intends to continue dialogue with the Revenue. Further, to return to Hedley J's order, the Husband consented to an order that he pay a contribution of £46,000 inclusive of value added tax towards the Wife's costs. This sum has not been paid.
13. There have been several further hearings subsequent to Hedley J's Order, one before, the remainder after, the Husband departed to Israel. On 13th December Mr Justice Charles, at the conclusion of a forensic contest where both parties were represented by counsel, granted a freezing injunction to the effect that until the return date (2nd March 2009) or further order of the Court, the Husband must not –

i) remove from England and Wales any of his assets which are in England & Wales up to the value of £1,000,000; or below

ii) in any way dispose of, deal with or diminish the value of any of his assets whether they are in or outside England & Wales up to the same value.

The Order was expressed not to prohibit the Husband from spending £2,500 a week towards his ordinary living expenses and also a reasonable sum on legal advice and representation, and provided that he may agree with the Wife's legal representatives that the above spending limits should be increased or that the Order should be varied in any other respect, such agreement to be in writing. It was provided that the Order would cease to have effect if the Husband provided security by paying the sum of £1,000,000 into Court or make provisions for security in that sum by another method agreed by the Wife's legal representatives.

14. I note that in paragraph 29 of his Declaration to the Californian court the Husband states that on the day following the Order of Hedley J the Wife's solicitors sought relief from the Court in form of a freezing Order. That may give the impression that this process was a rushed affair, which it was not. In fact, the Wife issued her application for freezing relief on 5th (not 4th) December 2007, and the contested hearing took place, as I have said, on 13th December. In the meantime, the Husband had on 11th December placed before the court an extensive Affidavit in opposition to the application.
15. Since the Husband's position at that time was that his assets were in the region of £2,800,000, it is impossible to see how the freezing injunction was as great an embarrassment to him in practical terms as he has loudly protested. My understanding is that between January and July 2008 inclusive the Husband did not pay the maintenance for the Wife and S in the sum of £3,500 per month. His explanation is that the sum would ordinarily have been paid from the income derived from English-based assets which were frozen; but that seems to me to ignore, for example, the proposition that the maintenance could have been paid from resources sited out of the jurisdiction. It is well established that the source of payment of interim maintenance can properly be from capital as well as from income (the former a mode of payment which, in terms of the remittance of monies to this country, may well have suited the Husband from the fiscal viewpoint).
16. I find it difficult to follow how the Husband can assert (Californian court Declaration paragraph 31) "…essentially (he) was forced to flee England as (his) bank account was frozen there and (his) credit cards cancelled…"; nor do I follow his assertion (paragraph 32) that "the effect of the freezing Order has been to make it impossible for (him) to defend (himself) in an English Court". Both assertions seem to me to be unsustainable.
17. On 15th January 2008 Mr Richard Anelay QC (sitting as a High Court Judge), after hearing counsel for both parties but with the Husband not attending, heard an application by the Husband for variation of the Order of Mr Justice Charles to facilitate better cash flow. By that stage the Wife had achieved freezing relief in Jersey by Order dated 4th January 2008. I do not have available to me a transcript of Mr Anelay's judgment, but plainly he was not impressed by the Husband's application, which he dismissed. The Judge ordered the Husband to file and serve by 29th January 2008 an Affidavit setting out

iii) full details of his assets and liabilities (wherever located);

iv) his response to the Affidavit of wife's solicitor which had been sworn on 14th January

an order which the Husband ignored. For the record, neither this nor any other Order made by the court in these proceedings has been appealed by the Husband, so far as I am aware.

18. There was then a hearing before Ryder J on 27th February. The Judge heard counsel for the Wife. The Husband was by then in person. He did not attend, but had submitted a statement to the court. The Judge's Order included the following provisions

•    Unless the Husband complied with the following Orders on or before 19th March his application for variation of periodical payments should stand dismissed and he should pay the Wife's cost of that application.

