On Tuesday 7th July 2015, the Court of Appeal repeated the English courts’ attempts to make Michael Prest, a Nigerian based oil tycoon, obey the law. He is worth at least £37.5 million. But he keeps the courts busy by evading his legal obligations, and by refusing on various occasions even to turn up at court (for example saying he needed a holiday instead).
Mr Prest has established form for not respecting court orders. In the divorce case which began in 2008 and in which the financial aspect was finally decided in the Supreme Court in 2013, he tried to hide his wealth behind some companies, under the name of Petrodel Resources. The judges had no difficulty in telling him that he was could not do that do that, that the companies were so connected with him and controlled by him, that he must arrange for properties worth £17.5 million to be transferred to his wife. Until he had transferred £13.5 million worth, he had to pay her a share of his income, called maintenance in family law, for herself and the 4 children, at a rate of £366,000 a year or £30,500 a month. After that, there is a sliding scale.
Up to this point, the standard of proof is that something must be judged “on a balance of probabilities”. But then “beyond reasonable doubt” the criminal standard of proof began to apply, and with that, because of the possibility of imprisonment for continued disobedience.
By October 2014 the arrears of maintenance were about £360,000. On an application by the former wife to commit Mr Prest to prison for his failure to obey the law and make the payments, a High Court judge imposed a 4 week prison sentence, suspended for 4 weeks, to give Mr Prest a chance to pay. The judge ruled that he had or has the means to pay, and had refused to pay. Mr Prest said his trading company was doing badly, and he could not afford to pay. But the evidence was that he could arrange payment if he wanted – not least as he had been taking expensive holidays meanwhile, including going skiing and spending 5 weeks in a villa in Tuscany. The judge assessed the cost of such holidays as at least £270,000. Instead of obeying the judgement and paying his ex-wife, Mr Prest lodged an appeal.
Now in July 2015 the Court of Appeal has ruled against Mr Prest again. Whilst some of the properties had been transferred to Mrs Prest, they had had loans secured on them so their value was lower. Also, he had paid some bills directly, including school fees, but not paid what she was due under the 2013 court order. But none of this was enough to meet his legal obligation under the court orders on divorce.
So the court has again told Mr Prest that he is facing prison. This time, he has until 28th September 2015 to pay £360,000.
Two immediate questions:
1. Why is Mr Prest being allowed to get away with non-payment for so long? The answer lies partly in Mr Prest’s ability to fund expensive lawyers to make repeated court applications. He did not go to prison in November 2014, because (as the law quite rightly says) whilst an appeal is being considered, you do not go to prison in case you win the appeal.
2. Is it different for other people, in other circumstances? In June 2015, as was widely reported in the Press, two people were imprisoned in contempt of court proceedings. In the case of Ethan Williams, his grandmother Louise Minnock and a family friend Andrew Butt did go straight to prison as they had not obeyed a court order aimed at helping his mother Rebecca Minnock obey a court order for her to hand Ethan to his father.
The facts of both cases are very widely different. So is the law. But if the family courts are to impose meaningful sanctions on those who choose to break the law, then there is a real problem of credibility if one person can flout the law with no real detriment, and others spend time (at public expense) in prison immediately.
The answer may lie in a more speedy court process in family law, so that such cumulative use of court time (for which very low fees are paid to the courts, but a great deal of time is used up by people like Mr Prest) is kept to a minimum.
Deprivation of liberty is a very serious threat. It must be used sparingly, but it must be used by the courts to control flagrant breaches of law.
Advice from family lawyer, Hazel Wright, partner at Hunters Incorporating May, May and Merrimans.by