FRB v DCA (No 3) (Varying a Financial Order: Evidence) [2020] EWHC 3696
In March 2020 Cohen J made a final order in a long-standing financial remedy proceeding which provided that the husband (H) pay the wife (W) £64 million to include a lump sum by instalments of £49 million. The lump sum was to be in three instalments: the repayment of the £12 million mortgage on the matrimonial home (which was to be transferred to W mortgage free); a payment to W of £30 million within 6 months of the order and a further payment of £12 million within 18 months of the order. The timescale of these payments was proposed by H during negotiations.
H applied to the Court of Appeal for permission to appeal which was refused on 18th August 2020. H failed to pay any of the lump sum and transfer the property mortgage free. On 28th September 2020 H applied to vary the order both as to quantum and as to time for payment on the basis the pandemic was a Barder event. He filed a statement (his 11th) which claiming there had been an “enormous reduction” in his personal wealth, as a large proportion of his assets were held in countries, or “underpinned by businesses”, which were among “the hardest hit globally during the course of the crisis” [14]. As such, H argued that the “entirely unforeseen and unforeseeable course of events” had “fundamentally undermined the fairness of the award” [15]. H was unable to fully quantify the “enormous reduction”. In support of his application H merely relied on a statement of his “understanding of the current position”, which concentrated on the macro-economic situation arising from Covid-19 [16]. H also sought the revaluation of all the assets in the case, an exercise which would take 6 months to complete and cost between £300,000 and £400,000.
Cohen J held that it was not proper to accede to H’s application to vary the quantum on macro-economic grounds [26]. It was for H to provide prima facie evidence and he had not. He had given no indication of what he says he is worth nor what he can pay and when. While no doubt the pandemic had affected industries which formed part of H’s wealth, H provided no documentation containing trading figures or valuations [26].
Cohen J also stressed that the major stock market indices had rebounded to pre-pandemic levels, meaning that any valuation requested by H, done at a significant cost, “would inevitably be even more speculative than that done in pre-Covid time” [30].
The full judgment can be accessed here.
