Mubarak v Mubarak & Ors [2007] EWCA Civ 879

Case No B4/2007/0858

[2007] EWCA Civ 879

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE PRINCIPAL REGISTRY OF THE FAMILY DIVISION

(MR JUSTICE HOLMAN)

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Tuesday, 17 th July 2007

Before

LORD JUSTICE WALL

Between

MUBARAKAppellant

MUBARAK & ORSRespondent

(DAR Transcript of

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Mr C Howard QC & Mr R Harrison (instructed by Messrs Hughes Fowler Carruthers) appeared for Appellant.

for THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.

Judgment

[1]Mr Iqbal Mubarak seeks permission to appeal against part of an order made by Holman J on 5 April 2007. His application was refused on paper by Thorpe LJ on 21 May, but was yesterday renewed orally by Mr Charles Howard QC. Having heard Mr Howard’s oral submissions I reserved judgment until this morning.

[2]The case of Mubarak v Mubarak, has, I regret to say, become notorious and in my judgment represents a serious blot on the otherwise carefully written pages of Family jurisprudence. Its level of notoriety is measured by the terms in which Thorpe LJ refused permission to appeal:

“… the application falls to be considered in the context of over 7 years of litigation, rightly described by Holman J as ‘Titanic’. The husband is and has been for years in contempt. He cynically incurs and discharges massive litigation bills with, as I infer, the intention of depriving the wife of her entitlement to independent affluence. This court should not encourage or collude in his apparent strategy.”

[3]Mr Howard has of course produced a statement pursuant to paragraph 4.14A(2) of the CPR Part 52 Practice Direction. For present purposes, I make it clear that I treat the points advanced by Mr Howard as points of law going to the exercise of jurisdiction under Sections 23 and 24 of the Matrimonial Causes Act and not going to the exercise of any form of judicial discretion. Mr Howard, as I understood him, did not dissent from my observation that no court is likely to exercise an available judicial discretion in Mr Mubarak’s favour, given his conduct in the financial litigation between himself and his former wife. However, I accept Mr Howard’s argument that if Mr Mubarak has an arguable point of law, going in essence to the power or jurisdiction of the court to make any of the orders made by Holman J, then it would be wrong in principle to exclude him from the right to argue that point in this court, on the ground of what Mr Howard rightly identified as moral opprobrium. If the court did not have jurisdiction to make any of the orders made by Holman J, he did not have the power to make them, however much the merits of the case may plead for them to be made. It is on this basis that I approach the current applications. I could not, however, but read with a sense of real dismay, bordering on incredulity, Holman J’s summary of the costs spent in this case since Bodey J made his original financial order against Mr Mubarak in December 1999. I propose to incite only two paragraphs on this point from Holman J’s judgment:

“To date, the husband has incurred costs and disbursements (including VAT) of £2,030,000. Some of those costs relate to issues concerning the children. Of that total, £1,580,000 has been incurred since the conclusion of the main hearing of ancillary relief in December 1999; and of that £1,580,000 he has paid £1,355,000 and owes £225,000. “A current total for all the costs of the husband and the wife and thechildren is thus, now, at or close to £4,100,000. Other entities, including the family trust and some of the companies owned by it, have also participated from time to time in the struggle and have incurred costs, but I do not know how much. I have not counted the total amount of court time, or days in court which this case has now occupied. But it must be very great and it is disproportionate to the importance of any one family and is unfair to other, often more needy, court users, such as families whose children (unlike these) have been removed from them.”

[4]I respectfully endorse the sentiments expressed by Holman J in the latter paragraph. In my judgment, this application raises a relatively straightforward point of construction. What did Bodey J’s order of 10 December 1999 mean? What did it do? In particular, did it make orders which exhausted this court’s jurisdiction to make the further order for the variation of post-nuptial settlement made by Holman J? Mr Howard submits that this is precisely what it did. The judge did not agree. It is therefore necessary first of all to look at the order itself and then to the judgment.

[5]In my view, it is only if the order itself is unclear that any argument under the slip rule arises. I say at the outset that, having considered the matter carefully overnight, I have come to the clear and unequivocal conclusion that Mr Mubarak’s application is not only without merit, but that it does not raise any arguable point of law or jurisdiction for this court properly to consider. The application will accordingly be refused.

