England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		15 April 2014

Sir Peter Singer:

1. This judgment relates to the interlocutory applications in this case, following on from the judgment I handed down on 5 March 2014. The issues upon which the parties concentrated were H's application to vary the maintenance pending suit and legal services orders and to remit the arrears which have accrued thereunder; and the application envisaged in my last judgment and by the order which flowed from it, by W to set aside H's disposition by way of charge of the Bentley motorcar to his solicitors DWFM Beckman ('Beckmans') to secure his costs liabilities outstanding and forthcoming to that firm.
2. At the commencement of the hearing on Tuesday 25 March and without opposition I joined Beckmans as a party, and from the next morning they were represented in court by Mr Patten QC. W was represented as before by Mr Leech QC and Mr Sirikanda. Mr Pointer QC and Mr Wilkinson acted for H. Over 3 days, after opening submissions I heard evidence from H, and from Ms Moussaoui ('SDM') who, although initially consulted in about May 2013, has throughout been the partner at Beckmans acting for H in these financial remedy proceedings since that firm came on the record on 17 July 2013. On Monday 31 March I heard a full day of submissions.
3. This judgment is prepared under considerable pressure, having regard to the fact that the FDR hearing is listed for next Monday 7 April. I have given much consideration to what orders I can conscientiously make and what conclusions it would be safe and fair for me to reach at this still interlocutory stage of these proceedings. I have reached a clear conclusion in my mind as to the outcome and believe that it can be relatively briefly stated. It follows that there is a very considerable amount of detail which was considered in depth in the course of submissions upon which I will not at this stage comment except in the most general terms. It is impracticable for the parties to reassemble in advance of the 7 April hearing to consider the consequences of this decision and where it leaves them, and so this case will continue to be in a state of considerable flux for some weeks yet, at best. For due to follow on 15 and 16 April there is listed before me a fixture when the intended agenda items for consideration (assuming that the FDR is unsuccessful) are whether and what maintenance pending suit and legal services orders should be made in favour of W for the period until the conclusion of the final hearing, set down for 10 days from 27 October 2014. Other issues may vie for inclusion on those 2 days: but thus, it seems, in this case has it ever been.

Matters which have arisen since 5 March 2014

4. On 7 March 2014 H instituted appellate procedures challenging both the jurisdiction and the exercise of my discretion which had led to the order for delivery up of the Bentley to W's agents in France and for its removal to a place in this country where it might be held securely pending determination of the question of its sale. On 11 March 2014 Patten LJ on an ex parte stay application adjourned H's application for permission to appeal to an oral hearing (with appeal to follow if granted), and meanwhile stayed the order for delivery up of the vehicle. This hearing, it now appears, would be unlikely to take place before May.
5. The Swiss proceedings at the instance of RFG have resulted in a letter dated 19 March to H's Swiss lawyer suggesting he agree to arbitration of the claim in Zürich.
6. On the evening of Friday 21 March H was served at his home in France with orders made by the court in Aix and a saisie conservatoire was imposed on the Bentley, his Piper aeroplane, and H's shares in the SCI which owns the château. SDM has taken advice on behalf of Beckmans from lawyers in France as a result of which she expresses herself to be confident that the firm's charge will take precedence over RFG's claim. She expressed no view as to a timetable for putting that to the test. H for his part metaphorically shrugged his shoulders and said that challenging the saisie was a matter for Beckmans rather than for him.
7. Last Friday morning, 28 March, at an inter partes hearing convened at the request of W's advisers Patten LJ^[1] removed the stay he had imposed on the implementation of the order for delivery up, but directed that that should not take place until seven days after the French court lifts the saisie, if such be its decision.
8. It is common ground for the purposes of this application (notwithstanding a modest dispute in relation to one payment not agreed to have been made) that as at 2 April 2014 the arrears under the maintenance pending suit order amount to €76,900, and under the legal services order to £90,000. No payments have in fact been made since the beginning of August 2013 over and above the discharge of W's rent and the €3600 per month child maintenance ordered by the French court.
9. On 5 March Mr Leech told me that W's indebtedness to Sears Tooth stood at £80,000. By 10 April they were in excess of £150,000. The fees outstanding to Beckmans, £103,000 in mid-December, will by now amount to a very significantly larger sum.

