Thursfield v Thursfield (Re Delay)

Delay in seeking relief will not necessarily bar proceedings where there remains a practical benefit to be obtained. The court must assess the explanation for the delay, the circumstances in which the need for English relief arose, and whether the proceedings can still achieve a useful purpose. Dissipation or concealment of assets does not by itself make proceedings futile where assets, including pension assets, may still be identified or protected. Speculative concerns about flight will not invalidate an order where the court was entitled to find a real risk and the order was properly confined to the defendant’s presence within the jurisdiction.

The claimant sought relief in England following matrimonial proceedings and a final order made in Michigan. Recognition and enforcement difficulties arose in relation to attempts by a receiver to deal with a pension fund. The defendant argued that the claimant had delayed, that an earlier freezing-order application could have been made under the Civil Jurisdiction and Judgments Act 1982, and that evidence concerning flight had been overstated.

The court considered whether the delay prevented further proceedings and whether earlier speculative evidence had improperly led to protective orders.

1. The court rejected the contention that the claimant’s delay barred the proceedings. The final Michigan order became enforceable in England only in January 2011. The receiver’s frustrated attempts to deal with the pension fund prompted advice that action in England was required. The subsequent liaison between the claimant’s two sets of lawyers and the necessary preparation did not amount to undue delay.
2. The possibility of an earlier application for a freezing order pursuant to the Civil Jurisdiction and Judgments Act 1982 did not alter that conclusion. The court understood why the claimant waited for a final order and proceeded only after recognition efforts failed.
3. Although the defendant had allegedly dissipated or secreted his assets, there remained something to achieve: protection of the pension fund and identification and protection of other assets. The proceedings were therefore not futile. The judge proceeded on the assumption that the defendant would comply with the court’s orders, while recognising that this might prove optimistic.
4. The court found that there had been a real risk of imminent flight, while also recognising the possibility that the defendant had already left. The passport order was understood as applying only if he came within the jurisdiction. The speculative aspects of the evidence did not improperly induce an order that the court would otherwise have refused.