The Orders for compliance were stated to be;-

a. payment of the £46,000 (costs) ordered by Hedley J.

b. payment of £5,000 by way of interim maintenance ordered by Charles J.

c. return of a sum of $400,984 to an account held by the Husband in Jersey.

d. return of the sum of £56, 700 to the same account in Jersey.

e. The Order relating to the production of an Affidavit setting out in full the extent and exact location of all the Husbands assets and liabilities.

•    It was provided the Husband should be at liberty to apply to vary or discharge this paragraph of the Order on short notice.

•    It was ordered (based upon the premise that the Wife was in desperate financial straits) that the final hearing, then scheduled to take place on 2nd March 2009, should be brought forward. In the event it was fixed for this current week, commencing 20th October.

•    As I have already said, both parties were ordered to physically attend this hearing.

•    There were provisions to do with applications issued by the Wife to set aside various transfers of property and money entered into by the Husband, the detail of which need not, in the current context, be recited.

•    The parties were ordered to file statements updating their financial circumstances not later than 6 weeks before the final hearing.

•    The Husband was ordered to pay the costs of the application before Ryder J, to be assessed if not agreed on the indemnity basis, but with a provision that he make an interim payment on account of £6,000 on or before 12th March 2008.

19. It will already be apparent that the Husband is in serious contempt of various Orders of the English Court. The breaches are various, some of a financial and some of a practical nature. Again, the precise detail does not matter. Suffice it to say that the financial breaches exceed in total value the sum of £100,000. By a charging Order made by District Judge Million on 9th April 2008 the interest of the Husband in his London apartment was charged with payment of £47, 280 plus costs, being the amount due on the Order of 3rd December. By further charging order of the same date that interest was charged with the payment of £43, 330, expressed to be the amount due on the orders of 13th December 2007, 27th February 2008 and 16th November 2001, together with costs. There are then further arrears of maintenance in respect of payments not made in 2008. The Husband has not produced an Affidavit explaining his assets and liabilities as ordered. He has failed to attend at this hearing.
20. On 1st August 2008 the Wife together with S went to live in California, at least initially with her parents. She has told me that there were several reasons for this decision. Her motivation was, she says, primarily financial. She was faced with eviction from her flat and very substantial, and mounting, debt. There were also the problems with S at school to which reference is made by the Husband in his Californian court Declaration. She said that this was, in relative terms, a minor factor in the formulation of her intention to leave England. As to her indebtedness, in broad summary she has told me that she owes the following (in approximate figures):

Litigation loan (Royal Bank of Scotland)	£62,000
Mishcon de Reya	£120,000
Her Jersey lawyers	£6-10,000
Israeli lawyers	£6,000
Credit card (Visa)	£5,000
NatWest personal loan	£7-8,000
Landlord	£5,600
Electricity	£200

She explains that, from the maintenance paid by the Husband from July 2008 onwards (the month when he recommenced payment), she has paid $7,200 to her American attorney, Mr Becker, which she hopes will cover his fees up to and including the hearing due to take place on 3rd November, but nothing more. Her assets are, effectively, nil. She told me that she had sold her car and used some of the proceeds to finance her air flight to England last week. As to her motivation for her departure to America, I make no findings: it is a matter for the ultimate trial Judge. The arithmetic as to indebtedness, however, speaks for itself; and it is noticeable that it has been accumulated largely during the period of almost 2½ years of these English proceedings which the Husband, by his plea for a stay, seeks now to have stopped in their tracks.

