ANCILLARY RELIEF/APPEALS: Radmacher v Granatino [2008] EWCA Civ 1304

14 JAN 2009

(Court of Appeal; Wilson and Lawrence Collins LJJ; 3 October 2008)

The wife had been ordered to pay the husband a lump sum of £5,560,000. She had failed to pay this sum, or to pay any of the interim periodical payments ordered to the husband, or any of the periodical payments ordered for the children, or to fund, as ordered, the purchase of a property in Germany for the husband to occupy during contact time with the children. The wife sought permission to appeal all the judge's orders. The husband had obtained freezing orders against bank accounts held by the wife, but it was not clear whether any of the relevant accounts retained any funds in them.

The court granted permission to appeal, but attached conditions: the wife was to bring a sum of money into England and placed in a secure environment, that is an account in the jurisdiction in the joint names of two English firms of solicitors. The security was to cover not only the lump sum and interest, and the sum for the purchase of the German property, but also the husband's costs, including his costs of the appeal, within 28 days. The wife was also required to comply with the orders for periodical payments to the husband and for the children within 14 days. The relevant rule was Civil Procedure Rules 1998, 52.3(7) (an order giving permission may be made subject to conditions) rather than CPR 52.9(1)(c) (the appeal court may impose or vary conditions on appeal) as the latter applied to grants of permission to appeal already made. Although CPR 52.3(7) did not include the requirement that there be a 'compelling reason' before any condition could be imposed, conditions could only be imposed if such a reason existed. In this case there was a compelling reason in the wife's attempt to evade enforcement. There were several gross and subsisting breaches of the judge's orders. The court had jurisdiction to make order for costs of appeal under CPR, r 25.12: while Family Proceedings Rules 1991 did not provide for the CPR 1998 to apply to family proceedings, FPR 1991 did not apply to the Court of Appeal.

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