A document which has emerged since the 5 March 2014 judgment

10. On 21 March W's solicitors sent to Beckmans a copy they had discovered via an internet search of a judgment of Bannister J in the Commercial Division of the Eastern Caribbean Supreme Court handed down on 8 November 2013 after, it would seem, an earlier hearing on 16 October. The application, ex parte by RFG in the matter of the New Huerto Trust, was for the court to sanction a proposed variation of the identity of the beneficiaries and of the terms of the settlement to exclude H and to make consequential variations. In a full judgment Bannister J gave his reasons for declining to sanction the exercise of the deed in the terms, or substantially in the terms of the draft. But his judgment concluded with these sentences: "If the Trustee considers that the reasoning in this judgment is fallacious, there is nothing to prevent it from executing a deed in the form of the draft and arguing for its effectiveness as against any party concerned to attack it. If it succeeds, no harm will have been done by this Court's refusal of sanction."
11. In fact the deed whereby H was excluded permanently as a beneficiary of the Trust is in the same terms as that disapproved by the BVI court. The notes of the 3 December meeting prepared by RFG and disclosed in these proceedings are heavily redacted to exclude a page and a half of what are said to be excerpts read at that meeting to H and SDM from "a written advice'' from the context presumably from leading Chancery Counsel consulted by the Trustees who had (according to the notes and thus presumably according to what was read out) advised that the Trustees could indeed exercise the relevant powers of appointment to exclude H.
12. In their evidence both H and SDM denied all knowledge of those proceedings and that judgment of which they said they first heard via that letter from Sears Tooth. Were they therefore both subjected to what would be tantamount to a deception practised by RFG (Mr Bennett presiding) in disclosing to them advice which would be inconsistent with the judicial decision reached in the court of the Trust's governing jurisdiction? There could, I suppose, be a possibility that RFG had obtained since the 8 November judgment the opinion of such a silk disagreeing with Bannister J's decision. Or is there in fact some underlying and secret arrangement whereby in due course H might, for instance, rely upon the Bannister J judgment to challenge in that same court and thereby have his exclusion declared invalid, and be restored as a discretionary beneficiary to this Trust? Or might the Protector, Mr Smith, be in a position some day to replace RFG as Trustees by some more benevolent towards H, if in fact RFG are as determined as they present themselves to be in pursuing him for over US $7 million?
13. I should make it plain at once that no one suggests that SDM is or would be a party to what would amount to a conspiracy to deceive this court as to the true position so as to do down W. But the reason I raise such speculations at this stage is to explain why I am at this stage unable to answer definitively if at all what possibly may be the critical question at the final hearing, namely whether H's exile from and pursuit by the Trust and the Trustees is real, or reversible and intended one day to be reversed. What I can do at this stage is to say that I am certainly not prepared, for my part, to exclude an ultimate finding that this has been and remains a carefully orchestrated put-up job performed by RFG with H's foreknowledge and consent, or at least his maybe relatively passive acquiescence.

Some observations on H's evidence

14. The elements of H's evidence and of the way in which he has deployed his case, from first to last (within which I include the ill-fated domicile débâcle), have not thus far helped him to begin to persuade me that he is not driven by hostility towards W and does not harbour amongst his motives a desire to vanquish her financially. Nor am I yet prepared to conclude that many of the sharp and stark inconsistencies (I believe I am justified in referring to them as lies) in his evidence, and the shifts and twists in his position, are all down to vagueness, imprecision and the pressure of being subjected to questioning. Mr Pointer cautions me to bear in mind R v Lucas and not to jump to facile conclusions about the motive for what I might categorise as lies. It is hard though, just by way of example, to suppose any motive other than the (in the circumstances) futile attempt and intent to deceive the court with the overall objective of presenting a false case on domicile for H to lie about when he had most recently seen an about-to-be interposed witness and (more importantly) to assert that they had not discussed the case, for that witness then to recount how it was last night over dinner rather than last weekend at a social gathering and that, yes of course, they had discussed the case.
15. H's evidence on the two days I heard from him last week was again, in my view at this juncture, replete with further examples. So I remain to be persuaded that he is the victim of permanent exclusion at the instance of RFG, led by his long-term confidant and adviser Mr Bennett, and truly and validly divorced from access to any of the benefits of the £70 million or thereabouts which are the fruits of his business endeavours, now held within the New Huerto Trust. Nor do I yet accept as genuine RFG's expressed intention (now indeed set in train) to pursue H in every relevant jurisdiction to recover the equity standing to his name in the Bentley, the Piper aircraft, land in Zermatt and the loan due to him from the SCI which owns the château where he continues to live, unless it be to remove those assets at least for the time being from the risk of depredation by court order.
16. That being so, it seems to me that I need not burden this judgment with any extensive recitation of the shortcomings in H's evidence on this occasion, which no doubt can be reprised for future consideration when material in due course.