21. In late August 2008, soon after the Wife's arrival in California, the Husband filed applications in the Californian court re modification of spousal support, child support and child custody / visitation. He has also, as I understand it, sought, and possibly achieved, registration of the English maintenance Orders in California. I note in passing that according to paragraph 14 of a declaration of the Husband's Californian attorney, Mr Kibre, spousal support in California is not determined by a computer formula, but rather is awarded as to an amount and duration in the Court's discretion applying a series of factors set out in the California Family Code paragraph 4320, which include the need of the supported spouse for support and the ability of the supporting spouse to pay. That paragraph mandates, he says, that the Court consider the goal that the supported party should be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration (more than 10 years), a reasonable period of time "for purposes of this section shall generally be one-half the length of the marriage. However, nothing in this section is intended to limit the Court's discretion and to order support for a greater or lesser length of time, based on any of the other factors listed in the section, and the circumstances of the parties".
22. Mr Kibre also states that a lump sum payable by way of capitalisation of maintenance is by its nature a non-modifiable order as to future support, and therefore would be against Californian policy and not enforceable under Californian law.
23. The Husband applied ex parte on notice for a court direction that there be a specially set hearing in the Californian court before 20th October, the Monday of this week when the English trial was due to be commenced. The Californian court (Judge Tara Reilly presiding) made no order on that application or generally. I have seen a document entitled 'Minute Orders' which states; "Court has concerns regarding jurisdiction as an action is ongoing in England with a hearing on 10/20/08.". I think it right to record this (English) court's appreciation of what I perceive to have been a decision of Judge Reilly borne, at least in part, of her regard for principles of comity. I strongly believe that her decision was, if I may say so, entirely correct, given that, as I am about to explain, I regard the proper and convenient forum for resolution of financial issues between the parties as being England, not California.
24. So, after that fairly detailed account of the relevant history, I finally arrive at the hearing over which I am presiding, at which it was intended by Ryder J amongst others that a final decision would be made as to variation of maintenance, capitalisation or not, imposition or not of a fixed term for ongoing maintenance, and so on. It was intended, that the position as to the Husband's MatchNet fiscal liability, if any, would by now be clarified (but the Husband has proffered no information at all), and that a decision would be made upon, essentially, the Wife's aspiration for the finality which capitalisation would provide - in recognised colloquial terms, a clean break. It is an understandable aspiration, and one which the Wife is entitled to hold pursuant to the statutory law which prevails in this country and was in place at the time when the divorce proceedings were commenced and the ancillary relief application determined by consent.
25. Unhappily, however, there is an insuperable practical problem, namely that neither the Wife nor for that matter the Husband has complied with the direction as to the provision of updating information. Particularly in circumstances where the Wife has moved with S to California, with all the financial consequences that that must entail, the quantification of variation, whether there is capitalisation or not, would if undertaken in the absence of further and better evidence amount to something too proximate to palm-tree justice. It is difficult to assess the Wife's culpability for the situation, although I am satisfied that there are strong mitigating circumstances. As I have said, I make no actual finding on the topic, but it is hardly surprising on its face that the Wife articulates her financial situation in the mid-summer of 2008 as straitened. No sooner had she had the opportunity to start to settle with S in the environment of California than the Husband opened another front by commencing litigation there, which by itself must have been very stressful for her. My understanding is that in the Autumn the Wife did for a period obtain legal aid in England, Mishcon de Reya having ceased to act for her; and presumably her next solicitors, Hodge, Jones & Allen, would have assisted her in making an up to date presentation of the relevant change of circumstances had that legal aid, in the circumstances and for reasons of which I have no detailed knowledge, been withdrawn. Be that all as is may, the case is not ready for final determination, a fortiori in circumstances where whatever evidence the Wife might have prepared to that end should, elementarily, have been served on the Husband, whatever the culpability of his previous conduct in the proceedings.
26. Accordingly, the Wife's application for variation will, unless I elect in my discretion to stay the proceedings, have to be adjourned, as I have said one final time. As to the application to stay, I have already recounted its timing, which was contrary to the rules of procedure and by itself unfair upon the Wife. If I felt that the application to stay, which, as I have said I am prepared to treat as having the correct technical status, might have merit, the Wife would be entitled to an adjournment of the application, so as properly to prepare her case in resistance to it. However, given that I have reached a clear conclusion that the application has no or no substantial merit, and given the proximity of the next Court hearing in California (3rd November), I have decided to rule upon the application without further ado.
