Assoun v Assoun

Where an appellate court requires a litigant to pay money into court as a condition of pursuing an appeal, the payment may be released to the opposing party after dismissal if its purpose included reducing an established debt. A later description of the sum as security for costs does not displace that purpose where the court’s intention remains clear. A payment-out application cannot be used to introduce material withheld from the appeal, reopen the concluded appeal, or litigate disputes that belonged to it. Although debt prioritisation may arise generally, it cannot be invoked on the facts to avoid discharge of the debt which the payment was intended to reduce.

The wife applied for payment out of £30,000 paid into court during the husband’s appeal. She remained owed more than that sum, and the husband’s appeal against the relevant Hadkinson order had failed. The husband resisted payment on the grounds that the money was intended only to fund legal representation, which had been provided pro bono, and that the wife had not been frank about the alleged debt. He also argued that he should be entitled to prioritise repayment of other debts, including any payment required to purge his contempt. The Court of Appeal determined the application on written evidence and submissions.

1. Application allowed. The wife was directed to receive payment out of the £30,000 paid into court, together with accrued interest.
2. The court examined the purpose of the payment-in order. The language used when the appeal hearing was adjourned indicated that the payment was intended to reflect a significant part of the husband’s debt to the wife. Although the later order described the sum as security for the respondent’s costs, nothing in that order contradicted the original intention. The payment was therefore made on at least two bases: to enable the appeal to proceed upon full and frank financial disclosure, and to reduce the husband’s indebtedness if the appeal failed.
3. The fact that the wife was represented pro bono did not alter that conclusion. The husband’s submission that the payment could be used only for legal representation was rejected.
4. The husband’s allegations concerning the wife’s trustworthiness and the parties’ financial arrangements in Texas depended on material not placed before the court on the appeal. The court had already refused permission to reopen the appeal and rejected reliance on new evidence. A costs or payment-out application was not an appropriate vehicle for changing that decision or litigating issues which belonged to the concluded appeal.
5. The husband’s claimed right to prioritise repayment of other debts likewise could not avoid the conclusions already reached. Whatever the merits of a general opportunity to purge contempt, on the facts he had to discharge the debt to the wife. Lord Justice Beatson agreed.

• Central Family Court: Proceedings under case no FD06D05405 gave rise to the husband’s appeal and the payment-in order.
• Court of Appeal (Civil Division): Following the dismissal of the husband’s appeal, the wife made this payment-out application. The court allowed it and directed payment of £30,000 plus accrued interest.