The section 37 application

17. This was commenced by application issued on 10 March 2014 and is supported by a witness statement made by Miss Kelly Edwards of W's solicitors on the same day. In response both H and SDM made statements which are dated 19 March. The relief sought is an order setting aside the deed dated 13 December 2013 relating to the Bentley. As will emerge, the better view may be that the disposal was effected orally and already at an earlier juncture, during the course of a three-way consultation call with Mr Pointer on 27 November 2013. For reasons I shall give I am satisfied that nothing turns on this but that in any event the date on which the state of mind of H on the one side and SDM on the other are to be so far as possible ascertained is that earlier date.
18. The first element necessary to give rise to the discretionary power to set aside conferred by section 37(2)(c) of the Matrimonial Causes Act 1973 is for W to establish that the disposition, unless set aside, has the effect of "frustrating or impeding the enforcement of any order which … has been made" at her instance under section 22 of the Act. A legal services order made (as was the case here) since the introduction of section 22ZA of the Act is not for this purpose material, and so it is the enforcement of the maintenance arrears which is in question.
19. As to this, it is the fact that as at both 27 November and 13 December W's application seeking enforcement of the arrears stood adjourned with liberty to restore as a result of the arrangements reached at court on 12 November. As at 12 November the value of the Bentley (which I assume for present purposes and in the absence of any firmer evidence than what H relates is of the order of £470,000) was part-charged to EFG, but once the bank recouped its outstanding loans against the Trust assets held by way of back-to-back security on 15 November the vehicle became potentially targetable as the object of a resumed enforcement application, had W known so at that date.
20. Mr Leech is also in my provisional view correct^[2] to point out (although the point was not taken until during the course of this last hearing) that an alternative remedy available to W would have been to seek an order for sale of the Bentley under section 24A of the 1973 Act, subsection (1) of which specifically provides that at any time after the making of (inter alia) a section 22ZA legal services order the court may make a further order for the sale of property in which either party has a beneficial interest. But more of that hereafter.
21. Once however H had disposed of the vehicle to Beckmans to the extent to which he did, it can be seen that at the very least W's prospects of enforcing the order against the Bentley would thereby be significantly impeded. True it is (as SDM was I think the first to point out in the course of last week's hearing) that (on my assumed valuation) more than £300,000 of equity remained unconsumed after allowing for Beckmans' costs to mid-December, but that would be and has since been significantly eroded by further legal costs subsequently incurred.
22. I do therefore conclude that this first requirement is established. That being so, section 37(5) is engaged. The disposition took place less than three years before the date of the set aside application, and thus it is "presumed, unless the contrary is shown, that the person who disposed of … the property did so … with the intention of defeating the applicant's claim" in the sense of frustrating or impeding the enforcement of the order for maintenance pending suit which she has obtained.
23. Has H on the evidence before me succeeded in displacing the presumption? The burden of his written and oral evidence was to emphasise how on 27 November he had just been notified of his permanent and purportedly irrevocable exclusion as a beneficiary of the Trust. He was overwhelmed by that, following so swiftly upon the earlier hammer blow that after a period of dithering EFG had pulled the rug from under his CHF 20 million loan facility (or was it CHF 25 million as per the apparently clear letter from the bank dated 20 January 2012 which H however asserts does not mean what it appears to say). He was in France and a three-way telephone conversation with Mr Pointer was swiftly arranged.
24. H has maintained his undoubted privilege in relation to what transpired during that call and indeed his legal professional privilege throughout, and I am not entitled to draw inferences from that stance nor as to what was said and what advice may have been given. But it is clear that the plan that resulted was that H and SDM would attempt to arrange and then attend a meeting with the Trustees (and, in the event, with H's friend and the Trust's Protector Mr Smith) in Hong Kong.
