Thacker v Thacker

In ancillary-relief proceedings, a request to adjourn for alleged ill-health is a matter for case-management discretion. The judge must assess the request in context, including the timing and quality of the medical evidence, previous defaults, likely delay and prejudice. A financial award may be tested against a sum proposed by the applicant, provided the judge first asks what outcome is fair and does not reverse the burden of proof. Poor disclosure may make it legitimate to require the respondent to explain why the proposed figure is unaffordable or unfair. Trust assets may be treated as part of a party’s resources where the evidence establishes de facto control. Permission to appeal should be refused where the proposed grounds have no real prospect of success.

The former wife obtained an ancillary-relief order in the High Court, Family Division, requiring her former husband to pay a lump sum of £2 million and costs. The judge also made a freezing order and preserved a possible application concerning variation of a Jersey settlement. The husband sought permission to appeal against both orders.

He had not attended the substantive hearing. Shortly before it began, medical material was produced in support of an adjournment request. He also challenged the judge’s use of documents obtained from his bank, the quantification of the lump sum, and the attribution of assets held through an employee benefits trust. The central question was whether any proposed ground of appeal was arguable and had a real prospect of success.

Wilson LJ gave the leading judgment and Maurice Kay LJ agreed. Permission to appeal was refused in both applications because the proposed grounds disclosed no real prospect of success.

1. The refusal to adjourn was within the judge’s discretion. A request based on alleged ill-health had to be assessed in context, without a cynical assumption of bad faith. Relevant matters included the hearing date having been fixed long in advance, the delay that a further adjournment would cause, the husband’s history of non-compliance and inadequate disclosure, the timing and limited nature of the medical evidence, and the surrounding correspondence and conduct.
2. The complaint about the bank documents disclosed no arguable procedural unfairness. The husband had been given notice of the documents and an opportunity to consider them. Applying the guidance in Jolly v Jay [2002] EWCA Civ 277, the wife’s solicitors were entitled to write to the Court of Appeal in response to the argument advanced on the husband’s behalf.
3. The judge had asked the neutral question of what outcome was fair. The wife retained the burden of establishing her case. In the circumstances, however, it was legitimate to test her proposed figure of £2 million against all the circumstances, particularly the short marriage and the creation of much of the husband’s wealth before the marriage and after its breakdown. No error of methodology was shown.
4. The judge had directed himself correctly by reference to Charman v Charman [2007] EWCA Civ 503. The bank documents demonstrated the husband’s de facto control of the trust and his attempts to present his financial position inaccurately. It would have been perverse not to attribute the trust assets to his resources.

The applications were refused.

1. Court of Appeal (Civil Division): In Thacker v Thacker [2007] EWCA Civ 912, permission to appeal against the ancillary-relief and freezing orders was refused.
2. High Court, Family Division: Bennett J made the ancillary-relief order and collateral freezing order on 25 May 2007.