The High Court granted an interim injunction preventing the enforcement of a property possession order pending a stay application.
Background:
Dr. Francesca Bottari and Mr. Guido de Sanctis were married in July 1986 and have two children. Dr. Bottari left her job in 1993 to follow her husband in his work abroad from 1993 to 2006 and they co-managed the household finances. The parties separated in 2008 with their divorce finalised by the Italian courts in 2014.
In 2009 the husband claimed that the wife misappropriated his funds. She denied the allegation by noting that those funds had served to cover family expenses. In 2017, an Italian Court dismissed Mr. de Sanctis’ claims. Both parties appealed to the Rome Court of Appeal. In January 2021, Dr. Bottari’s appeal was dismissed but Mr. de Sanctis’s claim was allowed on the fact that the payment only came from his account. The judgement was registered as a Foreign Judgement as the proceedings commenced before the end of the Brexit transition period.
On 10 December 2021, the husband applied for a charging order over a studio flat in London, a leasehold registered solely in the wife's name. An interim charging order was made on 23 December 2021 which was made final on 10 February 2022.
Dr. Bottari appealed to the Italian Court of Cassation and so the order of sale of the property was put on hold. On 10 May 2023, the Court of Cassation dismissed the applicant's appeal, a decision which she challenged in July 2023.
Decision:
The High Court granted the interim injunction. The Court carried out a careful analysis and balancing exercise before arriving at this conclusion. The test for determining whether to grant an injunction has been established by American Cyanamid v Ethicon [1975] and requires a court to consider whether there is a serious question to be tried, whether damages will supply an adequate remedy and, finally, where the balance of convenience lies.
The Judge was convinced that there was a serious issue to be tried based on the evidence he received. Most importantly, damages would not be an appropriate remedy if Dr. Bottari lost her flat. As the Judge noted “The nature and degree of harm and inconvenience to the applicant if the injunction was not granted could not be adequately recompensed by way of damages having regard to the fact that she is at risk of having to vacate her home and her place of work. By comparison, the loss to the respondent could be compensated by way of damages.” Dr. Bottari could not however give an unlimited undertaking in damages due to her disability and her £20,000 per year earnings.
The Court was not convinced by the respondent’s argument that he had been trying for over three years to enforce the order and that the applicant did not pay any of the costs orders. The fact that the property leasehold is less than 100 years and thus negatively impacts the value did not sway the Judge.
Implications:
This decision demonstrates the careful approach of English courts to avoid putting a person in a difficult position. In this case, the order to sell the property would have created major harm and inconvenience to the wife while the proceedings were still ongoing in Italy.
It was interesting that the Judge was unconvinced by the decrease in value of the property and the length of proceedings in deciding where the balance of convenience lay.