25. At some stage during the consultation the question of H's outstanding unpaid fees to Beckmans, just short of £100,000, was raised and the suggestion made that the Bentley, now free from charge, should be charged in relation to those outstanding costs and the costs yet to be incurred.
26. The evidence of both H and SDM was that she rather than H made the suggestion, to which he agreed. I do not know whether that was an agreement only in principle, nor with what degree of detail it was fleshed out. H says that the need to provide security for his legal team's costs was his "primary concern."
27. I accept the submission that it was at this meeting that the relevant disposition in relation to the Bentley took place. The elements of offer, acceptance and consideration were all made out. Moreover I accept the evidence of SDM that she regarded H, and the Bentley, as bound from that point on, and in reliance on that allowed H to incur further costs so that by 13 December 2013 they had risen to something over £103,000, as evidenced by the deed of charge she had prepared and submitted in advance to H for him to consider before executing it as a deed on that date. The document's opening words are "In accordance with the oral agreement made between us on 27 November 2013 and in consideration of your continuing to act for me when I am unable to pay your fees as they fall due and in acknowledgement of the sum of £103,381.09 currently due to you at the date of this letter to ensure that you shall be fully secured…"
28. H in his evidence suggested that he never was sent a draft of that deed and the first time he saw the document was on the occasion in Beckmans' offices when he signed it on that day. I prefer the evidence of SDM as to that, and note (and draw the same conclusion as to) H's assertion that that was the first time he became aware of the suggestion (because the deed recites that he was agreeing that he had) that he should take independent legal advice which (he told me) he had not done, but which (she inadvertently told me) he had assured her he had.
29. It is not sufficient that H's primary intention may not have been to defeat W's claims (in the way in which that is spelt out in the section). The authorities make clear that a subsidiary intention, one amongst another or other mixed intentions, is sufficient relevant intention upon which the section and the power to set aside may operate: see Kemmis v Kemmis [1988] 2 FLR 223 referred to in Mostyn J's more recent and helpful formulation of the requirements in Kremen v Agrest [2010] EWHC 2571 (Fam), [2011] 2 FLR 478 at [9] to [11].
30. I am simply not satisfied on H's evidence that on 27 November no material part of his motivation was a desire to make it more difficult for W to look to the Bentley for enforcement purposes, if not indeed to frustrate her entirely should she follow that route. The presumption therefore bites.
31. Thus do we arrive at the last hurdle before the power to set aside can arise. Section 37(4) excludes from review any disposition "made for valuable consideration (other than marriage) to a person who, at the time of the disposition, acted in relation to it in good faith and without notice of any intention on the part of the other party to defeat the applicant's claim for conventional relief." Beckmans gave valuable consideration and no suggestion is pursued that SDM participated in the arrangement in bad faith. But did she (and through her Beckmans) have notice of the intention (albeit maybe only partial) of H to frustrate W's claims in the manner described?
32. Drawing again on Mostyn J's Kremen v Agrest formulation, he said on this issue at [10] and [11]:

10. The knowledge of [the third party] referred to in para 9(iv)(c) above is not confined to actual knowledge but extends to constructive knowledge: see Kemmis v Kemmis; Sherry v Sherry and Another [1991] 1 FLR 307, CA; Le Foe v Le Foe and Woolwich plc; Woolwich plc v Le Foe and Le Foe [2001] 2 FLR 970. The test for constructive knowledge is well known and derives from the statement of Farwell J in Hunt v Luck [1901] 1 Ch 45:

Constructive notice is the knowledge which the courts impute to a person upon presumption so strong of the existence of the knowledge that it cannot be allowed to be rebutted, either from his knowing something which ought to have put him to further inquiry or from his wilfully abstaining from inquiry, to avoid notice.

