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(Court of Appeal; Wall LJ and Holman J; 3 April 2009)
The wife issued an English divorce petition; the husband issued a Nigerian divorce petition. The husband was ordered to pay maintenance pending suit to the wife while the English court investigated the issue of jurisdiction. The husband failed to pay any maintenance, in breach of the order. After the Nigerian court granted the husband a Nigerian divorce, the wife discontinued her English divorce petition. However, the English court held that the husband was still required to pay the wife the arrears of maintenance pending suit, and made a charging order in respect of the arrears against a property beneficially owned by the husband. The husband sought permission to appeal. The Court of Appeal required the husband to give security for costs in the sum of £15,000 by 23 March 2009, the hearing date for the application being 2 April 2009. On the 26 March 2009 the husband sought variation of the order for security for costs.
Although the court was prepared to assume that there was jurisdiction to go behind the order for costs for security, the sum set was a matter of discretion, and in all the circumstances the sum required would not be reduced. Despite the husband's evidence from estate agents, the court was not satisfied that there was sufficient margin in the property owned by the husband to provide the wife with safe and good security in the event that the husband's appeal was unsuccessful. However, the timing of the order was a different issue. Justice required that the husband's application for permission to appeal go ahead, on the basis that the husband had additional time to make the relevant payment. As it was now highly unlikely that the case would be heard before May 2009, the husband was to be given until 30 April 2009 to raise the money, effectively 6 weeks from the date of the application to vary the order for security for costs. The appeal would stand dismissed if the husband did not pay by that date.
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