England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice
		19th September 2014

MR. JUSTICE MOSTYN:

1. This is the restored application for enforcement. I refer to my previous judgments ([2014] EWHC 537 (Fam), [2014] EWHC 1801 (Fam), [2014] EWHC 2032 (Fam). There has been some activity in the Court of Appeal. The previous order I made for periodical payments, which I re-characterised as a court directed, scheduled, part-payment of the overall lump sum, has been appealed to the Court of Appeal. In addition, my pound for pound order, where I followed scrupulously the decision of Mr. Justice Bodey in Mubarak v Mubarak, has also been appealed. The Court of Appeal has granted permission in relation to these various appeals and has stayed any enforcement of what Mr. Warshaw would say is still an illegitimate periodical payments order but which I would contend is a direction as to part-payment of the lump sum order. The Court of Appeal has, as I say, stayed enforcement under the Debtors Act of that order. The appeals are going to be heard later this year.
2. I have to say I am frankly extremely surprised that Lord Justice McFarlane gave permission to appeal in relation to the pound for pound order, where Mr. Warshaw candidly tells me he is going to challenge the correctness of the decision of Mr. Justice Bodey, one of our most experienced financial judges, but there we are. We will have to await to see what the fates of those appeals are.
3. It seems to me that, in relation certainly to the dispute about the periodical payments order which I have re-characterised as a part-payment of the outstanding sum the appeals are a complete dead letter, for reasons which I will explain.
4. According to para.10 of Mr. Warshaw's note for today, as at February £681,679 of principal of the lump sum was outstanding. I have asked Mr. Warshaw has been paid off since February and he initially told me £100,000, but I pinned him down and in fact it seems that the correct figure is around £33,000. This is by taking the aggregate of the payments at p.275H, which deals with the payments since 1^st April, and adding on a further £8,000 or two months' worth for the months of February and March. Therefore Mr. Warshaw has conceded that of the principal at least £600,000 is outstanding, although he sought to back-track from that concession saying that that was not an unqualified concession. It was a concession made for the purpose of the general enforcement proceedings but in any lump sum proceedings, consistently with his client's instructions, he will take every technical point he could think of (and he has not actually told me if he has thought of any) to challenge the figure that derives from his own document, that at least £600,000 of principal is outstanding today.
5. If £600,000 of principal is outstanding today that is payable today. So in a sense my endeavours to get Mr. Mann to focus on the amount that needed to be paid to save Mrs. Mann from eviction and bankruptcy can be seen to have been, to an extent, an exercise in beating the air, because not only were they in a sense completely otiose - because if he owes £600,000 then ex hypothesi he owes £100,000 - but the consequences of my endeavours to focus Mr. Mann's mind on almost a moral obligation to prevent his ex-wife being rendered homeless has simply led to an explosion of appellate litigation, all of which I consider to be quite spurious.
6. So I shall leave the appellate proceedings to run their course, but would simply in this judgment make it abundantly clear that, irrespective of the question of interest (as to which Mr. Warshaw seeks to take points under s.24(2) of the Limitation Act 1980); irrespective of the question of whether the asserted compliance by Mr. Mann with the compromise that was thrashed out in mediation with His Honour Clive Callman, should or should not lead to remission of all or part of the interest, there can be no doubt that as at today the husband owes around £600,000, probably £650,000 (being Mr. Warshaw's £681,679 less the £33,000-odd that has been paid since February) in principal to Mrs. Mann. That sum is payable today and I see no reason at all why at the next hearing Mr. Mann should not show cause why he should not be imprisoned for failing to pay that sum of principal or part of it.
7. If he has paid part of it by the time of the next hearing then that will no doubt provide strong mitigation. Of course, in any enquiry under the Debtors Act, the court has to be satisfied that Mr. Mann is in wilful default and there will have to be a close enquiry as to whether his circumstances are as desperate as he says in the affidavit which he made on 21^st July pursuant to my previous order.
8. I have to say this, that although the definitive enquiry into the state of Mr. Mann's means is awaited, I have to say that having read the affidavit made in response to my previous order, I believe it is certainly possible - and Mrs. Mann will have to reflect on this - that she is clutching at straws in believing that there is hidden wealth in the property, Flat 3 47 Eaton Place, or within the loan facility with United Capital or in secret bank accounts.
9. In relation to Eaton Place, Mr. Mann has given what seems to me a plausible explanation as to how he was effectively foreclosed in relation to his interest in that property. He has given what seems to me to be a reasonable explanation in relation to his loan account with United Capital and how that has now run into a cul-de-sac. In relation to the allegation that he has a secret bank account from which he is paying rent, he has, to my mind, quite persuasively explained how that suspicion is unfounded. The rent was not in fact paid in full but the deposit was appropriated, leaving arrears in respect of which his girlfriend was either bankrupted or made herself bankrupt.
10. He has also in his affidavit explained his dire medical condition, which is supported by the letter from his doctor, and it does seem to me that it would be an extreme example of cutting off his nose to spite his face if he were not to reveal secret funds, as part of his feud with Mrs. Mann, at a time where he is facing such acute medical problems.
11. Those are only impressions of mine at the moment and, as I say, in circumstances where it is indisputable, on the basis of the concessions made by Mr. Warshaw, that around £650,000 in principal is outstanding, there will have to be an enquiry at the next hearing where Mrs. Mann can cross-examine Mr. Mann as to whether he has been in wilful default in paying off that sum of principal or any reasonable part of it by the time of that hearing.
12. That will be the first function of the next hearing, which is going to be listed for two days on dates to be obtained from the Clerk of the Rules, to be heard this term on dates which are convenient to counsel, provided that it is this term. Put another way, I am not prepared to allow the convenience of counsel to take the next hearing beyond this term, and when I say "this term" I mean the term that begins on 1^st October.
13. The other purpose of that hearing is to establish the exact amount of principal and interest that Mr. Mann owes Mrs. Mann. For this purpose there needs to be a determination by the court of the precise amount of the principal, in circumstances where, as I have said repeatedly, Mr. Mann accepts that he owes around £650,000 but Mrs. Mann says it is rather more. There needs to be a determination of what the actual interest at judgment debt rate has accrued since then. There needs to be a determination of whether any part of that interest is unenforceable by virtue of s.24(2) of the Limitation Act 1980. Then there needs to be a determination of whether any part of the interest, or principal for that matter, should be remitted in the exercise of the court's discretion.
14. In that regard, Mr. Mann places considerable emphasis now on the fact that he did in numeric terms pay the compromise that was reached before His Honour Clive Callman. He says numerically he paid it, he just did not pay it on time. To which Mrs. Mann, to my mind, makes a compelling riposte, which is that had he paid the sums due under the compromise agreement at the due time she would have bought a house. She was not able to buy a house and the payments subsequently made only went to pay rent which is, of course, lost/dead money, the result of which is that, although the monies may have been paid, she has not at the end of it got a house. So it seems to me that the force of Mr. Warshaw's argument is considerably undermined by that good point made by Mrs. Mann.
15. I expect Mrs. Mann and Mr. Warshaw to agree the necessary directions for the determination of the amount that is owed. Mr. Warshaw and I have had a dialogue about that and I approve the scheme that he has put forward. It just needs to have its Is dotted and Ts crossed. If there are any difficulties about that I will rule on them.
16. Those are my rulings.
__________