11. Although there is a formal legal burden on W to demonstrate the negative of the matters referred to in para 9(iv) above I take the view that for obvious reasons (having to prove a negative; lack of knowledge) there is an evidential burden shifted to [the third party] to establish this exception. If he does not establish all three limbs of the exception then the defence will not arise.

33. Although Bowen LJ in 1885 made the famous observation (in the different context that a statement of present intentions can amount to an actionable misrepresentation: see Edgington v Fitzmaurice (1885) 29 Ch D 459) that a man's mind is as much a fact as the state of his digestion, the terrain to be traversed to ascertain whether his solicitor had either actual or constructive notice of H's actual or imputed malign intention is as corrugated as a cerebellum.
34. I was given very ample assistance and instruction upon the authorities relevant to this endeavour, and regret that time precludes me from listing and from commenting upon them. But I have taken them and their guidance all into account.
35. The extra wrinkle in this solicitor-and-client situation is that I and SDM both must operate through the double-bind (or perhaps more appropriately the double-blind) of H's entitled assertion of legal professional privilege.
36. SDM tells me that she did not know nor was she put on actual notice that H's motivation included what I have described as the malign element which the statute presumes and which I have found he has not displaced. But she is not entitled to tell me nor am I entitled to enquire what was said in that telephone conversation on 27 November, because the privilege is for H to waive if he will and he has not done so. I am not entitled to speculate about what might have been said nor even to make what I hope would be intelligent assumptions about what might well have been said.
37. By 27 November 2013 SDM had had and no doubt had taken the opportunity during the months she had then been acting for H to become aware of the issues and of much of the detail in the case. She was present at the hearing on 12 November when Mr Sirikanda represented W, and I eventually agreed to the discharge on terms of the freezing injunctions in the hope that to do so would encourage EFG to restore the loan facilities. She would have heard the case against H pitched on the basis of profound disbelief about the truth of his presentation of his problems with the loan, and grave suspicion that he and RFG were in cahoots to bring down the shutters (as Mr Leech described it) and to put up a smokescreen to occlude and hamper investigations into H's relationship, past and present, with the Trust.
38. So much, as to her state of knowledge of W's case, SDM of course accepted. But her evidence is that she, as a professional who is an officer of the court, adopted what she regarded as a suitably circumspect attitude to what H said to her.
39. She it was who raised the issue of Beckmans' fees and how they would be paid both as to those already incurred, and those which would be incurred including the very proximate expense of travelling to Hong Kong for a meeting with RFG if indeed one could be organised. She it was, she said, who suggested a charge over the Bentley as the solution. The discussion concluded leaving her confident that she had an agreement upon which she could rely to secure her firm's fees.
40. Clearly she did not regard herself at that point as in a situation where she lacked any relevant element of knowledge, nor was there any aspect of doubt in her mind about the transaction such as would have made it obvious that she should consult some third-party (as was the position in what I agree with Mr Patten was the significantly different situation faced by the solicitor Mr Butcher in Sherry v Sherry [1991] 1 FLR 307, CA). Therefore she could not and should not be fixed with constructive notice of H's intention by virtue of any failure on her part diligently to enquire further into the nature and effect of the proposed transaction.
41. I have no evidence upon which I could form the conclusion that I doubt what SDM says, or indeed that I disbelieve her. And, I repeat, it is her state of mind which is the issue.
42. It is true that the very next day a letter arrived by fax from Withers the solicitors then acting for W in which they suggested that steps should be taken jointly to sell the Bentley and put part of its proceeds towards the arrears. I do not propose to trace in this judgment the lengthy sequence of events which resulted in that suggestion being ducked and indeed an eventual unsatisfactory explanation being given as late as by letter dated 30 January 2014, which was a full six weeks after the Deed had been executed to formalise and maybe indeed to flesh out the previous oral agreement which constituted the disposition. The Bentley was in that letter said to be in France and "perfectly safe."
43. One can therefore well understand what might well have been a sense of outrage for Sears Tooth when after 5 PM on the next day, a Friday, there arrived by fax a letter from Beckmans' senior partner baldly announcing that the firm claimed a priority interest in the vehicle. No copy of the deed was supplied until 3 February, only one clear day before a very relevant hearing before me which commenced on 5 February.
44. Undoubtedly opportunities were missed to disclose what was undoubtedly a disclosable arrangement and a disclosable document. Some of the delay was no doubt contributed to by SDM's sudden and anticipated absence from her office on account of a family bereavement. She was away from 16 December until 8 January and had, before her rapid departure from the office, been about to dictate a separate letter dealing with the arrangement concerning the Bentley.
45. But I must say that as I understand it I do regard the delay as prima facie lamentable. Here once more, though, I must proceed with caution, for it is at least possible that SDM cannot give a fuller explanation of this ex post facto suspicion-inducing reticence because to do so might invade her client's privilege.
46. What however must be right, and is of far greater relevance to the issue I must determine, is that that reticence does not have the effect of informing me better or differently as to SDM's actual or more particularly her constructive state of notice at the critical time, on the afternoon before that letter on 28 November arrived from Withers. I am not prepared to infer from this subsequent sorry sequence that SDM had notice of H's intention to defeat W's claim.
47. So, to adopt again Mostyn J's exposition, in my view and as I find and accept SDM has satisfied the evidential burden which in practical terms is upon her, and that W has not succeeded in dislodging her from that position.

