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Financial Remedy Update, September 2021

Rose-Marie Drury, Principal Associate at Mills and Reeve, consider the important news and case law relating to financial remedies and divorce during August 2021.

Rose-Marie Drury
, Principal Associate, Mills and Reeve

As usual, the update is divided into two parts.

A. News

Landmark ruling in "bride price" dispute

The Guardian reports that a judgment is awaited on "bride price" – or mahr.  Under sharia law, the mahr – a gift or promise of a gift to the wife by the husband – can be asked for by the wife at any time during the marriage or on divorce.  It is intended to provide the wife with financial security in circumstances such as the husband's death.  Under civil law however, the mahr cannot be claimed in full in the same way on divorce; it will be part of the overall financial arrangement that the family court considers.  In a case currently being heard in the Central London County Court, the wife is demanding payment of £55,000 pursuant to an oral mahr. The written mahr only covers £5,005. The case is thought to be the first time an oral mahr contract has come for determination before the English court. 

Eleven Practice Directions updated

Practice Direction Update No 5 came into force from 15 July 2021 and amends eleven Practice Directions:

Domestic Abuse Act: statutory guidance consultation launched

The Home Office has issued a consultation seeking views on draft domestic abuse statutory guidance which will support the implementation of the definition of domestic abuse at sections 1 to 3 of the Domestic Abuse Act 2021. The key objectives of the guidance are to:

For details of the consultation, which closes on 14 September 2021, click here.

Emotionally Charged: costs on divorce and dissolution report published

The Nuffield Foundation has published a new report which presents analysis from its study, Finding Fault, based on data about costs in divorce and dissolution proceedings collected between 2015 and 2017. The report identifies a range of problems with the current costs regime, including costs not being accessible to all petitioners, a decision-making process that is procedurally unfair to respondents and the exacerbation of conflict between divorcing couples. It considers the implications of the new legal framework for costs when the Divorce, Dissolution and Separation Act 2020 (DDSA 2020) comes into force in April 2022.

The report's recommendations include providing that:

Transition from paper to online divorce applications

The Family Procedure Rules 2010 will be updated to confirm that from Monday 13 September 2021, practitioners must submit applications for divorce online using MyHMCTS.  The only exceptions are the following applications, which must be filed on paper at Bury St Edmunds Regional Divorce Unit:

There will be a three-week transition period after the online divorce service is mandated for use from 13 September 2021. D8 divorce papers will still be processed until close of business on 4 October 2021, but all paper applications received from 5 October 2021 will be returned.

Meanwhile, HMCTS has also confirmed that use of the online divorce portal will be mandatory only for legal representatives acting for a petitioner. Those acting for a respondent will still be able to respond on paper after 13 September 2021, although HMCTS anticipates that most will use the online portal, as they will need to do so when acting for a petitioner. HMCTS is considering making use of the online portal mandatory for legal representatives acting for a respondent when the Divorce, Dissolution and Separation Act 2020 comes into force in April 2022. 

Closure of Liverpool and Newport divorce centres

HM Courts and Tribunals Service has announced the closure of the Newport and Liverpool divorce centres. The Newport divorce centre closed on 30 July 2021 and the Liverpool divorce centre will close on 31 August 2021.

Bury St Edmunds will remain open to deal with legacy work and the small amount of work that continues to be processed on paper, including applications for judicial separation, nullity and contested applications. The Courts and Tribunals Service Centres (CTSCs) will continue to deal with all calls relating to the divorce process in the first instance. HMCTS has been transitioning work from Newport and Liverpool to Bury St Edmunds since April 2021 and all new paper applications are now being processed by Bury St Edmunds.

Flexible court operating hours

HMCTS has published an evaluation report by IFF Research and Frontier Economics for the flexible operating hours in courts pilot scheme, which took place at Manchester Civil Justice Centre and Brentford County Court for a period of six months, from 2 September 2019.

The evaluation found "indicatively positive impacts" for access to justice and public user experience, "indicatively negative impacts" for the working lives of legal professionals and equality and diversity, "no or neutral impacts" for the other four impact measures (speed of delivery of justice, efficiency of use of courtrooms, quality of justice and cost of justice), and no "strongly positive or negative impacts" across any measures.

In light of these findings, the report suggests that, if flexible operating hours are pursued more widely in future, participation might need to continue to be "a matter of choice" for some members of the public (including those with childcare responsibilities, who are financially vulnerable or who do not live near the court) and legal professionals.

