Mubarak v Mubarak & Ors

A financial order providing for remaining claims to be dismissed upon full payment of a lump sum does not dismiss those claims before payment. They remain available unless the relevant power has already been exercised. An order under the Matrimonial Causes Act 1973 directing delivery up and sale of assets, made against a husband personally on a concession that trust assets were his, is not a property-adjustment order and does not vary a post-nuptial settlement. Enforcement methods do not make an order once-and-for-all where finality was conditional on payment. An arguable jurisdictional point should not be excluded because of misconduct, but no such point existed here.

Mr Iqbal Mubarak sought permission to appeal part of an order made by Holman J on 5 April 2007 in long-running financial proceedings involving his former wife. He argued that Bodey J’s order of December 1999 had either varied the IMK Trust post-nuptial settlement, exhausted the relevant statutory power, or constituted a once-and-for-all capital order. He also relied on the slip rule.

Holman J had held that the earlier order neither exercised nor finally dismissed the power to vary the settlement, and that the power remained available until the lump sum was paid. The central issue before Wall LJ was whether those arguments disclosed an arguable point of law or jurisdiction warranting permission to appeal.

The renewed application for permission to appeal was refused.

1. Jurisdictional threshold. Wall LJ treated the proposed grounds as points of law concerning the court’s jurisdiction under the Matrimonial Causes Act 1973, rather than challenges to the exercise of discretion. Misconduct could not, by itself, exclude an arguable jurisdictional point. However, the application disclosed no arguable point of law.
2. Construction of the order. The December 1999 order had to be construed by reference to its operative terms and relevant surrounding circumstances. Its structure showed that the wife’s remaining claims were to be dismissed only upon full payment of the lump sum. Until payment, those claims remained alive unless the relevant power had already been exercised.
3. Nature of the earlier orders. Bodey J had proceeded under section 24A of the Matrimonial Causes Act 1973, relying on the husband’s concession that the trust assets were to be treated as his. Orders for delivery up and sale of chattels, made against him personally, were enforcement orders and were not property-adjustment orders or variations of the post-nuptial settlement.
4. Finality and the slip rule. The earlier order was not a once-and-for-all capital order. The power under section 24(1)(c) had neither been exercised nor deliberately declined. The authorities Dinch v Dinch and Carson did not require a different result. The slip-rule issue was immaterial once the order had been properly construed; the slip rule could not be used to introduce second thoughts.
5. Delay and estoppel. The husband could not rely on his own prolonged refusal to pay, or on the wife’s mistaken earlier belief that she could not seek variation. No estoppel arose because he had suffered no detriment.
6. Foreign enforcement. The English court endorsed the concern that trust legislation should not enable a manipulative spouse to evade enforcement of a carefully considered financial order, while recognising that the response of the Jersey courts was a matter for them.

• Court of Appeal (Civil Division): Thorpe LJ refused permission on paper on 21 May 2007. The application was renewed orally before Wall LJ, who refused it on 17 July 2007.
• Principal Registry of the Family Division: Holman J made the order dated 5 April 2007, concerning the continuing availability of variation of the IMK Trust post-nuptial settlement.