[6]I have, however, to explain why I have reached that conclusion, and I propose to do so firstly by looking at the order, and then in some detail at the judgment of Holman J. The order begins with a series of recitals. Mr Howard places particular reliance on the fourth, which reads as follows:

“(A) the order for periodical payments made inparagraph 3below is for the sole purpose of providing the Petitioner withsufficient fundswith which to maintain the children of the family (assessed inthe judgment of today's date at the rate of £15,000 per annum for each of the four children); and in the event that either (a) an assessment be made by the Child Support Agency sufficient to vest the court with jurisdiction to make orders for child maintenance or (b) the Respondent shall hereafter agree in writing a maintenance liability towards the children, then the periodical payments order made in paragraph 3 below shall be discharged and the Petitioner's application for periodical payments and secured periodical payments shall stand dismissed with an order that she be not entitled to make any further applications under sections 23(l)(a) or (b) of the Matrimonial Cause Act 1973; (B) Save for the possibility of the Child Support Agency making less than the maximum assessments for the children, the Petitioner's application for periodical payments and secured periodical payments would have been dismissed under this order; (C) This order is in full and final satisfaction of all claims and applications of the Petitioner made against the Respondent for herself save as set out herein; ...”

[7]The first order is that Mr Mubarak should pay his former wife a lump sum of £4,875,000. Paragraphs 2 to 4 deal with periodical payments and school fees until, and after, payment of the lump sum. These provisions, as I understand them, were essentially designed to provide for the maintenance of the children of the family, and their education. There are, however, substantial arrears under these orders, which, as I understand it, render the total sum due by Mr Mubarak to Mrs Mubarak, as at today’s date, as being in the order in excess of £5,000,000.

[8]Mr Howard also places reliance on paragraph 5(a) and (b):

“(a) Upon payment in full of the said lump sum the Petitioner do transfer to the Respondent all such interest as she may have in the IMK Family Trust, the Dianoor Foundation for Art Trust, 21st Century Holdings Ltd, Dianoor Jewels International Ltd, Dianoor Jewels Ltd, or any of their associated companies, including for the avoidance of doubt any sums standing to her credit on director’s loan account; (b) Upon payment in full of the said lump sum, the Petitioner do at the Respondent’s request transfer him all such interest she may have in the parcels of land in Kashmir, that are said by him to be owned jointly by her with the parties’ children and their cousins.”

[9]Paragraph 6 provides for Mr Mubarak to transfer specific chattels to Mrs Mubarak; paragraph 7 provides for the dismissal of Mr Mubarak’s claims against Mrs Mubarak with immediate effect; paragraph 8 bars Mr Mubarak’s claim, under the inheritance provision of the Family Independence Act 1975, against Mrs Mubarak’s estate, once again with immediate effect; paragraph 9 deals with Mrs Mubarak’s Inheritance Act claim against Mr Mubarak and here, in my judgment significantly, the wording is different: the order is only to take effect “upon payment in full of the lump sum”.

[10]Paragraph 10 orders the transfer to Mrs Mubarak of certain modest capital sums; paragraph 11 deals with passports; and paragraph 12 provides:

“ In the event of delay in payment of the lump sum ordered under paragraph 1 above, the Petitioner be at liberty to apply to vary by way of increase the interim arrangements provided for at paragraph 2 above.”

[11]Paragraph 13 deals with costs; paragraph 14 charges certain properties in London with the lump sum and costs; and paragraphs 15 to 21 deal with the method whereby it was anticipated, at that point, that the lump sum would be satisfied. Several points need to be made by way of preliminary observation at this point. Most importantly, in my judgment, and I shall come to this in more detail later, Mr Mubarak had made a very important concession, to which the judge refers in paragraph 26 of his judgment. That concession was that the assets of the trust, into which the property in question had been placed, were to be treated as belonging to Mr Mubarak:

“26. Meanwhile, Withers had written their letter of 31st July 1998 in which they said they could not give any indication, however broad brush, of what the husband was worth, until Arthur Anderson had ‘completed a world wide audit’. The letter continued with a paragraph that has since been referred to again and again during the course of these proceedings and the present application:- “‘Mr Mubarak is one of the beneficiaries of the IMK Family Trust (“the trust”) based in Jersey. The other potential beneficiaries are the children, Mrs Mubarak was recently removed as a potential beneficiary. For the purposes of these proceedings, our client accepts that the assets of the trust will be treated as being his, subject as your client knows, to 45% of the business interests being held beneficially for Mr Mubarak’s brother-in-law, Mohamed Hussain Wani. The intention in creating the trust was to hold all the business interests. Some of the businesses are now held within the umbrella (as appears below), others have not yet been transferred.’”

