Lady Hiroko Barclay v Sir Frederick Hugh Barclay

In judgment-summons proceedings, the High Court may summon witnesses whose evidence may bear on the debtor’s means and on whether an existing lump-sum order should be recalibrated. That power is not confined to the stage before liability or contempt is determined. It remains available after a finding of contempt but before sentence, when the court is considering punishment and the amount properly payable. The general power to summon witnesses at any stage under rule 24.2 of the Family Procedure Rules 2010 may also apply. The court may retain summonses where the proposed evidence is potentially material, even though its precise relevance cannot be established until the witnesses give evidence.

Lady Hiroko Barclay had obtained orders requiring Sir Frederick Hugh Barclay to pay a lump sum of £100 million. Following non-payment, she issued three judgment summonses. The first was dismissed, while Sir Frederick was found in contempt in relation to the second and third.

Sir Frederick’s case was that funds due to a trust were being withheld by businesses controlled and managed by his nephews, Howard Barclay and Aidan Barclay. The court issued witness summonses to the nephews. They applied to set those summonses aside, arguing that rule 33.17 of the Family Procedure Rules 2010 did not permit witnesses to be summoned after the debtor’s means had been considered in the judgment-summons proceedings.

1. The application by Howard Barclay and Aidan Barclay to set aside the witness summonses was dismissed. The summonses were not procedurally defective.
2. Rule 33.16 of the Family Procedure Rules 2010 permits the court, on the hearing of a judgment summons, to make a new order for payment of the amount due under the original order. That power must remain available throughout the judgment-summons process, including after a finding of contempt but before sentence has been imposed. The court must therefore continue to consider whether the lump-sum order should be recalibrated or adjusted.
3. Rule 33.17, which expressly permits the High Court to summon witnesses to prove the debtor’s means, did not limit the court’s wider powers. Rule 24.2 also confers a general power to summon a witness at any stage to attend court and give evidence.
4. The nephews’ evidence could be material to whether they controlled funds said to be available to the debtor. It could also be relevant to punishment. The court was not required to determine in advance that the evidence would be material; it was sufficient that its potential relevance was established.
5. It would be absurd and wasteful to require a separate hearing under a different rule merely to obtain evidence relevant to recalibration or punishment. Lady Barclay was given permission, if she wished, to amend the summonses to add rules 33.16 and/or 24.2. The listed hearing was adjourned and was to be refixed.