How I would have exercised the discretion

48. Had I found that SDM and through her Beckmans were fixed with constructive notice of H's presumptively malign motive then I would have had to consider the point raised by Mr Pointer and touched upon by Mr Patten: whether the fact that this was a disposition in effect by way of guarantee of payment of legal fees to the firm for their services as solicitors should affect the exercise of discretion which would then arise whether or not to set aside the disposition.
49. It is self-evident that every payment by a spouse to their legal advisers has the effect of diminishing the pot of assets subject to the court's distributive powers on a financial remedies application. It is also the case that in the ordinary case no embargo prevents the making of such payments as the applications proceed and the costs mount, nor indeed inhibits a party from putting their solicitor in funds by advance payments on account. So far as H is concerned, it happens that from May until 12 November 2013 there was a ceiling imposed on his ability to fund his lawyers by the terms of the injunctions and enforce, but since then no such inhibition has been in place. And we know that by the end of that month he already owed Beckmans about £100,000.
50. It is therefore easy to conclude that although section 37 is wide enough to strike at a client-to-solicitor disposition such is by no means a usual case, nor would it be practicable to regard every such disposition as potentially reviewable within three years unless the payer and the payee can establish via a detailed enquiry conducted as above that the client did not intend to defeat the other spouse's claims and that (failing that) the solicitor had neither actual or constructive knowledge of that constituent of the client's intentions.
51. The solution to this might be that in the ordinary case courts might make it clear that they would not normally exercise their discretion to set aside such transactions. That said, I have to say that in this case I would have set aside the transaction. For I take the view that it is unconscionable that H should be in a position and in effect have a blank cheque to fund his lawyers fully to the hilt of the Bentley's value. On the other hand W and her present lawyers are respectively left without the ability to offer and to receive security for the rising costs, which in present circumstances she has little option but to continue to incur so long, obviously, and so far as they are reasonably incurred, and her lawyers are prepared to take the risk of non-recovery.
52. It is therefore in my view a matter of regret if in the particular circumstances of the case and of this chattel's charge no relief is available to W which would mitigate this gross inequality of arms and might moreover provide more equitably for the day-to-day needs of each party.

Might an order for sale under section 24A provide W with a potential remedy?^[3]

53. However, section 24A of the Matrimonial Causes Act 1973 may be a route whereby the sale of the Bentley might be ordered. But that could only be done after an adequate opportunity for submissions as to the law and on the facts. Mr Pointer objected to the late introduction of consideration of this provision for which no formal application had been made. That objection clearly was well made and must be remedied if W decides to initiate and pursue such an application. That in turn will have timing implications as, self-evidently, it would be impracticable for that application to be ready to be heard when the case is next due before me on 15 April, given that the intervening steps necessary could not in practical terms be initiated until after next Monday's FDR.
54. I can and do not of course express any concluded view upon the applicability far less the outcome of that application if pursued. But if it is open to me and I do adopt it it would have the potential to bring about a more equitable situation as between H and W, and might render less steep the incline afflicting the current playing field.
55. Relevant considerations might include the following:

The Bentley is "property in which or in the proceeds of sale of which either or both of the parties to the marriage has or have a beneficial interest", as required by section 24A(1).