[12]The method of implementation for the lump sum, which Mrs Mubarak’s lawyers elected to pursue in the order made by Bodey J, can, I think, fairly be summarised as orders under Section 24A of the Matrimonial Causes Act 1973, for the immediate delivery up and sale of jewellery and artefacts, the value of which was calculated to be more than sufficient to satisfy the lump sum. It is not, I think, necessary for the purposes of this judgment to set out the detail of paragraphs 15 to 21 of the order, the structure of which is perfectly clear.

[13]In my judgment, however, the paragraph which I have cited from Holman J’s judgment, and the letter from Withers dated 31 July 1998, amply explain why the wife’s lawyers, at that point, went down the Section 24A route. They had a concession that the assets of the trust were to be treated as belonging to Mr Mubarak; they were not to know that Mr Mubarak would resile from that concession. I therefore regard the concession as very important and, to anticipate, as a powerful counter to Mr Howard’s argument, that the order for the sale of chattels constituted a variation of a post-nuptial settlement.

[14]As is well known, the order was not effected, and indeed Mr Mubarak has set his face against making any payment of any kind to Mrs Mubarak under the order. Accordingly, since that time there has been what Holman J describes as:

“… a long and relentless history of attempts by Mrs Mubarak, both here and abroad, to enforce her order.”

[15]The application before the judge was the last of these. He sets out the four applications before him, in paragraph 36 of his judgment, on internal pages 17 and 18:

“The present hearing entirely concerns yet further attempts to procure payment. The applications essentially before me, which were all issued by the wife, are as follows:- (1) Anapplication issued in March 2005 pursuant to section 37 of the Matrimonial Causes Act 1973 or section 423 of the Insolvency Act 1986 to set aside the transfer of the husband's shares in 21st Century into the IMK Trust in September 1997 (see paragraph 4 of the notice of application now at bundle A page 11(b)). (2) Anapplication issued in March 2005 pursuant to section 37 of the Matrimonial Causes Act 1973 to set aside the exclusion of the wife from the trust by the instrument of exclusion dated 20 April 1998 (see paragraph 1 of the notice now at bundle A page 11(a)). (3) Anapplication issued in March 2005 for an order under section 24 (1) (c) of the Matrimonial Causes Act 1973 varying the terms of the post-nuptial settlement constituted by the IMK Trust, so as to require the trustees to pay to the wife an amount equal to the amounts now owed by the husband to the wife (see notice of intention to proceed dated 7 March 2005 now at bundle A page 11, and paragraph 2 of the notice of application now at bundle A page 11(a)). (4) Anapplication issued on 6 November 2006 for an order pursuant to RSC order 20, rule 11 (the ‘slip rule’) correcting the principal order so that (as the wife contends) it accords with the judgments of Mr Justice Bodey of 10 and 13 December 1999 and his intention on 13 December 1999 when I treat the order as being made (see notice of application now at bundle A page 41). There are certain further, essentially consequential applications, but they do not add to the substance of the matter. When, for convenience, I later refer to applications 1 or 2 or as the case may be, it is a reference to the above numbering and not to the different numbering in Miss Laura Harris's document of 5 December 2006.”

[16]The judge then makes a number of preliminary observations in paragraphs 38 and 39 of the judgment, relating to the application for the variation of post-nuptial settlement. “38. Application 3, variation of settlement, assumes that the husband’s shares remain in the trust and is effectively directed at the trustees. 39. Application 4, amendment of the principal order under the slip rule, has been issued as a precursor to, and in support of, application 3, to make plain, if it is not currently plain, that the variation of settlement powers are still available to the court and have not already been exhausted by already exercising or dismissing them.”

