Moses-Taiga v Oghenerume

Factual and Procedural Background

This opinion concerns an application to strike out an appeal for which permission was granted conditionally by the court on 14 June 2004. The conditions required the respondent husband to pay specified sums totaling approximately £150,000 within seven days to the wife's solicitors and into a joint solicitors' account, as well as to comply with a monthly maintenance payment of £25,000 pending suit. The husband obtained a stay on part of a maintenance order, reducing his monthly obligation temporarily. The court warned the husband that failure to pay the monthly maintenance would be viewed very negatively. Despite this, the husband failed to make any payments from 14 June onwards, resulting in arrears and causing financial hardship to the wife and her solicitors. The wife’s precarious financial situation and inability to prepare for an impending Family Division hearing on 15 November 2004 due to lack of funds prompted this application.

Legal Issues Presented

1. Whether the husband's persistent non-payment of maintenance pending suit and related costs constitutes a compelling reason under CPR 52.9(2) to strike out the appeal granted to him conditionally.
2. Whether the court should vary or revoke the stay on part of the maintenance order granted on 14 June 2004 due to the husband's non-compliance.
3. Whether the sums held in solicitors' joint account should be released to the wife's solicitors in light of the arrears and non-payment.
4. Whether the appeal notice should be struck out unless the husband complies with specified payment conditions within defined timeframes.

Arguments of the Parties

Appellee's Arguments

• The wife’s counsel characterized the litigation as extraordinarily complex and expensive, caused entirely by the husband’s determination to avoid providing financial support to the wife and their children.
• The husband has employed every tactical device available to obstruct payment and delay proceedings both in this jurisdiction and abroad.
• The wife is in a financially desperate position, having resorted to pawning jewellery, borrowing from family, and exhausting credit facilities.
• The wife's solicitors have been unable to prepare adequately for the upcoming trial due to lack of funds caused by the husband's non-payment.
• The appeal should be struck out unless the husband pays the arrears and future maintenance pending suit as they fall due, and the £90,000 held in the solicitors' joint account should be released to the wife's solicitors immediately.

Appellant's Arguments

• The husband’s counsel argued that the stay granted on 14 June 2004 should not be revisited or varied.
• It was submitted that the sum of £90,000 held in the solicitors' joint account was intended to remain there pending the outcome of the trial on 15 November 2004.
• As a last resort, the wife could seek assistance from a local authority.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
A v A [2001] 1 FLR 377	Establishing precedent for including a monthly sum for the wife's solicitors within maintenance pending suit to enable litigation preparation.	The court recognized and applied this precedent in upholding the order for maintenance pending suit that included payments to the wife's solicitors.
G v G [2003] 1 FLR 71	Further affirmation of the principle that maintenance pending suit can include sums payable to solicitors for litigation preparation.	The court cited this decision to support the order made by Singer J and to emphasize the consequences of breach obstructing the wife's ability to litigate.
Hammond Suddard Solicitors v Agrichem International Holdings Ltd [2001] EWCA Civ 2065	Interpretation of CPR 52.9(2) regarding compelling reasons to strike out an appeal notice for non-compliance with orders.	Referenced in the context of whether persistent non-payment justifies striking out the appeal under CPR 52.9.
Carr v Barr Cotton [2002] EWCA Civ 789	Application of CPR 52.9 powers where non-compliance with orders related to judgment sums or costs may justify striking out appeals.	Considered by the court in assessing whether the husband's breaches provide a compelling reason to strike out the appeal.
Bell Electric Ltd v Aweco Appliance Systems GmbH & Co KG [2002] EWCA Civ 1501	Further authority on the exercise of CPR 52.9 powers in cases of non-compliance with court orders.	Used to support the court's decision to exercise its powers to strike out the appeal unless conditions are met.

Court's Reasoning and Analysis

The court began by outlining the conditional permission granted on 14 June 2004, emphasizing that the husband was warned that failure to pay the monthly maintenance of £25,000 would be viewed very seriously. The husband’s subsequent complete non-payment, including arrears predating the order, was a breach of these conditions and caused serious financial hardship to the wife and her solicitors, undermining her ability to prepare for trial. The court noted the importance of maintenance pending suit payments not only for the wife’s sustenance but also to enable effective litigation, citing established precedents that payments to solicitors form part of maintenance pending suit.

The court found the husband’s conduct to be attritional and deliberately aimed at depriving the wife and children of financial support and the means to defend the appeal. Under CPR 52.9(2), the court must only exercise its power to strike out an appeal when there is a compelling reason, which the court found to be clearly present due to the husband’s persistent breaches.

Although CPR 52.9(3) restricts certain powers when a party was present at the permission hearing, the court noted the wife's presence was fortuitous and declined to allow this to prevent the court from striking out the appeal under CPR 52.9(1)(a). The court also held that it was within its discretion to vary the stay granted on 14 June to reflect the husband’s non-compliance, including revoking the benefit of the stay for the unpaid maintenance.

The court accepted the wife’s counsel’s proposal to release the £90,000 held in the solicitors’ joint account to the wife’s solicitors to partially satisfy arrears and to impose conditions requiring the husband to pay arrears and future maintenance promptly, failing which the appeal would be struck out. The court emphasized that these orders would remain in place until the Family Division hearing on 15 November 2004, which would determine jurisdictional issues and the ultimate course of the proceedings.

Holding and Implications

The court GRANTED the application to strike out the appeal unless the husband complies with specified payment conditions. The orders granted include:

• The sum of £90,000 held in solicitors' joint account to be paid to the wife's solicitors by 4pm on 7 October 2004, with any interest to be returned to the husband.
• The appeal notice to be struck out unless the husband pays within 14 days the following sums:
  • £21,378 in respect of arrears of the legal fees element of maintenance pending suit;
  • £67,996 in respect of the aliment element of maintenance pending suit;
  • The wife's costs of the application, assessed at £8,227.64.
• The appeal notice to be struck out unless the husband pays in full both elements of the maintenance pending suit order (£39,000) as they fall due on 28 September 2004 and 28 October 2004.

The direct effect of this decision is to enforce compliance with maintenance pending suit orders and to ensure the wife’s ability to litigate effectively. No new legal precedent was established; rather, the court applied existing principles and procedural rules to sanction non-compliance and maintain fairness in the litigation process.