The section would enable an order for sale of the Bentley to be made in relation to the section 22ZA legal services order under which £90,000 remains due and owing to W.

In deciding whether the court should order sale it is enjoined by subsection (6) to give third parties with a beneficial interest in the vehicle or its sale proceeds an opportunity to make representations, which it must then consider in addition to the circumstances set out in section 25.

Not only Beckmans but also RFG should have the opportunity to make representations: RFG in the light of the 30 August 2010 "formal counter-indemnity letter" executed by H in favour of the Trust, described at [20] of my 5 March judgment.

Pursuant to section 24A(4) a direction might be appropriate that any order for sale should not take effect unless and until the saisie conservatoire is lifted by the French court. In that regard further consideration may need to be given to the question whether, and at whose instance, it might be argued in that court that my 5 March order for its delivery up to W's agents, made prior to the imposition of the saisie, should lead France to defer to England's jurisdiction over the vehicle.

A question might arise (upon which they may well wish to be heard) whether Beckmans should be joined as a party to the section 24A application pursuant to the provisions now contained in FPR 9.26B (which will be applicable if a section 24A application is a form of proceeding for a financial remedy).

Questions may arise as to the extent of the court's directive powers in relation to the parties' future participation in French proceedings relating to the Bentley.

H's variation claim

56. H issued his application on 31 January 2014. His Application Notice seeks an order varying the maintenance pending suit order I made on 12 June 2013 on the basis that "the banking facility with EFG through which the respondent was meeting his obligation has been withdrawn by the bank. The respondent is unable to meet the obligations upon him under the 12 June 2013 order and therefore seeks a downward variation." In his affidavit in support H acknowledged that all but £30,000 of the £120,000 legal services order remained unpaid, the final payment in fact falling due on 2 February 2014. As to maintenance, he acknowledged €59,100 arrears as at the same date, which by now will have increased by €17,800 to €76,900.
57. In his supporting statement, expanded upon in his oral evidence, H has recited the history of EFG's foreclosure, gives details of his borrowings from family and friends on which he says he depends to meet his personal expenditure and to continue to cover the €5800 per month he pays out for W's monthly rental and the French child maintenance order, and emphasises the dire straits in which he finds himself.
58. Without any point being taken, this application has proceeded on the far more expansive basis that as well as relieving H of all but an obligation to continue paying €5800 on an ongoing basis I should remit the arrears; and that I should discharge H from his liability to pay the balance of the legal services order.
59. As before, all might be thought to depend upon an ultimate decision whether H really finds himself inescapably between a rock and a hard place so far as the competing demands and intransigence of RFG on the one hand, and the need to support his case with documents and other evidence access to which he says he does not have and which is denied him by those who do have.
60. Another perspective on H's presentation that he has been on his uppers since mid-November might be gleaned from what can be gathered about his lifestyle and credit card expenditure from the end of November onwards. This included travelling (at what may have been very modest cost, albeit from a source which was not readily apparent in the documentation) to and spending the week of Christmas at what had been the parties' principal home before they moved to France in 2010, a villa in Bequia owned by a company within the Trust. His explanation that he went there, with the inference that it was involuntary, at the behest of Mr Bennett to clear out the property but found on arrival that a few clothes apart there was nothing to be cleared, may of course have some substance for all I know, but certainly did not ring at all persuasively when H volunteered that explanation.
61. That apart, it is certainly the case that in my 5 March judgment I wrote at [8] that: ''on the information that is available H's ability to meet these payments depended upon the continuation of his arrangements with the Trust and EFG." Thus I do accept that the current reality, or at least its presentation, is that without recourse to EFG or other significant bank lending or to any facilities afforded him by the apparently implacably hostile RFG he has no immediately obvious resource from which he can reduce the arrears which have mounted under last June's order.