[17]I need not take time over the judge’s reasoning in dismissing applications 1 and 2, which related to Section 37 of the Matrimonial Causes Act 1973. I can, accordingly, pass at once to paragraph 41 of the judgment, where the judge begins his discussion of applications 3 and 4. It was common ground, and remains common ground, that the IMK settlement was, at its inception, and remains, a post-nuptial settlement. In the second paragraph of paragraph 78 of his judgment, the judge identifies the rival intention:

“The wife says that the principle [sic] order neither exercised nor dismissed the power of the court under section 24(1)(c) of the Matrimonial Causes Act 1973 to vary, for the benefit of the wife, that post-nuptial settlement, and that in light of the total failure of the husband to pay anything at all except school fees and a small part of the maintenance, I should now do so. The husband says that the court, viz Mr Justice Bodey in December 1999, either has exercised that power (and it is trite law that a property adjustment power cannot be exercised twice in relate to the same property); or has dismissed the application for a variation of settlement order; or at any rate has made what was intended to be a once-and-for-all final order as to capital, which now precludes making any such order. Clearly, these arguments all focus on, and require a decision as to, what Mr Justice Bodey did, or did not, order and do in December 1999; and that must centre on construction of his actual order, although all relevant and admissible surrounding material may also be considered.”

[18]Their follows a careful exegesis by the judge on the meaning and effect of the slip rule, followed by an analysis of the speech of Lord Oliver in Dinch v Dinch. At paragraphs 92 and 93 of the judgment, the judge recalls Mr Howard’s submission and summarises the effect of Dinch v Dinch:

“92. Mr Howard QC says that the present case raises for decision what was left open by Lord Justice Ormrod in Carson and by the House of Lords in Dinch (the use of the words “at least” by Lord Oliver at page 260 between D and E), namely, whether there can be a later order in relation to some other property after a previous order for ancillary relief, assuming that the previous order was not itself intended to be a once-and-for-all final order. 93. If the original order was intended to be a once-and-for-all final order, Carson and Dinch clearly establish that that is the end of the matter and there can be no going back and no further order. So if I conclude that the order of Mr Justice Bodey was intended to be such an order, then that, too, is the end of the matter. But if it was not intended to be a final order, and if there has not yet been an order under section 24 in relation to the trust, then I am asked to make one. In my view, I would, as a matter of jurisdiction, be able to do so. First, because section 24(1) begins with the words “or at any time thereafter”

. Second, because nothing in Dinch or Carson precludes that I can do so. Third, because if a later order in relation to a different property is precluded, even if there has not been a once-and-for-all final order, then all the discussion in Dinch and Carson as to whether there has been a once-and-for-all final order would be otiose. If it were the law that once there has been one capital order in relation to one capital asset, there simply cannot be a further capital order in relation to any other asset, then that would be conclusive.”

[19]The judge then turns to Bodey J’s order and the circumstances in which it was made. He goes carefully through the judgment underlying the order, noting that Bodey J had anticipated difficulties in the implementation of the order, and taking pains to distinguish between what the judge describes as “a clean break” and a “once-and-for-all settlement”.

[20]At paragraph 95, Holman J cites and identifies what he regards as a very important paragraph in Bodey J’s judgment, the terms of which are as follows:

“‘The basis of this order is that any claim or interest of the wife in or against IMK Trust or Dianoor Foundation For Art Trust, or in or against any of the companies involved in this case is to be regarded as abandoned or withdrawn as and when the husband pays the lump sum; likewise any interest she may have in any bank accounts or land in Kashmir or elsewhere.’”

[21]The judge identified this passage as the “as and when passage”. He therefore construed the basis of the order as follows:

“(i) Any interest that the wife has in the IMK Trust, or against the Dianoor Foundation For Art Trust, or in any of the companies, or in any back account or land in Kashmir, are all to be treated as abandoned as and when the husband pays the lump sum; AND, (ii) Any claim that the wife has against the IMK Trust, or against the Dianoor Foundation, or against any of the companies, or all to be regarded as withdrawn as and when he pays the lump sum.”

