Case No. EWFC-43

15.On 19th January 2022 the wife (acting now as a litigant-in-person) issued an application for a variation/capitalisation of the periodical payments order. 16.Forms E were again produced. The husband again instructed Levison Meltzer Pigott. The husband, as required by Form C, produced a Form E dated 21st March 2022. Again, on the face of it, this Form E gave comprehensive disclosure of the husband’s present and likely future income and capital position at that time. Again, it fully disclosed the progress of the husband’s departure agreement with the SS Company, noting that he had now received the first two tranches of £250,000 each (gross of tax) and in relation to both of which he had paid 25% of the net amount to the wife pursuant to the 2019 order. Again, he confirmed that he was to receive a further £475,112 in March 2024 (gross of tax). Again, he confirmed the situation in relation to the possible future Carried Interest entitlements. He also set out a number of substantial debts that he had incurred and confirmed that he continued to be unemployed.17.As the First Appointment on this application approached, the wife once again instructed Alexiou Fisher Philipps and they arranged for her to see Counsel, Mr Simon Calhaem, in conference on 28th March 2022. For reasons which I will explain below, the court has been shown an attendance note of this conference. This records (amongst other things) the following:-“Simon saying here we are again. He has been through his Form E, the attachmentsgain? Simon advising that of itself is a multi-faceted answer – depends when the hearing is. Heavily dependent on what is happening with his job search by the point of a contested hearing. At the moment Simon cannot see that we would succeed by way of upwards variation or capitalization. Nothing Simon has seen at the momentimpossible for him to slide out of. There is an extension of that pessimistic view – family court unpredictable and a dangerous place for both litigants. One danger for you is costs – they are saber rattling - you were quite right to say can I have some financial disclosure please. Judges don’t like doing nothing – might say let’s have a clean break – small risk but a danger you should be aware of… Best for you to withdraw at or before the first appointment – Simon could sit here and tell you fairy stories – but not the right advice. Withdraw on the right basis – you don’t accept that he has presented a fully accurate picture of his finances but at the moment not intending to progress. Does not really matter if app dismissed or if you withdraw. Could adjourn generally with ability to restore – emperor’s clothes and does not really make a difference. In a way better to withdraw – if he gets a job in three weeks you can press the button again. Simon would have a lot more to say if he thought there was a point in pressing forward at this stage. Carried interest is where the real money is and he could make an enormous amount of money – at that stage right to have a capitalization order. The order that you’ve got is a global order – partly spousal and partly child maintenance. LMP say court won’t capitalize spousal element – Simon does not agree. What the court would do is work out what your spousal maintenance should be at the time. Simon thinks a court would capitalize subject to affordability. Simon doesn’t think there is enough there now – it’s the wrong time to be saying you should be getting a capitalised sum. Simon does not want you to sell yourself short and thinks that his position in the not too distant future will be so different that app in year or two will give you far more benefit… We withdraw, we ask for clarification – seems from disclosure he has failed to comply – insofar as he thinks it does not include self-employment work – clarify or reword and on that basis you would withdraw application…Simon saying the bigger part is to vary upwards maintenance up to proper level. If he gets a new job in next 6 weeks we can update Forms E. New job is the trigger.” 18.It is clear that the advice from Mr Calhaem, an experienced Counsel in the field of financial remedies, was that the wife should withdraw her application. Counsel’s view was that there may well be a propitious time in the future to pursue the variation/capitalisation application, but now was the wrong time. The wife accepted this advice and the application was duly withdrawn by the wife.19.The husband sought an inter partes costs order, but Recorder Chandler KC, in accepting the withdrawal of the application, determined on 25th April 2022 (after receiving submissions from Counsel on each side) that there should be no order as to costs. The husband had incurred £22,500 in costs in dealing with the 2022 application.20.It should be noted that nobody in the course of this exchange in 2022 suggested that the consent order approved by DJ Cronshaw in March 2021 should in any way be impeached. All the very experienced lawyers involved on both sides were satisfied that the order of DJ Cronshaw had been properly and fairly made and that there was, at that time, little prospect of an upwards variation or capitalisation on the maintenance obligations. Again the matter seemed to be settled for the time being, though of course things might change again as and when the husband came into possession of income or capital.