Jessica Reid, Dawson Cornwell
The recently reported case of Frederick Barclay (Barclay v Barclay [2021] EWFC 40) is, it seems, yet another example of a wealthy spouse refusing to comply with an English court order – here the order being a matrimonial award of some £100 million to his ex-wife following his divorce after a 34-year marriage.
It is not uncommon to see these huge divorce settlements banded about in the press, resulting in very large court orders being made. Not long after these, having already spent vast time, money and emotional stress obtaining such an order, further extensive litigation is often necessary to extract the actual payment of the money. Effectively, the issue in this case is one of enforcement – whether he had chosen not to pay and whether he can be made to pay, and if so by what means.
Sir Barclay claimed he had transferred most of his wealth to his daughter, and into a complex series of trusts, some 8 years prior – therefore not in relation to the breakdown of his marriage – and that he did not have access to it anymore. His nephews were financially supporting him, and it is suggested that they could easily have made the payment on his behalf to his ex-wife if he had authorised it.
They had managed to pay some of his own legal fees of course. Sir Barclay even turned up to court in an expensive Range Rover seemingly oblivious or otherwise nonchalant to how that presented itself in a claim he had no means to pay the sums due.
Will Sir Barclay be committed to prison if he does not pay, with this being the most draconian of orders? Committal is rarely actually seen in practice, and I very much doubt it will get that far. In order to even achieve that outcome, or come close to it, Lady Barclay has another hurdle to climb – as the judgment creditor she has to prove that since the date of the judgment, he has had the means to pay the sums due but refused or neglected to pay.
This must be done so on the criminal standard of proof, which is beyond all reasonable doubt, therefore higher than the civil standard of proof applied in her own divorce litigation. One can only assume that everything was done by Sir Barclay and his family to ensure their complex trust structures place reasonable doubt on this task. He will have the most complex of webs to shield any resources he has at his disposal. It remains to be seen what, if anything, she will be able to recover – I think she has a long road ahead of her unfortunately.
Of alarming note in this case is how much money Lady Barclay has spent in legal fees to even get to this point – it is said over £1M. That has not all been paid, and thus one questions to what extent Lady Barclay’s lawyers are acting on assurances that their fees will be paid by someone other than Sir Barclay, if not him.
It is unthinkable to consider why they haven’t turned the tap off on her with such outstanding fees. Clearly her lawyers now have a vested interest in seeing this case through to its conclusion, in order to ensure payment to them as well as Lady Barclay – and one wonders to what extent is this now driving how matters are resolved.