[22]The judge then turns to the events of Monday 13 December, initial judgment having been given on the previous Friday, and recalls Mr Howard’s submissions in relation to that in the following terms:

“Pausing there, the essential submission of Mr Howard is that, by his judgment on the Friday, the judge had deliberately selected a lump sum as the method of making capital provision for the wife; and that on the Monday the wife’s lawyers, by their application, and the judge, by his decision, deliberately selected and firmly nailed their colours to the mast of impounding and later sale of the jewellery stock as the method of enforcement if the lump sum was not paid. Mr Howard submits that, whether wisely or not, a deliberate choice and deliberate decision was made to enforce against the jewellery specifically, rather than against then trustees and the trust; and that whatever may have been said by the judge as to the “as and when basis” on the Friday, the lawyers and the judge had deliberately moved on, on the Monday, and before the order itself was sealed and perfected.”

[23]The judge then proceeds to analyse the order; he points out that the orders dismissing Mr Mubarak’s claims are in entirely conventional form, and are clearly designed to take effect immediately; he contrasts those with the terms of paragraphs 9 and 12, to which I have already referred. He then adds this:

“Pausing there, Mr Howard says that paragraph 12 again shows deliberate selection of a remedy ‘in the event of delay in payment of the lump sum’ and that paragraph 12 excludes some later application or order to vary the post-nuptial settlement. I reject that particular argument. Paragraph 12 does no more than give to the wife a ‘liberty to apply’ and makes plain that if payment of the lump sum is delayed, the quantum of the periodical payments may be increased. It does not in any way preclude alternative remedies against capital; in any event, we are no longer in the territory of ‘delay of payment’ but of prolonged, ruthless and contumacious refusal to pay. I do not think that paragraph 12 impacts on anything I have to decide, nor does the fact that the level of interim payments has already been decreased.”

[24]Having then considered various observations made by the judge on subsequent occasions, the judge turned to the argument that the power to make an order varying the post-nuptial settlement had already been exercised by the judge in the order of December 1999. He rejects that argument in the following terms: I reject the submission of Mr Howard that there was an actual exercise of the power. He argues that as the stock of jewellery belonged to one or more of the companies, and they in turn were wholly owned by 21st Century Holdings and 21st Century in turn was owned by the trust, the order made under paragraph 15 for delivery up and ultimate sale of the jewellery must have involved some implied variation of the post-nuptial settlement. He submits that Mr Justice Bodey could only have attacked the jewellery if he had first given the wife some interest in it by varying the trust. In his judgment on 13 December 1999, however, Mr Justice Bodey made quite plain and express that he was acting, or purporting to act, under the powers under section 24A of the Matrimonial Causes Act 1973; and that because of the concession as to the trust, he did ‘not see any difficulties as to piercing the corporate veil’. On 23 October 2000, on the application of the companies, Mr Justice Bodey later accepted that he had not been entitled to pierce the veil in that way, and in fact discharged the whole of paragraph 15. I do not at all accept the submission of Miss Harris that, as paragraph 15 has now been discharged, I should now construe the events and order of 13 December 1999 as if paragraph 15 had never been inserted. In my view, that would be utterly unreal. I have to discern the intention as a whole of Mr Justice Bodey in December 1999, and at that time he clearly intended to, and did, insert the provision of paragraph 15. But it is quite clear from the way that Mr Justice Bodey approached the question of sale of the jewellery in December 1999 that he was not varying the post-nuptial settlement. Rather, he was simply '’piercing the veil’ and getting to the perceived reality, because of the concession, that the jewellery simply belonged to the husband. It should be noted that the operative part of the whole of paragraph 15 and the consequential paragraphs (16 to 18) is that ‘the respondent do deliver up...’; ‘the respondent do disclose...’; ‘the respondent ... shall identify...’. These are not orders made against the companies, nor against the trustees, nor against the trust (which are nowhere mentioned in paragraphs 15 to 18) but, rightly or wrongly, against the respondent personally.”

[25]The judge then turned to what he described as the “much more difficult” question, namely whether the judge had declined to exercise the power as part of making a “once-and-for-all capital order”, Holman J dealt with this in the following way:

“Standing alone, the ‘as and when’ basis and passage in the judgment of Friday 10 December is, in my view, clear. The wife had applied in both her petitions for all forms of ancillary relief. I have already described how I construe that passage. It dealt separately and discretely both with ‘any interest in’ and ‘any claim against’ various assets including the trust. The judgment was obviously pre-prepared and the words deliberate. In my view, if those words stood alone, then the position at the end of the judgment and close of the Friday is quite clear. The judge had not only not declined to exercise the power, but had expressly and deliberately kept the power open until the lump sum had indeed been paid. He did so precisely because he foresaw, in passages I have referred to, that there was likely to be a failure to pay and problems of enforcement.”

