In protection of the first commandment – the Court's
duty to draw adverse inferences.
In the most recent judgment in the case of Al-Baker v
Al-Baker , deputy High Court Judge, Nicholas Cusworth QC
hearing the case, drew adverse inferences in assessing the extent
of the matrimonial pot, where the husband had failed to provide
full and frank disclosure of his assets in financial remedy
The duty to draw adverse inferences in situations of material
non-disclosure allows the court to decide that a party's
undisclosed assets enable them to pay a higher award to their
spouse. The duty is one piece of the Court's armour in
protecting the principle of full and frank disclosure, a principle
of great importance as highlighted in this memorable quote of Mr
Justice Mostyn in NG v SG (Appeal: Non-Disclosure)  EWHC 3270 (Fam),:
'The law of financial remedies following divorce has
many commandments but the greatest of these is the absolute bounden
duty imposed on the parties to give, not merely to each other, but,
first and foremost to the court, full frank and
clear disclosure of their present and likely future financial
resources. Non-disclosure is a bane which strikes at the very
integrity of the adjudicative process.'
The Court does not shrink away from utilising its power to draw
adverse inferences notwithstanding the overall size of the
matrimonial pot; in the case of Young v Young the Court found the
husband to have hidden assets worth approximately £45m and in
the case of Rabia v Rabia the court found the husband had
£300,000 assets he had not disclosed.
Notwithstanding the application of adverse inferences, the
number of cases before the Courts which include issues of
non-disclosure remains high, and this raises the question whether
the power is a sufficient deterrent to the would-be non-discloser?
Some call for a more extreme response by the Courts –
suggesting in the cases of non-disclosure that all assets are
transferred to the 'innocent' party. Is this the way the
Courts should be going?
Nicholas Cusworth QC's stance in the case of
Al-Baker demonstrates a highly principled but perhaps
cautious approach to the use of the 'draconian' power of
adverse inference, and reflects the desire of the Courts to find
balance between protecting the wronged party and meting out
appropriate justice to the perpetrator. In applying the law, Mr
Cusworth QC reminded himself of the principles that must be applied
when looking at the law of adverse inferences, including a
balancing exercise which acknowledged that 'it would be wrong
to draw inferences that the husband had assets which, on an
assessment of evidence, I am satisfied he had not got.' (Ewbank
J in E v E (Financial Provision)  2 FLR 233 and not to allow
this note of caution to give rise to a 'cheat's
charter' (Dame Elizabeth Butler-Sloss P in Baker v
He proceeded to consider all of the assets put forward by the
wife as owned or controlled by the husband and carefully cross
checked her information against the scant information provided by
the husband, so as not to find assets which the husband did not in
fact have. Mr Cusworth QC concluded that assets in this case,
amounted to a sum in excess of £130m, demonstrating the
effectiveness of his 'cautious' approach. The marriage was
long, some 46 years and the wife was fully entitled to her half
share, namely around £65m.
Not infrequent in cases concerning material non-disclosure, the
assets in Al-Baker are mostly located outside this
jurisdiction. In recognition of the task ahead for the wife in
enforcing his judgment, Mr Cusworth QC used other powers to assist.
He extended a worldwide freezing injunction that was in place over
the husband's assets for a further year, to October 2017 and
included in the judgment wording to make it clear (to any court, in
any jurisdiction) that the Order should be enforced. Going back to
the question of the Court's role in addressing non-disclosure,
the practical truth is that any judgment made by the Court must
also be enforceable. An award based on a conjured up assessment of
a non-disclosure's resources would likely suffer short shrift
from an international court on an enforcement application and would
ultimately make the innocent party's task in collecting any
assets harder, but perhaps of even more concern, pursuing an
unprincipled approach could seriously undermine our legal justice
The Courts are absolutely serious that financial disclosure must
be full, frank and clear. They are also equally clear about the
fairness and cogency of the justice delivered. Like many aspects of
our legal system, and as exemplified by Mr Cusworth QC, there is a
balancing exercise to be applied.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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