It has been extensively reported that Frederick Barclay, former proprietor of the Telegraph Media Group, could possibly be compelled behind bars for not paying out the £50 million it’s alleged that he owes to his former spouse following their divorce

He is 87 years previous, and it’s estimated that as lately as May this 12 months his fortune was value round £6 billion. How and why is he saying then that he can’t pay? Well, it seems his argument is that his monies are tied up in a fancy sequence of trusts. 

It seems that the matter goes to be heard in a three-day showdown sooner or later this month. It is reported he’s “terrified” to go to jail. 

So how might the Court ship Barclay to jail?

Under part 5 of the Debtors Act 1869, an individual will be dedicated to jail if he doesn’t pay a matrimonial debt if he has the means to take action however refuses.  He could possibly be despatched to jail for a most of six weeks or till the sum is paid.  Non-payment right here is an offence in opposition to the court docket itself, it’s contempt of the very best order.  

His conduct must show the character of contempt and he must be classed as a “contumacious debtor”. In different phrases, the court docket must be glad that he was actually enjoying quick and free when it got here to this debt to be able to imprison him. 

Now on the idea that it seems that he offered his luxurious yacht and used the cash for his personal ends and seems to nonetheless personal half of the non-public island of Brecqhou, he might have some hassle demonstrating to the court docket that his incapacity to pay this debt is legit. 

Since the appearance of the Human Rights Act 1998, a judgement debtor has been entitled to the protections afforded by Article 6 of the ECHR, i.e he should know upfront the case in opposition to him and any proof that was being relied on; he should have satisfactory time to arrange a defence and he has the proper NOT to present proof i.e to not incriminate himself. 

There has been an enormous debate since that time as as to whether functions of this nature, due to this fact, have a lot chew, because the respondent, Barclay on this occasion, can’t be compelled to present proof. The burden of proof would always be on Mrs Barclay and her crew.  She must show, past all affordable doubt, i.e the prison customary of proof, that for the reason that date of the judgement he has had the means to pay this excellent quantity and has refused or uncared for to pay. 

This in fact could possibly be fairly difficult if Barclay decides to not give proof and the one proof they’ve is from the household court docket, determined utilizing the civil customary of “balance of probabilities”.

The current case of Dhillon v Sampuran in 2021, nonetheless, examined the power of the court docket to think about “adverse inferences” from the respondent’s silence. It was mentioned that while silence in fact was completely allowed, an inference from a failure to present proof couldn’t show guilt. However, if the jury concludes that silence can solely be attributed to the defendant having no reply or no skill to face as much as cross-examination, then an hostile inference could also be drawn. 

It appears clear from current experiences within the media that Barclay is claiming that he has nothing and has no entry to his monies which might be held up in complicated trusts. He might run an argument that he has not had the cash to pay on that foundation and that by advantage of that has not refused or uncared for to pay this order. 

It can be very attention-grabbing certainly to see how his authorized crew strategy this forthcoming “trial”….whether or not he involves this with open fingers and offers proof freely, or whether or not he shuts up store and decides to not incriminate himself, as an alternative leaving the extremely excessive bar of proof on the door of his ex-wife. 

Either manner, in my expertise, when the jangle of the jailor’s keys is inside earshot, though events will run issues to the eleventh hour, orders typically are paid, or offers are completed to keep away from an disagreeable keep at Her Majesty’s pleasure. 

I believe it’s extremely unlikely that we’ll see Barclay in jail for this, however apparently we must watch this area. 

About the writer: Katie McCann is the Founder and Managing Partner of Lowry Legal. She is usually instructed by HNW purchasers together with entrepreneurs, enterprise house owners and people within the public eye. Katie advises purchasers on all points of household regulation, with a particular concentrate on monetary settlements and safety of wealth. 

Lowry Legal is a specialist household regulation agency that represents high-profile people, together with enterprise house owners and public figures. The agency specialises in divorce and separation, post-separation funds and cohabitation preparations, amongst different follow areas. 

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