[26]The judge did not regard either of the submissions made to him as decisive and his conclusions were expressed in paragraph 13 in the following words:

“To my mind, there is indeed a lacuna or ambiguity in the order. The words of recital basis (C) are, of course, very clear and very strong; but the operative part is the order itself. If basis (C) was indeed meant to indicate that all other claims, and specifically the claim for a variant of settlement, were there and then dismissed, then, frankly, I would have expected to see an express dismissal within the operative part of the order along the lines of precedent 72. it is not there and Homer did nod either by the breadth of recital basis (C) which may appear to go further than may have been intended; or, if (C) is correct, by failure to include an express dismissal. The question is which way did he nod? So one has to look at other indicators.”

The judge then concludes this part of his judgment with paragraphs 122 and 123:

[27]“122. I have carefully considered all these arguments. I have concluded that:- (i) Mr Justice Bodey did not on 13 December 1999 actually exercise the power to vary the settlement and did not deliberately decline to exercise it; and (ii) The order was not intended to be, and was not at that time, a once-and-for-all order as to capital, although it would have become one when and if the lump sum had been paid in full. 123. I have already given my reasons why I consider Mr Justice Bodey did not actually exercise the power. My reasons for considering and holding that Mr Justice Bodey did not intend to, and did not in law ‘decline to exercise’ the variation of settlement power, and did not make a once-and-for-all order asto capital, are that I must look at the events of 10 and 13 December asa whole. The ‘as and when’ passage is clear and deliberate and makes good sense when enforcement difficulties were already forecast. There is nothing outside the four comers of the formal order itself to indicate that Mr Justice Bodey resiled from that position and intention, and no reason why he should have done so. Selection of the charges (paragraph 14) and sale of the jeweller- (paragraph 15) as the primary methods of enforcement in no way precludes the as and when basis as a fall back. There is a lacuna or ambiguity within the four comers of the order in that recital basis (C) is not, as I would expect, reflected in, or given effect to by, an express dismissal. There are repeated references to ‘upon payment in full of the lump sum’ which suggest no closing down of all possible powers until it has been paid. It seems to me that the language selected in paragraph 5, with its references only to ‘interest in’ is more likely to reflect a poorly drafted attempt to express the ‘as and when basis’ in the judgment, than a deliberate choice to restrict the scope of the as and when basis to any interest in the assets and not also to keep it extended to any claim against the assets. It seems to me that the most likely explanation of the ‘disjunction’ is that counsel did not have the judgment in written form when they drafted the order (it was delivered orally and would not by then have been transcribed) and failed to recall, and accidentally omitted to record in the draft order, the breadth of the language deliberately used by the judge in the as and when passage in his judgment. Although, as I have assumed, and am sure, Mr Justice Bodey will have read the draft order with care, there is a difference in practice between actually being the author or draftsman of an order, and checking one to see if it reflects one's intention. It seems to me most likely that Mr Justice Bodey accidentally thought that paragraph 5 dealt fully and faithfully with his ‘as and when basis’ and that it is only under the later spot light of these applications that the disjunction appears.” (i) Mr Justice Bodey did not on 13 December 1999 actually exercise the power to vary the settlement and did not deliberately decline to exercise it; and (ii) The order was not intended to be, and was not at that time, a once-and-for-all order as to capital, although it would have become one when and if the lump sum had been paid in full.

