|
Date: 27 November 2006
NO HIDING PLACE – AN EXCITING EXAMPLE OF FAMILY WORK
When I was introduced to the world of high value ancillary relief some years ago, I was presented with a problem whereby I had a final order but the Respondent was attempting to dispose of assets in order to defeat this. There were several enforcement applications before the court, when an alarmed client informed me that she had learnt that her husband was about to leave the country.
After trawling through Emergency Remedies in Family Court, I decided that my case met the criteria for an application for a Writ Ne Exeat Regno. I was directed to the case of Thaha v Thaha (1987), which I gathered was the first occasion when an application without notice for the writ in the Family Division had been granted.
The purpose of the Writ is to prevent a party from leaving the jurisdiction and transferring property before judgment can be obtained., If successful, the party will be ordered to deliver to the court their passport and other travel documents, and an order will be made restraining them from leaving the jurisdiction.
Prior to applying for the Writ, the proceedings must be transferred to the High Court and leave obtained from that court to issue the Writ.
The origin and history of the Writ dates back to the 19th Century and the amount claimed must be quantifiable. The provisions of the Debtors Act
1869 Section 6 must be satisfied in that:-
| a) |
the applicant must show that they have a good cause of action against the defendant for a liquidated claim (minimum £50). In other words the amount should be clear and certain; |
| |
|
| b) |
there must be strong evidence for believing that the defendant is about to leave the jurisdiction of the court; |
| |
|
| c) |
There must be evidence that the defendant’s absence would materially prejudice the applicant in the prosecution of their case. |
It should be noted that the standard of proof is high. I used the evidence obtained in the preliminary applications for enforcement, when it was admitted in court that the Respondent was about to leave the jurisdiction. The standard is so high because non compliance with the order will result in the immediate arrest of the Respondent, without the need for further action.
How to apply? No formal application is needed but the court will require an Affidavit in support and this should specifically address the points raised by Section 6 (above).
The grant of the order will be at the court’s discretion. You need to remember that this Writ is not actually a method of enforcement but a way of preventing the opponent from avoiding the affect of enforcement proceedings..
The sealed order should be addressed to the Tipstaff at the Royal Courts of Justice, The Strand, London, who will execute the writ.
Once the Writ is granted and executed, the Respondent will be required to give bail or security In Default, they will be brought before the court. If as in my case the Respondent still wants to leave the country, the practical result will be that security will be provided for the amount of your claim.
Kim Fellows
|
