Family Law Hub

Assoun v Assoun [2013] EWCA Civ 1457

Financial provision case where the H was arguing against a ruling that he was in a prosperous position and therefore could afford to pay for his W's legal costs as well as his own. H complained that the judge had failed to look into the means of the W, because H said that she did have available money to obtain legal services for the purposes of the proceedings, whilst he did not. The H's application for permission to appeal was refused but the judge said 'woe betide his wife if it turns out that the basis on which she obtained this substantial order turns out to be false'.

  • Case No: B6/2013/2450

    Neutral Citation Number: [2013] EWCA Civ 1457

    IN THE COURT OF APPEAL (CIVIL DIVISION)

    ON APPEAL FROM THE PRINCIPAL REGISTRY

    FAMILY DIVISION

    (HHJ BRASSE)

    Royal Courts of Justice

    Strand, London, WC2A 2LL

    Date: 16 October 2013

    Before:

    LORD JUSTICE MOSES

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    Between:

    ASSOUN (Applicant)

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    ASSOUN (Respondent)

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    (DAR Transcript of

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    The Applicant appeared in person

    The Respondent did not appear and was not represented

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    Judgment

    (As Approved by the Court)

    Crown Copyright

    Lord Justice Moses:

    1. This is an application for permission to appeal against a decision of HHJ Brasse, dated 3 July 2013. It was made pursuant to recently introduced legislative provisions under section 22ZA and section 22ZB of the Matrimonial Causes Act 1973. This required, in short, the court to look into the financial position of the parties in order to ascertain whether one of the parties, in this case the wife, was in a position where she was not reasonably able to obtain appropriate legal services for the purposes of the proceedings in question, which was a proceeding for variation of an order, a financial provision order, made in February 2011. The parties' financial position was very much in dispute subsequent to that and at the time of this hearing. As I have indicated, the hearing and the decision of the judge was in July, and there is a hearing fixed for all of these matters to be considered in November.

    2. In submissions, Mr Assoun complains that the judge failed to look into the means of the petitioner, because he says that she does have available money to obtain legal services for the purposes of the variation, whilst he does not. Part of the basis of his claim relies upon the fact that he is much worse off than the judge believed.

    3. It would be quite impossible for a court of appeal to reopen such a question. The judge in my view was entitled to take the view that Mr Assoun was prosperous and that he would have sufficient funds in order to pay for not only his but also his wife's legal expenses. But when one comes to consider the amount, the figures that were available suggest that the total amount of the costs, which amount to something in the region of £550,000, were totally out of proportion to the total assets of the parties. What is more, Mr Assoun complains there was insufficient analysis of the means of his wife. There may be arguments to be had as to the comparative means of the parties, but I am very conscious of the fact that the hearing is due to take place on 18 November, and were I to give permission to appeal, then the hearing on 18 November would inevitably have to be postponed. Having regard to the litigation that has already taken place, and I am not casting blame one way or the other, it seems to me that the most disastrous thing for both of these parties would be the postponement of that hearing. And in those circumstances it seems to me that that hearing provides the best opportunity for the truth as to the comparative assets of the parties to be ascertained. It would be wrong, therefore, to grant permission to appeal at this stage when, if it proves the case that this man does not have sufficient assets to pay the sum claimed, over £250,000, by the time of the hearing, then the wife will have to give credit for that. Indeed the amounts that she has gained through these proceedings should and will count against her in the final settlement of the variation. If it proves that she has succeeded before Judge Brasse on a false basis, it will count heavily against her in the substantive proceedings on 18 November. The judge in my view was entitled to believe that there was substantial disparity, and if he has underestimated her means, for example by reason of the sale of the shares in Credit Suisse and indeed the amounts that she has at her disposal by virtue of her interest in the private company, which Mr Assoun says he can prove were much more substantial than she would have had the judge to believe, then these adjustments and the consequences in relation to her credibility can be considered on 18 November. The judge will be far better placed to consider whether she has misled him as to this application than this court.

    4. It is for those reasons that I refuse Mr Assoun permission to appeal. But I wish to stress that in any subsequent proceedings, those due on 18 November, a copy of this judgment is to be available at public expense, because woe betide his wife if it turns out that the basis on which she obtained this substantial order turns out to be false.

    5. For those reasons I refuse permission.

    Order: Application refused

Judgment, published: 19/11/2013

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Published: 19/11/2013

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