[28]The judge then deals with the Slip Rule Argument in paragraph 124. He held that on a proper construction of the order in its context, the court had not disposed of Mrs Mubarak’s claims for a variation of a post-nuptial settlement or declined for all time to exercise the power to make a variation of a post-nuptial settlement. Nonetheless, he continued by considering the slip rule argument, and his reasoning in relation to it is contained in paragraph 124:

“This, in my view, makes it strictly unnecessary for me to consider application 4 under the slip rule, which is designed merely to make more express that which I have now held. Further, if, conversely, the order does not bear the construction which I have reached, then the effect of my order under the slip rule would indeed be to give effect to second thoughts. I stress only that in my consideration of construction or the ‘the Dinch point’ I have focussed very much on events on 10 and 13 December, up to the making of the order itself. I have, I hope, been very careful not to allow later or second thoughts to intrude. Rather, I have placed considerable weight on the ‘as and when passage’ as being the first thoughts from which, before the making of the order itself, the judge did not resile. 125. Although unnecessary, I nevertheless think it is appropriate, in order to give effect to this part of this judgment, that I should, pursuant to RSC order 20 rule 11, correct an accidental omission from the order of 13 December 1999 by adding at the end of paragraph 5(a) after the words ‘director’s loan account’ the words: ‘and upon payment in full of the said lump sum all remaining claims by the petitioner for property adjustment orders including to vary as a post-nuptial settlement the IMK Trust shall hereby stand dismissed.’” ‘and upon payment in full of the said lump sum all remaining claims by the petitioner for property adjustment orders including to vary as a post-nuptial settlement the IMK Trust shall hereby stand dismissed.’”

[29]The balance of the judgment deals with the exercise of discretion, which, for reasons I have already given, and with one exception, is unnecessary for me to consider. I will, however, return to the one point I need to deal with at the end of this judgment. I have gone through the judgment in some detail, because in my view it is simply impregnable. In my judgment, Mr Howard’s sophisticated arguments fail when set against the elementary proposition that an order which provides, as this order does in my judgment, for the dismissal of a wife’s remaining claims on the payment to her, as here, in full, of a lump sum, must mean and does mean that the wife’s remaining claims will only stand dismissed as and when the lump sum is paid in full. Until that time they remain alive and available, unless they have in some way been exercised and therefore cannot be exercised a second time.

[30]In my judgment, the judge’s conclusion that the power to order a variation of a post-nuptial settlement had not been exercised by Bodey J, is plainly correct and impregnable. The whole thrust of the order is that the full and final satisfaction of the wife’s claims could and would only occur when the lump sum is paid. Until that point, in my judgment, her claim for a variation of the post-nuptial settlement remained alive and the contrary is not arguable. In my judgment, there is nothing in Dinch v Dinch to contradict this analysis, which not only represents the law in my view as it plainly is, but also accords with any proper notion of justice.

[31]At this point it is, I think, necessary, and therefore needs to be stated again, that this is not a case of cannot pay; it is case of will not pay, and one of the worst of its kind. What form of justice is it, I ask myself, that would enable a party to escape from a properly imposed liability on the basis argued for by Mr Howard? I have already made the point that in so far as Holman J was exercising a judicial discretion to make an order under Section 24 of Matrimonial Causes Act 1973 in Mrs Mubarak’s favour, no possible criticism can be made of him. In my judgment, there is simply, here, no arguable case fit to be considered by this court that in the making of the order, of which Mr Mubarak complains, Holman J made an order which he had no power or no jurisdiction to make. In my judgment, therefore, the application is not only without merit, but stands no reasonable prospect of success and will accordingly be refused.

[32]I will, however, before concluding this judgment, deal briefly with the oral submissions which Mr Howard put to me yesterday. He, with his characteristic clarity and force, submitted that there were three powerful points of substance: these were, firstly, where the court had made a property adjustment order it could not a second. That is the point to which he referred as having been left open in Carson and in Dinch and thus right for a decision by this court. Secondly, he submitted that the order, under Section 24A, was essentially an order against the trust. That is to say, in order to make an order in relation to the chattels, the judge had, by implication at least, to vary the post-nuptial settlement whereby the chattels had been invested in the trust. To put the assets in Mr Mubarak’s hands, he argued, meant, of necessity, that the judge had made an order for the variation of the post-nuptial settlement. Thirdly, he submitted that this was a once-and-for-all financial settlement and, implying Dinch v Dinch, there was no power to reopen.