Call for evidence on dispute resolution in England and Wales

The government has launched "a major call for evidence": Dispute resolution in England and Wales, seeking feedback on how disputes in the civil, family and administrative jurisdictions might best be settled away from the court room.

Responses are sought by 30 September 2021 from all interested parties, the judiciary, legal profession, mediators and other dispute resolvers, academics, the advice sector, and court users; particularly those with relevant data, or experience of dispute resolution within and outside the courts system.

The aim is for a holistic dispute resolution system, supporting and directing users to the appropriate dispute resolution option for high quality, timely, cost effective, proportionate and enforceable resolution of their disputes. "Alternative" methods of dispute resolution need to be "mainstreamed" within online processes.  To take part, click here

B. Cases

Botwe v Brifa [2021] EWHC 2307 (Fam)

The Wife ('"W") sought a declaration pursuant to s51 and s55 Family Law Act 1986 that she was married to the Husband ("H"). The parties were married in 2017 in Ghana in accordance with tribal custom and the marriage was subsequently registered in Ghana. There was no dispute as to the validity of that marriage, the dispute arose as to whether the parties had been divorced by tribal custom in Ghana and, if so, if the court should recognise that divorce.

Cobb J found that a customary divorce took place in Ghana in August 2019 which was then formalised. Had W wished to object to the customary divorce there had been a mechanism for her to do so but she had not. 

On the issue of whether or not the divorce should be recognised in England and Wales pursuant to s46 Family Law Act 1986. The divorce had not been obtained by judicial or other proceedings. The fact that the divorce had subsequently been registered was simply evidence that a customary divorce had taken place and was not part of the divorce itself.

The customary divorce procedure was effective to achieve a divorce in Ghana and Cobb J found it was likely the parties had been domiciled in Ghana at the time and therefore the requirements of the statutory test in s46(2)(a) and s46(2)(b)(i) were met. However, the parties had both been habitually resident in the UK throughout the period of one year immediately preceding the customary divorce and so therefore the statutory test in s46(2)(c) Family Law Act 1986 was not met and the divorce could not be recognised.

P v P (Divorce Jurisdiction) [2021] EWHC 2306 (Fam)

The parties met in 2014 and married in September 2016 in Bulgaria. The parties separated in 2019. In January 2020 the Wife ("W") applied for a divorce online in England and her petition was issued on 29 January 2020. The same petition was subsequently issued with the same case number on 20 February 2021 and/or on 21 February 2021. On 4 February 2020 the Husband ("H") applied for a divorce through the Bulgarian court. H confirmed his intention to defend the English divorce proceedings on the basis of the proceedings in Bulgaria and the English proceedings were stayed. H sought to argue that the English court was only seised on the latest date that W's petition was issued.

As the divorce proceedings began prior to 31 December 2020 the provisions of BIIR continued to apply. 

In July 2021 the Bulgarian court confirmed that it considered it was not the first court seized in the case and that the English court had been seized when W began proceedings online on 12 January 2020.

Cobb J confirmed that the court was seised in accordance with Article 16 BIIR when the petition was lodged with the court. That was 12 January 2021. Whilst it was not necessary for Cobb J to determine whether the time the court was seised was when W received the receipt for her on-line submission or when she received the later confirmation once payment had been made he indicated it was likely it was the earlier time. It was not necessary for the court to issue the proceedings nor for actual service to be effected to establish seisin under Article 16.

Whilst W had included on her online draft jurisdiction on the ground H was habitually resident in England for unknown reasons this was omitted from the issued petition. Cobb J granted permission to W to amend the petition to include this jurisdictional ground if necessary.

Cobb J went onto determine that H was habitually resident in England at the time the petition was issued on the basis that he had lived in England for over 10 years, he had acquired British Citizenship, in 2016 he purchase a property in London, had retained it and evidenced no intention to sell it, he was employed throughout the period and continued to be so for the NHS at a London hospital, he travelled to Bulgaria in December 2019 for a holiday and returned in January 2020. He then travelled to Bulgaria briefly for approximately a week around the parties' child's birthday in February 2020. Cobb J was not satisfied that, as H claimed, he had intended to relocate to Bulgaria from a date prior to his return from his Christmas break there in 2019 and had been delayed because the Tipstaff had his passport from March 2020 to November 2020. Cobb J was persuaded that H had filed no less than four statements/position statements between March 2020 and November 2020 in the wardship proceedings and in none of those did he indicate he was planning to return to live in Bulgaria and had been frustrated by the Tipstaff. In contrast H's statement in support of his application for the restoration of his passport sought to play down any suggestion he was a flight risk and emphasised his connections with his centre of interests in London. 