27. It is supported by the affidavit dated 15th October to which I have referred. I have read that document carefully and take all that is said fully into account. The arguments advanced by the Husband include the following. First, the Californian court has jurisdiction; thus it may (not must, but may) entertain the application that I have described. Secondly, in circumstances where the Wife now resides in California, it is the Californian court which is the better placed to reach conclusions about the comparative costs of living here in London and in California respectively, and therefore about the Wife's and S's ongoing needs. Thirdly, the Wife will not suffer prejudice if the English proceedings are stayed, because since the beginning of August the Husband had resuscitated the periodical payments of maintenance in the sum of £3,500 per month. Fourthly, the Californian court will not enforce an English Court Order for the payment of a lump sum by way of capitalisation as being against Californian public policy.
28. In my judgement this presentation is flawed, for against it must be set several cogent considerations. First, I certainly do not agree that the Wife would not suffer no prejudice if the English proceedings are stayed. I have already described how these parties, British citizens albeit of American nationality, were divorced under the law of England, which they both embraced. A clean break between them personally was not practicable: that was agreed. As it transpired, the Husband's share options, treated as valueless in 2000-2001, realised £3,200,000 in 2004. The Court has power to capitalise the Wife's maintenance, and it would be in my view be wholly unfair upon the Wife not to permit her to proceed to a hearing at which the merit or otherwise of capitalisation is determined (and which, absent the Husband's application for adjournment in 2007, would have taken place nearly a year ago). I emphasise for completeness that I do not in any way prejudge that issue either in principle or, still less, quantum. I am aware that within the freezing injunction proceedings the Wife pitched her potential claim at a figure of £1,000,000-£1,100,000. I am also fully conscious of the Husband's assertion that this is a ridiculous level of aspiration, and that as a matter of English law the Wife cannot receive a lump sum award which amounts, in effect, to a second bite of the capital cherry over and above pure capitalisation of maintenance. The court will have due regard to that submission, and will carefully apply to this case such authorities as Harris v Harris [2001] I FCR 68 CA, Pearce v Pearce [2003] 2 FLR 1144 CA and Lauder v Lauder [2008] EWHC 1227 (Fam); [2007] 2 FLR 802. In addition, he has forceful submissions to make as to the Wife's earning capacity and her alleged bad financial management. I have formed no view about these and the related issues; but I am satisfied that in fairness it is an English Court which should proceed to try them. Secondly, I am satisfied that the English Court will be well able to reach a sufficiently informed view about the Wife's change in circumstances, including any adjustment in her financial needs arising from the move to California; and also about her earning capacity there. One has been involved in many cases over the years where such a cosmopolitan exercise has had to be undertaken. It is not ideal, but perfectly manageable. Thirdly, although I cannot predict with certainty how the position will be next year in terms of the legal representation of either or both parties, or the lack of it, I do not see how the Wife is able to finance ongoing litigation in California. As best one can judge it at this stage, it is likely that both parties will continue to act in person before the English Court (although there is no doubt that the Husband could finance the renewal of representation if he so wished). In a phrase, equality of arms is more likely in the English rather than in the American jurisdiction.
29. I observe that I do not know whether the presentation made by the Husband's Californian attorneys would have been challenged by an attorney instructed by the Wife if time had permitted. Specifically, I do not know for certain whether it would be accepted that the Californian court would decline to enforce an Order for payment of a lump sum made in England as being contrary to public policy. In my judgement, however, it does not matter, a fortiori given the absence of any evidence that the Husband's assets are confined to a Californian location.
30. Finally, there is the point that the Husband is in contempt of a series of English Court Orders. There is judicial precedent which would have entitled me, in my discretion, ipso facto to have declined to entertain the Husband's application for a stay; but in the circumstances described in this judgment I have thought it preferable to address the application on its merits. The fact of contempt, however, can of course be taken into account in the balancing exercise which underpins a discretionary conclusion.
31. In the above circumstances, and for the reasons I have expressed, the Husband's application to stay is dismissed. I shall now turn to canvass with the Wife directions designed to facilitate as early and efficient a conclusion of these proceedings, by final trial, as can be achieved. The hearing (estimate 3 days) will be fixed for a date in February 2009. I anticipate with confidence that no Judge will entertain the prospect of derailment of this programme in the absence of reasons that are compelling.