[33]I have, I think, dealt with the first argument. It is, however, in my judgment, closely linked with the second; I have no hesitation in rejecting both. As I have already stated more than once, Mr Mubarak had made an important concession, which I have already recorded. The trust assets were to be treated as belonging to him personally. Relying on that concession, the judge made orders under Section 24A of the Matrimonial Causes Act 1973; such orders, in my judgment, are not property adjustment orders or an order for the variation of a post-nuptial settlement, and, in my judgment, the terms of Section 24A itself make this clear; I need not set them out. As for the third argument, this is, in my judgment, a matter of construction of the order. As I have already made clear, the order, as I read it, although I agree that it does not expressly say so, can only sensibly be read on the basis that Mrs Mubarak’s claims were not to stand dismissed until a lump sum had been paid in full. As it fell out of course, those who drafted the order, relying on Mr Mubarak’s concession, anticipated that if the sum was not paid within hours, they would be in possession of valuable jewellery and artefacts of sufficient value to satisfy the claim. Equally, as it fell out, that expectation was disappointed. It does not seem to me to be open, however, to Mr Mubarak to rely on his cynical withdrawal of the concession as a means of escaping liability. If the order was not to be satisfied by the payment of the lump sum, Mrs Mubarak’s other and un-exhausted claims for variation of post-nuptial settlement plainly remain open to her.

[34]I am therefore unimpressed with the sophisticated arguments addressed by Mr Howard, and in particular those which he raises in relation to the events of the Monday and the drafting of the order. The intention behind the order, and the circumstances in which it came to be made, are in my judgment very clear. For completeness, I need to record that Mr Howard also sought to rely on the delay in bringing the application to vary the post-nuptial settlement, and the fact that both Mrs Mubarak and her previous lawyers did not think the claim open to them. I am frankly unimpressed with both arguments. I remind myself that the reason for the application has been Mr Mubarak’s grossly contumacious refusal to pay. Had he paid, none of this would be necessary. A husband in his position cannot, in my judgment, string out the process for as long as possible and then complain that the other side has been slow in pursuing it. Equally, it would be quite wrong to use Mrs Mubarak’s and her lawyers’ mistaken belief that she could not apply for the variation of a post-nuptial settlement as a stick to beat her with. In my judgment, she was wrong and they were wrong; plainly, no form of estoppel arises and Mr Mubarak has equally plainly suffered no detriment. For all these reasons the application will be refused.

[35]On the discretion point, I only wish to reinforce what the judge has said about the sensitivity of the courts of Jersey to the enforcement of foreign orders. In this respect, I commend and endorse what the judge has said in his judgment, particularly in paragraphs 142-150, which I need not set out. I will, however, quote from the judgment of Sir Philip Bailhache, the Bailiff of Jersey, in the case of the representation of Rouen and Curlew Trustees Limited, in the matter of B Trust (2006) JRC 185. During the course of his judgment, Sir Philip said this:

“If the purpose of the amended article 9 really is to protect trust assets to the extent that a manipulative spouse can evade the enforcement of a carefully considered judgment designed to do justice between husband and wife on divorce, that would seem to us to be a very unhappy state of affairs. But fortunately we do not consider it to be the effect of the statutory provisions, nor, we trust, do we believe it to have been the intention of the legislature.”

[36]In my judgment, for the record, this case falls fair and square into the category of case identified by Sir Philip; from an English perspective it is about a bad a case as it is possible to imagine. What the Jersey courts do with it is, of course, a matter for them; but they should be in no doubt that Thorpe LJ’s comment, with which this judgment began, undoubtedly reflects the view of the English judiciary.

[37]Holman J concluded his judgment with the following statement:- “I am painfully conscious that this judgment has been very long indeed and that it infringes the strictures of Lords Justices Schiemann and Judge and the Court of Appeal in Re MCA and others

[2003] 1 FLR 164

at paragraphs 80 to 84 and 98. For this, I apologise. Nevertheless, I have restricted myself to the evidence and arguments actually presented to me and citation of only a small selection of the many authorities cited to me. I have not, even now, touched upon a number of points considered and arguments deployed during the hearing. But I have dealt with the main ones and enough is enough. ”

[38]In that paragraph the judge, with characteristic modesty, criticises himself for the length of his judgment and apologises for it. In my view neither self-criticism nor apology is required. The judgment is a model of clarity and erudition, as well as demonstrating the very hard work of the judge in this case. In my judgment it is not a paragraph too long; it is plainly right; there is no arguable case that it is wrong, and the application will be refused.

Order

Application refused.