Re Z (No.2) Schedule 1: Further legal costs funding order; further interim financial provision) [2021] EWFC 72

The judgment is the second judgment in this matter following on from Cobb J's first judgment Re Z Schedule 1: Legal costs funding order; interim financial provision) [2020] EWFC 80.

Following Cobb J's first judgment the Mother ("M") moved from North East England to London and rented a property in the vicinity of Regent's Park costing £6,000 pcm, more than the £4,750 pcm Cobb J had allowed to find suitable accommodation in London. M maintained that properties in that price bracket were unsuitable.

In February 2021 the child, Zoe, was diagnosed with heart disease and there were further proceedings between the parents relating to welfare/medical treatment.

In June 2021 Mostyn J gave case management directions on the welfare/medical treatment issues and made interim awards pending the hearing of M's claim for additional financial relief including: i) £22,000 to part-fund the welfare/medical treatment application on the basis the balance of funding previously awarded in the main Schedule 1 application of £33,1551.20 would be applied towards this, ii) £20,000 to fund her representation through to the First Appointment, iii) £5,000 to cover section 8 issues, iv) £10,000 to cover additional childcare costs over and above £6,000 which the Father ("F") had agreed to pay. 

The matter came back before Cobb J to determine M's further claims for legal costs and interim financial provision as well as case management to a private FDR, primarily whether or not F, who ran the 'Millionaire's Defence' should answer M's questionnaire.

Cobb J was satisfied that F had given adequate disclosure and given the way in which he presented his case it was not proportionate or necessary to require him to answer questions about his holidays, travel, domestic help, business expenditure, credit card expenditure or sums spent on American attorneys. However, in the context that Covid-19 would have had a short-term and probably long-term impact on F's business interests Cobb J required F to provide a letter from his accountants setting out his gross and net income over the last three tax years to provide a broad marker by which to understand the 'Millionaire's Defence' in the context of the case

In relation to M's claims for increased interim financial provision:

i) M claimed an increase in nanny provision. Although Cobb J had initially fixed the costs of an experienced maternity nurse at £5,600 pcm reducing after three months to £4,000 pcm. The maternity nurse's hours had not been reduced as anticipated following Zoe's diagnoses and F had continued to pay at the full rate increasing to £6,000 pcm. M asserted she needed to spend £9,038 pcm. Cobb J found that given the need was temporary and a more proportionate cost-effective housekeeping/nanny provision could be arranged for the medium and longer term post Zoe's recovery from her surgery it was reasonable to allow the additional costs of the maternity nurse until the FDR and beyond that date M's budget should be tailored to include nanny provision at a more conventional cost. 

ii) M claimed an increase in domestic help to £2,200 pcm from £1,200 pcm. Cobb J rejected the increase finding no justification on M's evidence on the basis that she rented a three-bed apartment, had 14 hours per week cleaning and full-time professional care for Zoe this was more than sufficient.

Dealing with M's claims for costs Cobb J expressed dismay that M had been billed sums significantly in excess of the amount he had awarded to cover the Schedule 1 litigation and which Mostyn J had ordered in relation to welfare/medical litigation. Cobb J found that additional costs were inevitable in the welfare/medical treatment case given the unexpected prolongation of the haring by two days, it was likely that additional and unnecessary costs were incurred as a result of the maternal grandfather's direct engagement with the process and his contact with M's solicitors, M's solicitors paid insufficient regard to the financial parameters set by the court. He further noted that F's projected costs between now and the FDR were £70,000.

Cobb J ordered:

(i) M be permitted to recover two thirds of the sum claimed by way of overspending of £52,088 to be further reduced by a further 30% for a notional standard assessment giving a total of £24,307.

ii) £60,000 to cover M's costs to FDR as against a budget of £62,280.

iii) £1,500 pcm to deal with welfare issues with F to also pay for the mediator as against M's budget of £5,500 pcm.

