O'Farrell v O'Farrell

A registered foreign maintenance judgment remains a valid and enforceable order where the time for appealing registration has expired; it cannot then be challenged as a nullity. A third party debt order cannot attach money due from the Crown where CPR Part 66 so provides. A freezing injunction is an exceptional, protective remedy. It must be supported by evidence of a real risk of dissipation and must not be used as advance security for an ordinary debt claim. The order should permit reasonable living and legal expenses and, where appropriate, ordinary dealings with assets. If the claimant’s recoverable claim is reduced, the injunction must be reduced accordingly.

The claimant sought to enforce two German divorce-maintenance judgments against the defendant in England. The judgments had been registered in the High Court under the Civil Jurisdiction and Judgments Act 1982, but the defendant had not appealed against registration.

The claimant obtained a freezing injunction and an interim third party debt order against the Army in respect of sums payable to the defendant. The defendant challenged the validity of registration, limitation, enforcement of older arrears, the third party debt order and the continuation and scope of the freezing injunction. The central issues concerned the appropriate enforcement route and the limits of protective relief.

1. Registration and jurisdiction. The High Court registration orders were valid and enforceable. Since the defendant had not exercised his rights of appeal, the orders could not be treated as nullities. The court therefore did not decide whether registration in the High Court was the correct procedure under Council Regulation (EC) No 44/2001.
2. Third party debt order. The Army agency was part of the Crown. CPR Part 66 66.7 therefore prohibited a third party debt order in respect of money due from it. The interim order was discharged. The court declined to make a fresh order under the Crown Proceedings Act 1947, section 27, because the issue concerning the interaction with the Armed Forces Act 2006 and the Pensions Act 1995 was novel, unnecessary to resolve, and better considered by the Family Division.
3. Limitation and arrears. German law supplied the applicable 30-year limitation period for the lump-sum judgment, so the Limitation Act 1980 did not bar that claim. Nevertheless, under the Matrimonial Causes Act 1973, section 32, arrears falling due more than twelve months before enforcement proceedings could presently be enforced only with leave. The presently enforceable maintenance arrears were accordingly limited to those accruing within the preceding twelve months.
4. Freezing injunction. By the return date there was sufficient evidence of a real risk that the defendant would dissipate the anticipated Army payment and frustrate enforcement. The injunction was therefore continued, but limited to about £40,000 and made subject to an undertaking to seek leave under section 32 for older arrears. As the claim was a debt claim rather than a proprietary claim, the order should include the standard exception for ordinary business dealings. Reasonable living and legal expenses could not properly be withheld.
5. The claimant had also been required to reduce the injunction when her recoverable claim was reduced. The parties were invited to agree the consequential order and costs.