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Dutt v Dutt [2005] EWCA Civ 1193

Where a party in ancillary relief proceedings had deliberately avoided disclosure of assets the trial judge was entitled to draw inferences on their financial status.

Dutt v Dutt [2005] EWCA Civ 1193

Court of Appeal: Wall LJ (25 October 2005)

Summary
Where a party in ancillary relief proceedings had deliberately avoided disclosure of assets the trial judge was entitled to draw inferences on their financial status.

Background
There were in total five appeals brought before Wall LJ arising from ancillary relief proceedings. Four appeals were dealt with in short order and dismissed leaving an appeal against the final order of the circuit judge. This too was dismissed.

Among other things, that order had required the appellant, a GP, to transfer the former matrimonial home to the respondent; made pension sharing and pension attachment orders against his two pensions and provided for periodical payments that included an element of child maintenance pending assessment by the CSA (a 'Segal' order).

Throughout the proceedings leading up the making of the order, the appellant had made almost no disclosure of income or assets, though his first Form E scheduled a long list of outstanding debts. He had failed to make periodical payments for maintenance pending suit, which the respondent had been forced to pursue through the court. He had also been the subject of disciplinary proceedings by the General Medical Council which he said could reduce his earning capacity; although the initial allegations had only resulted in a reprimand further complaints were made against him after the order was made. In the absence of disclosure the trial judge had assessed his income as £100,000 a year and stated that he had substantial assets that he was concealing.

Counsel for the appellant attacked the order on several grounds; that the judge could foresee that the appellant might be the subject of further complaints to the GMC, with consequent risk to his earning capacity and this would constitute an event that seriously undermined the original order; that the pensions sharing order was unfair given the transfer of the matrimonial home and the trial judge's comments that she feared the appellant could be facing insolvency; and that the joint live periodical payments were wrong given the respondent's future earning capacity, the fact of the pensions sharing order and the respective ages of the parties (63 and 39).

Judgment
Held, refusing permission to appeal, that each element of the order was within the trial judge's discretion. He also pointed out that if the periodical payments do cause the appellant difficulty then the route is to apply to vary or discharge the order, not appeal against it.

Specifically, he noted that the trial judge is entitled to reach an adverse conclusion about a party provided the judge explains why that conclusion was reached and that 'if the court chooses to draw inferences, it is very difficult for the defaulting party to complain'.

Read the full text of the judgment here