Finally in relation to M's claim for an interim lump sum to repay a loan to her father of £25,000 shortly after the conclusion of the hearing M instructed her solicitors and Counsel that the lesser sum of £8,500 was loaned. Cobb J expressed concern that M had misled the court regarding the loan and found this was deliberate. In his judgment though he declined to take further action in relation to the perjury given M corrected the falsehood before he adjudicated on it and the interests of justice would not be served by exposed M to further satellite litigation. Cobb J refused M's claim in respect of any alleged debt being far from satisfied as to the existence of the loan or the extent/value of the loan. He rejected the submission that the loan had caused a strain in the relationship between the maternal grandfather and M or that even if it did exist it would be right to prioritise the repayment to him at this stage.

Azarmi-Movafagh v Bassiri-Dezfouli [2021] EWCA Civ 1184

The Husband ("H") and the Wife ("W") married in 2007. The marriage ended in December 2017. The parties were both in their 50s and had one child, T, who was age 8.  H had been acquitted in criminal proceedings but findings of fact were made against him in Children Act proceedings that he had been violent towards W.

W practiced as a barrister and a substantial proportion of her income derived from rental properties she owned prior to the marriage. W also owned the FMH and the total value of the assets was £2.374 million net of CGT and £1.781 million net of W and H's debts.  H had no assets and lived in a rented one bedroom flat in receipt of universal credit. During the marriage H had a significant caring role for T. H's debts of £257,000 largely related to costs he had incurred in the financial proceedings, Children Act proceedings and criminal proceedings.

At the conclusion of the final hearing Judge Robinson concluded that this was a needs case and H needed £400,000 to buy himself a property suitable for T to come and stay. The judge ordered payment of a further £25,000 to cover costs of purchase and the purchase of a small car. Dealing with H's debts the judge awarded H the sum of £200,000.

W sought permission to appeal which was granted by Cohen J. Determining the appeal Judd J allowed the appeal to a limited extent on the basis that the £200,000 referable to H's costs should form a charge on the property as a percentage of the purchase price to be repayable to W on H's death, remarriage or permanent cohabitation. Given H's age Judd J did not consider it realistic for the charge to be realised when T turned 18. She went onto make a costs order of £25,000 against H because W had succeeded in part on her appeal with that sum to be added to the charge.

Both parties sought to challenge the order of Judd J although W conceded she did not challenge the sum of £425,000 awarded to H for his needs. Giving the lead judgment of the court of appeal King LJ (with whom Moylan LJ and Newey LJ agreed) held that the order made by Judge Robinson which allowed the parties to achieve a clean break could not be regarded as being outside his wide discretion such that it was appropriate for his order to be altered on appeal. Further Judd J was in error making an order placing a charge on H's property without having heard submissions on the point and in circumstances where neither party sought such an outcome. She further commented that such an order was regarded by many as outdated and to be one that is rarely used.

King LJ gave guidance that whilst there was no specific rule which require a judge to carry out an analysis of a sum sought for costs by reference to the principles applicable to costs order in cases where it was argued that an order substantially in excess of the sum required to meet a parties' assessed needs is sought in order to settle outstanding costs or debts referable to outstanding costs the judge should:

i) Consider whether the case was one in which consideration should be given as to the making of an order for costs under FPR 28(6) and (7) in particular by reference to FPR PD 28 para 4.4;

ii) Whilst not carrying out a full costs analysis, the judge should have firmly in mind what the order which they propose to make by way of addition a lump sum to meet a party's costs would represent if expressed in terms of an order for costs. To do this would act as a cross check of the fairness of the proposed order.

Although the lump sum ordered approached the level of an indemnity costs order this did not fetter the court's discretion to make the order.

HM Attorney General v Hartley [2021] EWHC 1876 (Fam)

HM Attorney General made a Part 19 application to the High Court for permission to bring committal proceedings against Philip Hartley, the substantive family proceedings having already concluded. The Defendant, Philip Hartley, failed to attend the hearing of the matter.

Keehan J was satisfied that the date of the committal application, or application for permission to bring a committal application, was key in determining whether the family proceedings were existing or had concluded. At the date the application for permission was issued the family proceedings had concluded and therefore the Attorney General had rightly issued the application in the High Court. Although the alleged contempt could have been articulated as a breach of a court order the actions relied on i) did not interfere with the outcome of the substantive family case but interfered with the administration of justice more broadly and ii) the actions post-dated the conclusion of the family proceedings. The alleged contempt was therefore more appropriately formulated as an interference with the due administration of justice and more property fitted within the scope of FPR r37.3(3).

