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Home > Judgments > 2008 archive

Moore v Moore [2008] EWCA Civ 1599

Application for permission to appeal in ancillary relief proceedings. Application adjourned for hearing before full bench.

The issue at stake was whether

“a substantial maintenance pending suit order is enforceable against the husband in full when the wife withdraws the divorce proceedings in this jurisdiction which gave the maintenance pending suit order its foundation”

Thorpe LJ was persuaded by counsel for the husband that the trial judge may have attached too much weight to the case of  Moses-Taiga v Taiga [2005] EWCA Civ 1013. However he goes on to warn the applicant that the process will be costly and urges him to “consider most carefully the wisdom of proceeding further in this court”.

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Case No: B4/2008/1651
Neutral Citation Number: [2008] EWCA Civ 1599
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY, FAMILY DIVISION
(MR JUSTICE BODEY)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 18th December 2008

Before:

LORD JUSTICE THORPE
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Between:

FOLASHADE MOORE  (Respondent/Petitioner)

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OSITA MOORE (AKA CLINT OGUAGHA-OBIOHA) (AKA GEORGE AMOAH)  (Appellant/Respondent)

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(DAR Transcript of
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Mr C Umezuruike (instructed by Messrs C T Emezie) appeared on behalf of the Appellant.

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.

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Judgment

(As Approved by the Court)

Crown Copyright©

Lord Justice Thorpe:

1. This is an application advanced by Mr Umezuruike on behalf of the husband in complex proceedings that came before Bodey J on 11 July 2008.

2. The root question is whether a substantial maintenance pending suit order is enforceable against the husband in full when the wife withdraws the divorce proceedings in this jurisdiction which gave the maintenance pending suit order its foundation.  Bodey J concluded that the order stood until discharged and was enforceable.  In that he may well be correct in law.  Indeed, his review of authority and principle in paragraphs 65-72 inclusive of his judgment is characteristically thorough and persuasive.  However, I have been persuaded by the oral submissions of Mr Umezuruike that there is an argument that the judge attached too much weight to brief passages in the reported case of Moses-Taiga v Taiga [2005] EWCA Civ 1013 and that that argument merits the consideration of a full bench. 

3. I have warned the applicant of the very considerable risks that he runs in pressing for a hearing on notice with appeal to follow.  Substantial costs will be incurred.  I suspect that if he fails on the next occasion he probably faces a bill for his side and the costs of the successful respondent in excess of £20,000.  I give that clear warning so that the applicant can carefully consider whether he wishes to put so much at risk.

4. His application will inevitably be viewed by the full court in the context that he has never paid a penny piece under the order for maintenance pending suit made by Wood J as long ago as 2006, and furthermore that he is himself responsible for the magnitude of the arrears by his failure to take the obvious defensive step, namely to seek an expedited hearing of his summons to challenge jurisdiction. 

5. So, although I cannot in conscience say that there is not an arguable point, I do urge the applicant to consider most carefully the wisdom of proceeding further in this court. 

Order: Application adjourned