62. This situation may not however persist, whether in the short or the long-term. H may yet bring to fruition the sale of his Piper aircraft which he is free to pursue (under the terms of current orders which should continue until the impact of this judgment and the orders which should be made consequential upon it can be considered at the next hearing after next Monday's FDR).
63. H may also discover that his entrepreneurial skills are as valuable as RFG described them to be when, at the 3 December meeting, the prospect of the Trust employing him (but not yet) was canvassed and noted. H's lack of enthusiasm for even considering mitigating his situation by some sort of employment characteristically included reliance on advice he said he had received (but of which he was not prepared but quite entitled not to divulge the detail) from Monégasque lawyers to the effect that he should not become employed in France. Of course I do accept that it is unrealistic to expect him to go out and get a job between now and October's final hearing, and that for all sorts of more compelling reasons than his desire to avoid shadowily adumbrated adverse fiscal complications.
64. I would not be disposed at this stage of these proceedings to relieve H of the responsibilities which the 12 June 2013 order imposed on him and which at that time from the resources available to him he could well meet. He is a man who has apparently so ordered his affairs as to distance himself from the overwhelming bulk of the capital he has created. Typical were his comments made in the course of this hearing that he had only ever had available to him, and that only until the decision was taken to move to France, the income and the bonuses he earned while CEO of Low Cost Aircraft Leasing Inc. The millions of pounds in the Trust represented not his but that company's money, he suggested. This is in stark contrast to the position apparently realistically adopted on his behalf after the collapse of the domicile trial that the Trust assets should for financial remedy purposes be regarded as available to him, in effect on request.
65. It will cause no hardship in practical terms if I defer making any order on H's variation application until it becomes clear whether W decides to embark upon the section 24A route, and (subject to events along that way if it is taken) pending its outcome. If the Bentley or its proceeds are brought within W's target area, then (as indicated above) consideration can be given to how that then available resource can be equitably distributed amongst the claimants in accordance with their need and their desserts.
66. I will however say that the order which I would otherwise be disposed to make at this stage in relation to the 12 June 2013 order and these arrears (both of maintenance pending suit and for legal services) is a) under section 31 of the 1973 Act to suspend the provisions of the order for maintenance pending suit pending the making of any order for its revival, but not at this point to remit arrears (preferring to leave them as a factor for consideration at the final hearing if then relevant); and b) to make a similar order in relation to the unpaid balance of the legal services order. As to the latter I observe that section 22ZA(8) contains a power to vary a legal services order on material change of circumstances. I heard no argument upon the point but it did seem to be accepted (and indeed it was urged upon me by Mr Pointer) that I could and should discharge H's liability for the six unpaid instalments and/or remit them as arrears. I am therefore prepared to assume that in this instance the word "vary" connotes also the variants of discharge, suspension and indeed revival and remission spelled out more compendiously in the parallel sections 31(1) and 31(2A).
67. I will once again adjourn with leave to restore W's application originally issued on 7 November and adjourned on 12 November last year whereby she sought to enforce the order and for Hadkinson-type relief in relation to what was asserted was H's contempt.

Other matters

68. No doubt the parties will keep under consideration whether in the light of this judgment the extant 5 March order for delivery up of the Bentley should stand. If all agree I would of course be prepared to discharge that order by consent, which might well render its proposed appeal moot.
69. I mention simply for the sake of completeness that SDM's undertaking on behalf of Beckmans in relation to the Bentley's DVLA certificate remains in force, as do the orders and arrangements set out in paragraph 5 in relation to the aircraft.

Note 1   The neutral citation of Patten LJ's judgment is [2014] EWCA Civ 520. The permission application referred to in [4] above and any appeal cannot be accommodated by the court before 2015.    [Back]

Note 2   We were both however plainly incorrect. No effective order for sale under section 24A would be available at this juncture, as decree absolute is a prerequisite: see s. 24A(3).    [Back]

Note 3   See the preceding footnote for the reason why the consideration given to MCA 1973, s. 24A in [53] to [55] is inapposite.    [Back]