Insights and Inspiration
Doghouse or Outhouse
08 November 2016
Two recent cases show two different aspects of the court's power to grant injunctions. An injunction is, usually, an order that somebody not do what they are otherwise entitled to do. It can also be an order that somebody do something they are not otherwise obliged to do.
In a case given the name of Ahmad & Ahmad, both aspects were on show. There, the wife asked the court to order that the husband leave the matrimonial home. At the same time she asked the judge that the husband be ordered not to sell or deal with any property, borrow more money, give away any money, or mortgage anything without giving her 28 days' notice.
The husband, the wife and the two children, and the family dog lived in the matrimonial home.
However they had been living in separate bedrooms for a year and the wife told the court that the husband had become unpredictable, was drinking heavily by himself in his room and refused to speak to her and the children. He had a habit of walking around the house in his underwear, and sometimes, in various different ways, letting it all hang out.
The wife found all this very stressful as did at least one of the children, and she had a medical expert say that she had lost weight, was insomniac, and had anxiety fears. It was the doctor's view that the living arrangements were having an impact on her health.
On the other hand the husband complained about the wife's conduct and behaviour and he went so far as to obtain a provisional apprehended violence order. By means of the apprehended violence order the husband was trying to get the wife out of the home.
The evidence was that the husband had the capacity to rehouse himself but the wife did not as she would have the children with her.
In these exclusive occupancy cases, the law has shifted over time. It used to be the case that you had to show that the situation in the home was impossible or intolerable for getting somebody out. Now, the court seems to have a much less stringent approach: would it be reasonable to expect them to remain in the home together? The question then is who should go and this is where balance of convenience comes in.
In this case the judge ordered that the husband leave, but the dog remain.
However, when it came to restraining the husband from dealing with money and property, the court said the tests were:
- is there a risk that assets will be removed from the court's reach and that of the other party?
- does the husband have control over the large majority of the assets?
- is it proper to make the order on the balance of convenience?
In this case the wife had no evidence that there was any risk the husband would dispose of assets. Her only real complaint was that he wasn't being frank in saying where they were so the wife failed on this aspect.
However, a different outcome arose in another case.
In this case, the wife's lawyers approached the court without notice to the husband. That is unusual but can be justified in circumstances where giving the husband notice of the application would defeat its very purpose. This case is reported as Lord & Castor & Anor. The kind of injunction for asset preservation is sometimes called a Mareva application.
The law is not substantially different from that referred to by the judge in the Ahmad case. The facts were very different. The husband, it was said, had a severe mental illness and had recently attempted suicide. He checked himself out of a psychiatric unit against his doctor's advice. He wanted to continue share trading, he was seen to be behaving in an increasingly erratic way, he had access to a lot of money, more than half of the net asset pool, and the wife had told the court that she had found out that he had in the past used and wasted a fair amount of money.
The judge found that there was appropriate evidence of risk and that if the court would not be able to remedy it because the money might have gone.
The legal principles were precisely the same as in the Ahmad case but there was one further thing that the wife in this case was required to do.
There are circumstances in which getting a court order to stop somebody dealing with their funds or property could cause serious harm. For example, if you had contracted to buy a home and suddenly you found the court ordered you not to borrow any money or use any cash, you would likely lose your deposit and be sued for any damages.
For that purpose anybody who comes to court asking for an order for asset preservation must offer the court an undertaking to be responsible for the other party's loss. This is called an undertaking for damages, which the wife in this case gave.
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