AD v BD (Financial Remedies Appeal) [2021] EWFC B48

The Wife ("W") and the Husband ("H") were in a relationship from 2000, married in 2004, separated in July 2018 and divorced in 2019. W was 52 and H was 48. There were three children of the marriage age 16, 15, 13 and 10. After the birth of the parties' second child W had been made redundant and the parties had agreed she would care for the parties' children while H pursued his career.

At first instance the judge at the final hearing had found the net assets to be £1.4 million and ordered that W would receive £952,555 and H £450,000 from the proceeds of sale of two properties with any additional capital after that to be split equally. Both parties would have to discharge their debts from their respective shares of the proceeds of sale leaving H with £211,860 and W with £842,555 net. Both parties would retain their respective pensions (W's was £360,90 as against H's of £156,240). W was found to have an earning capacity of between £12,000-£15,000 and was unlikely to start work in a new field until September 2021 when the youngest child would start secondary school. Further H was ordered to pay global maintenance of £3,000 pcm reducing to spousal maintenance at the rate of £!,860 per month once a child maintenance assessment had been concluded until September 2022 and thereafter £860 per month until H's retirement.

H appealed on the basis that: i) the assessment of the parties' respective needs was unbalanced and unfair, ii) the judge erred in finding he had a mortgage capacity of £350,000, iii) the division of capital was unfair and fell outside the reasonable bounds of the judge's discretion, iv) the judge failed to have adequate regard to the clean break principle and ordered the payment of maintenance that was excessive in amount and duration.

Determining the appeal Judge Vincent found that i) and iii) the judge had taken a different approach to H's needs compared to W's which was not justified. H's needs were 'pared to the bone' whilst W's were not scrutinised in the same way. The judge had found H should incur debt of £350,000 and end up with a house worth around £500,000 whereas W received nearly £250,000 in excess of her assessed housing needs debt free. ii) The judge's finding that H had a mortgage capacity of £350,000 was sound and based on a thorough investigation of his income and the evidence available in the form of mortgage quotes. However, the court was wrong to conclude that the existence of H's mortgage capacity was a good reason to depart as substantially from equitable sharing of matrimonial property as the judge had. iv) The judge should have considered whether maintenance could come to an end at an early stage with Judge Vincent noting that W would be able to free up some equity by downsizing once the youngest child had left school.

Judge Vincent found it would not be proportionate to remit the case for a further hearing and therefore substituted an order that W should receive £752,555 from the proceeds of sale of the properties and H £650,000. This would leave W with £642,555 net capital and H £411,860. He considered that W should continue to receive maintenance at the rate of £1,840 pcm until September 2022 and thereafter at a rate of £840 pcm. Dealing with the issue of the term of any maintenance order he considered it should be payable in the same terms as the original order until H's retirement. W was unlikely to be able to increase her pension but she would not be able to survive on her income and pension alone for many years.

In determining costs of the appeal Vincent J ordered W to pay £12,500 towards H's appeal costs of £18,985.

Dhillon v Sampuran [2021] EWFC B49

In June 2019 DJ Duddridge approved a final consent order within financial remedy proceedings for the Husband ("H") to pay the Wife ("W") a lump sum of £230,500 payable in two instalments, £15,500 by 24 April 2019 and £215,000 by 1 August 2019. The first instalment was paid but the second was not. A judgement summons was issued by W. In December 2020 HHJ Gibbons found that H had or has had the means to pay the second instalment but had refused to do so. H was given permission to file a statement setting out any mitigation he sought in relation to his breach of the order and listed a hearing on 14 January 2021. H did not file a statement and shortly before the hearing on 14 January 2021 he made an application for an adjournment stating that his flights from Delhi had been cancelled. H's solicitor confirmed to W's solicitors on 12 April 2021 that funds would be received that day. They were not. Another email on 14 April 2021 indicated that funds would be paid that day but they were not. H produced a heavily redacted bank account statement showing that on 9 April 2021 there must have been at least £400,000 in the account because two payments were made on 15 April 2021 to Hughes Fowler Carruthers for £250,000 and £150,000 respectively. 

