Chaudhri v Shafi and Others
| Jurisdiction | England & Wales |
| Judgment Date | 16 April 2019 |
| Neutral Citation | [2019] EWHC 1272 (Fam) |
| Date | 2019 |
| Year | 2019 |
| Court | Family Division |
Practice and procedure – Enforcement – Financial remedies – Freezing order – Against property not claimed in financial remedy proceedings – Whether claim was abuse of process – Whether application for freezing order to be made to High Court judge or Family Court – Authority of Family Court to make such orders.
The wife’s financial remedy claim on divorce concerned a variety of assets, mainly situated in Northern Cyprus but including a specific London property. She claimed that the London property was a matrimonial asset, even though it was held in the name of a third party (the second respondent), on the basis that she and the husband had funded the purchase of the property. The couple’s financial remedy proceedings were listed in the Family Court at Uxbridge for September 2014 but had to be adjourned because of the wife’s illness. At the time, the wife was an in-patient at a Mental Health unit and her doctors confirmed that she was not fit to attend court. The wife was legally represented (she had a legal aid certificate) and was able to give instructions to her solicitor. The second respondent applied to strike out the wife’s claim in respect of the London property and served evidence in support of that application. After receipt of the evidence, the wife’s solicitor took instructions (the wife was not incapacitated) and then wrote to the second respondent to confirm that the wife would not be resisting the strike out application, stating that she would instead be seeking permission to amend the particulars of claim in respect of transfers of money from the husband to the second respondent.
The case was relisted for November 2015. No strike out order was made in respect of the wife’s claim to the London property, but the wife did not pursue any kind of claim within those proceedings in respect of the property. The district judge confirmed in his judgment that, although the wife had initially claimed that the husband had a beneficial interest in the London property, this had been denied in evidence by both the husband and the second respondent, and the wife had not pursued her claim. On 12 February, the judge ordered the husband to pay the wife a lump sum of £686,000.
The husband failed to pay and on 27 September 2016, the wife obtained a worldwide freezing order from the High Court Applications judge. That order remained in force. In April 2019, the wife again asked the High Court Applications judge for a freezing order, this time against the London property legally owned by the second respondent, explaining that although she believed that she and the husband were the beneficial owners, she had not pursued a claim in the original proceedings ‘due to stress and ill-health’. On 8 April 2019, a High Court judge made an order headed ‘In the High Court of Justice, Family Division’; this was expressed to be a freezing order in respect of the London property.
Paragraph 24 of the President’s Guidance: Jurisdiction of the Family Court: Allocation of Cases within the Family Court to High Court Judge level and transfer of cases from the Family Court to the High Court, issued on 28 February 2018 stated that:
‘When a freezing order is sought, the application should always be heard in the Family Court, normally at District Judge level, but may be allocated to a Judge of High Court level by reference to the criteria in the efficiency statement applied by analogy: See Tobias v Tobias[2017] EWFC 46.’
Held (1) Applying Henderson v Henderson (1843) 3 Hare 100, it would be abusive if the applicant wife were allowed to make a claim to the beneficial ownership of the London property, given that the wife’s solicitor had confirmed in writing that the wife would not resist an application to strike out the claim and that, in the following year, when giving evidence, the wife had abandoned her claim in respect of the property. Not once, but twice, therefore, the wife had failed to pursue her claim in relation to the London property and three years had now passed since the decision in the financial remedy proceedings. It would be a manifest abuse if a claim against the London property were allowed to be mounted and protected by a freezing injunction. The order made in April was therefore discharged (see [12], [14], below).
(2) There could be no doubt that the freezing orders made in this case by High Court judges could equally have been made by a district judge sitting at the Family Court in Uxbridge. Further, in these circumstances, para 24 of the President’s Guidance of 28 February 2018 required that the freezing order application be heard in the Family Court by a district judge. The resources of the High Court ought not to be used to grant this relief. It appeared that the wife had been advised by the Family Court in Uxbridge that a district judge did not have jurisdiction to make a freezing order in relation to property, and that such an order could be made only by a circuit judge or a High Court judge. This approach was misconceived because, in the family sphere, a freezing injunction could be granted under s 37 of the Matrimonial Causes Act 1973 or s 37 of the Senior Courts Act 1981. Section 37(6) of the...
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