Lady Hiroko Barclay v Sir Frederick Barclay

On a judgment summons, the applicant bears the burden of proving to the criminal standard both that the debtor had the means to pay and that the debtor refused or neglected to do so. The debtor has no legal burden to prove impossibility, but must provide sufficient evidence to raise a prima facie case that access to funds was beyond his control. The court may infer the availability of resources held through a discretionary trust from the debtor’s access to wealth and past dealings, while respecting the rights and discretion of third parties. The assessment is fact-specific. A finding of means on the civil standard in financial remedy proceedings does not necessarily establish means to the criminal standard on a subsequent judgment summons.

The applicant wife brought three judgment summonses against the respondent husband for admitted breaches of financial orders. The first concerned non-payment of a £50 million lump sum. The second concerned non-payment of a £185,000 legal services payment order. The third concerned arrears of £60,000 arising from the unilateral reduction of monthly maintenance payments.

The husband relied on the complexity of overseas trust arrangements and contended that funds were outside his control. The central issues were whether he had had the means and access to pay the relevant sums, whether he had refused or neglected to pay, and the allocation and standard of proof.

1. First judgment summons. The court dismissed the summons concerning the £50 million lump sum. Under Family Procedure Rules 2010, r 33.14(1), the applicant had to prove to the criminal standard that the husband had had the means to pay at some point after the order and that he had refused or neglected to pay. The burden remained throughout on the applicant. The husband was entitled not to give evidence and the court could not infer ability to pay merely from his failure to call the nephews or other witnesses.
2. The husband nevertheless had to provide sufficient evidence to establish a prima facie case that access to the relevant funds was beyond his control. The correspondence produced by his solicitor was sufficient for that purpose. The evidence did not establish to the criminal standard that funds could have been made available from the loan-note structure or Brecqhou, or that proposed arbitration or litigation would probably have unlocked them.
3. Second and third judgment summonses. The court found that, during the relevant period, the husband had means and access to funds held within Co-Ed Trust sufficient to pay the £185,000 LSPO and £60,000 maintenance arrears. He was its primary beneficiary; it had historically operated as his effective bank account; it had not refused him funds; and the sums were modest compared with the retained yacht-sale proceeds. The court was sure that the professional trustees would have complied with a request supported by the family context and that the husband needed only to ask.
4. In applying Thomas v Thomas, the court respected the trustees’ legal position and did not directly invade a third party’s discretion. However, the possible availability of trust resources could properly be considered. The caution in TL v ML did not prevent the finding on these facts. Consequential submissions concerning the steps to be taken on the second and third summonses were reserved.

First-instance judgment. No appellate history was stated in the judgment.