Considering the matter on 16 April 2021 HHJ Gibbons considered that it was appropriate to impose a committal order. HHJ Gibbons noted that the maximum sentence was a period of 6 weeks. There were aggravating features in relation to H's fault namely that he had repeatedly sent emails indicating the money was being transferred and his emails on 12 and 14 April 2021 in particular had served to delay the process of enforcement and prejudiced the Wife. The final consent order had further provided for H's release from an undertaking not to dispose of or otherwise deal with an ISA with a value of £195,000. It was not known what had happened to the proceeds of the ISA but it seemed likely H had encashed this and kept it for himself. HHJ Gibbons imposed four weeks imprisonment  suspended for a period of 14 days to allow H to comply with the order.

KMM v NAM [2021] EWHC 2300 (Fam)

The Husband ("H") was 63 and had been born in Scotland. His mother was Scottish and his father was English.

The Wife ("W") was age 46. She was born in Iraq in 1974. In around 1996 after her family fell out with the regime in power in Iraq W sought to escape from the country as did other members of her family. W arrived in the UK as a refugee in or around late 1996. She was granted temporary leave to remain and settled in Glasgow.

The parties met and married in Scotland in December 1999. They commenced their married life in Glasgow and subsequently moved to Aberdeen where they remained until December 2011 when they moved to England.

H claimed the move to England was because W had become unhappy living in Scotland and made It clear that she wanted to live in England. W said that whilst she would have preferred to live in England the move was a joint decision.

After leaving Scotland the parties spent 6 months in Middlesbrough where H obtained qualifications to work in England. H then obtained a job in East London/Essex and the parties purchased a home in Ilford funded from the sale of property in Scotland.

In 2016 the parties agreed that H would seek employment in Dubai and the family would move there. H said the move took place because W wanted to live in the sun in a Muslim Arabic country. The move was never intended to be permanent and the parties kept their property in Ilford renting it out on a one year rolling tenancy. H indicated his plan was to move back to England when he reached 65 and his working visa would expire.

On 27 May 2021 H issued divorce proceedings in England on the basis he was domiciled in England and Wales. W indicated in her acknowledgement of service that she was not domiciled in England and Wales and challenged jurisdiction on the basis that H was domiciled in Scotland or the UAE.

In subsequent weeks H claimed he was not domiciled in England and Wales and was domiciled in Scotland. He asked for his petition to be dismissed on the basis the court lacked jurisdiction. W accepted that the English court did have jurisdiction and said that both she and H were domiciled in England and Wales.

Sir Jonathan Cohen found H was domiciled in England. He was satisfied that H did not move to England against his will so as to undermine his ability to form a domicile of choice. In an ideal world he might have preferred to be living in Scotland but it was more important to him to live with his Wife and daughters in a place where they could be happy. The fact H took into account W's preference to live in England rather than Scotland did not subordinate his decision into one driven by external pressures. It was clear that the move to England had been permanent, the parties had sold their homes in Scotland, purchased a substantial home and enrolled their daughter into school. When they moved to Dubai they ad kept the home in England so it would be available to them on their return.

H's fall back position that he had lost his domicile of choice in England by the time he filed his petition for divorce was not made out. The parties intended to return to live in Ilford after leaving Dubai and as at 27 May 2021 that remained H's intention. It was only on 4 June 2021 that H left the matrimonial home and moved into a hotel and rented apartment.

Sir Jonathan Cohen found he did not need to consider W's domicile but commented it seemed very likely that she had acquired a domicile of choice in England. It was common ground she preferred England to Scotland, as a refugee from Iraq there was no other country to which she had formed a connection other than England, she became a British citizen and there was no reason for her to be in the UAE other than for H's work.

Haskell v Haskell [2021] EWCA Civ 1295

In May 2021 Moor J ordered the Husband ("H") be committed to prison for 6 weeks unless he paid the sum of £50,000, which he had been ordered to pay to the Wife ("W") by way of maintenance. H appealed on the basis that Moor J could not have been satisfied beyond all reasonable doubt that he had or has had £50,000 in liquidity and had not paid the same such that the court could be satisfied he was in default by refusal or neglect.

Giving the lead judgment of the Court of Appeal with which Nugee LJ agreed Underhill LJ found that the judge had been entitled to make a committal order if he was sure that £50,000 had not been paid. There was no rule requiring him to have explicit evidence at the time of the committal hearing that the position had not changed since the statement in support of the judgment summons. What was required would depend on all the circumstances of the case, including such inference as was proper for the judge to draw from the evidence he did hear, which might include an inference that unless there were some reason to believe to the contrary the original default was continuing.