Thursfield v Thursfield (Re Delay)

I hope that, in setting out in my judgment the chronological events, I made it plain that the first time there was a final Michigan order enforceable here was in January of this year. There were then attempts, through the receiver, to deal with the pension fund. Upon the defendant's counsel’s own reconstruction of events, I was invited to, and did, infer that it was the receiver’s frustrated attempts which triggered his advice that the claimant would have to do something in England. It seems to me that there was no undue delay following that advice because that needed the claimant's two sets of lawyers to liaise and explain from the one to the other what had been going on and to make the necessary preparation.

It is said also that there might have been an earlier application for a freezing order pursuant to the Civil Jurisdiction and Judgments Act 1982 in aid of the Michigan proceedings. So there might have been. There is no doubt that there were allegations in those proceedings of impropriety on the part of the defendant. I cannot accept, as suggested by Mr Ashworth QC in argument, that the reason the claimant did not proceed earlier was because of her own naivety. None the less I can well understand why she waited to get a final order first and why it was only when the attempts of the receiver to gain recognition here failed that she then proceeded to bring proceedings here. The result is that such delay as there has been is that the defendant has now dissipated or secreted all of his assets.

I do not consider that to be a bar to proceeding now when there is still something to be achieved. There is something to be achieved, namely the protection of the pension fund and the identification and protection of other assets. Hitherto the defendant has at least purportedly complied with this court's orders, which he has stopped doing in relation to the Michigan orders. I proceed therefore on the assumption that he will carry on complying with this court’s orders. This may be an optimistic assumption, but is no reason for giving up.

It is also said that the risk of imminent flight was over-egged in the evidence before me on 27th May. As I endeavoured to say earlier in my judgment, the impression I had at the end of that hearing was that no one really knew where the defendant was. There was certainly a risk of imminent flight, but there was also a real possibility that he had already flown and, hence, my passport order was, as I expressed it to be in my judgment (although it did not get into the order) only applicable in the event of his coming to this jurisdiction.

In those circumstances it does not seem to me that the points which were self-evidently speculative points made by Mr. Holman were either improperly made or in some way led me off the rails to make an order that I would not have made. In those circumstances the additional points that I have been asked for clarification on are dealt with thus.