Nightingale v Nightingale

A freezing order may be renewed or extended where a respondent has failed to comply with its disclosure requirements and there remains a substantial, unexplained discrepancy concerning assets or proceeds relevant to the applicant’s claim. Submission to the court’s jurisdiction cannot be qualified retrospectively in continuing divorce and financial-remedy proceedings. A respondent may rely on a right to withhold information on grounds of self-incrimination only where there is a proper basis for asserting that disclosure may incriminate him. Ancillary disclosure orders may be directed to third parties holding funds, provided they are suitably confined and do not require disclosure of privileged information.

The applicant wife sought continuation of a freezing order obtained against the respondent husband in continuing divorce and financial-remedy proceedings. A consent order made in 2009 required further payment to the wife following the sale of shares. The husband had previously indicated that the proceeds were approximately €8 million and that the wife would receive more than €2 million, but later asserted that the proceeds were only €400 and that the wife was entitled to no more than €100.

The husband had supplied no documents required by the freezing order. He argued, among other matters, that he had not submitted to the court’s jurisdiction and that the order preserved a right to withhold documents. The central issues were whether the freezing order should be renewed and what further protective and disclosure orders were appropriate.

1. The freezing order was renewed. The husband’s failure to comply with the disclosure requirements, coupled with the wholly unexplained divergence between his earlier statements and his present account of the share-sale proceeds, provided good grounds for continuing the injunction.
2. The divorce and financial-remedy proceedings remained subsisting because significant sums were still due under the 2009 consent order. The husband had necessarily submitted to the court’s jurisdiction when that consent order was made. He could not introduce a qualification years later by asserting that he had not submitted to the jurisdiction.
3. The relevant provision in the freezing order concerned a distinct right to refuse information on grounds that it might incriminate the respondent. The husband had identified no evidential basis for supposing that compliance with the disclosure order would incriminate him. His reliance on that right was therefore misconceived.
4. Protection was extended to funds held for the husband in Memery Crystal’s client account and to the valuable library at Appleby Castle. Memery Crystal were required to disclose the amounts held, the amounts paid in and out, and the position at specified dates. They were not required to disclose the identity of payers or payees or the destination of payments. The order was provisionally considered not to offend legal professional privilege, and Memery Crystal retained liberty to apply to vary or discharge it.
5. The court fixed a date for final determination of the sums due under the consent order and repeated the disclosure requirements. In the absence of convincing documentary evidence and explanation, the court indicated that it was likely to place significant reliance on the husband’s earlier statements about the amount the wife could expect to receive.