De Sanctis v Bottari [2025] EWHC 270 (KB)

Mr Peter Knox KC and Mr Adam Riley (instructed by Ronald Fletcher Baker LLP) for the Applicant

MR JONATHAN GLASSON KC :

• Dr Francesca Bottari (“the Applicant“) applies for an interim prohibitory injunction to restrain her former husband Mr Guido de Sanctis (“the Respondent“) from enforcing the Order of Master Yoxall, dated 19 March 2024 (“the Order“), pending her application for a stay of execution of the Order. In the Order Master Yoxall ordered the Applicant to give up possession of her home, a studio flat at 607 Chelsea Cloisters, Sloane Avenue, London SW3 (“the Property“), on 15 November 2024. That Order followed a charging order on the Property made on 10 February 2022 consequent upon the judgment of the Rome Court of Appeal dated 29 January 2021 (“the Judgment”) and its registration as a Foreign Judgment in England and Wales on 16 November 2021.

• On the day on which the Applicant had been ordered to give up possession, she issued an application for a stay of the Order on the basis that the Judgment was under challenge by way of an application for the Court of Cassation (Italy’s highest court). The hearing of the application is due to be heard on 31 January 2025, with a decision likely to be reached by the end of April or May 2025. The application for a stay is predicated upon a report dated 12 November 2024 from an Italian lawyer, Sig. Vincenzo Pagano, who says that her application possesses a potential for success and that there are “compelling” reasons for it being accepted.

• The application for a stay has yet to be listed. On 19 December 2024 the Respondent said that he would apply for a warrant of possession on 6 January 2025 if the Applicant did not agree to give up possession by that date. Consequently, on 2 January 2025 the Applicant issued an application for an interim injunction. Although in the Respondent’s skeleton argument it was unclear whether the writ of possession had been applied for, Ms Wannagat clarified in her oral submissions that there had been such an application. It had however been unsuccessful as the wrong form had been completed.

The hearing before me

• For the purposes of the hearing, I was provided with a 379-page bundle as well as bundles of authorities from the Applicant and from the Respondent. Both parties submitted skeleton arguments in advance, and I was also provided at the hearing with the skeleton arguments that were before Master Yoxall as well as previously instructed counsel’s note of the hearing before Master Yoxall. At the hearing I heard detailed oral submissions.

• I am grateful to both counsel for their assistance.

The background

• The background to the application before me is set out in two witness statements from Mr Benjamin Frost, the Applicant’s solicitor.

• Mr Frost explains in his statement that the parties were married in July 1986 and had two children, born in 1993 and 1998. He goes on to say that, to meet the family’s needs, the Applicant left her job in 1993 to follow her husband abroad in his work as a diplomat from 1993 to 2006 and that the Applicant co-managed the household finances with him as well looking after the children.

• The parties separated in 2008 which was legally confirmed the following year. The divorce was finalised by the Italian courts in 2014 although Mr Frost says that there were “modifications” in 2016.

• The Italian litigation that led to Master Yoxall’s order began in February 2009 when the Respondent accused the Applicant, then his wife, of misappropriating funds of his which he had deposited into two accounts held in the parties’ joint names and into one account in the Applicant’s sole name. The Applicant defended those proceedings on the basis that she had not misappropriated the funds and that the funds spent from those accounts were to cover the family expenses.

• In a judgment handed down on 2 February 2017, the Tribunale di Roma civil dismissed the Respondents’ claims in respect of two of the three accounts on the basis that “In the case of spouses, the above presumption [of equal ownership with a right to dispose of 50% even if only one of them provided the money] applies with even more reason, especially in the case of legal separation, since each spouse is required to contribute to the family needs in relation to their own assets and professional and household work capacity. All sums deposited and used for family needs cannot be definitively claimed as exclusive property: instead, they may relate to the residual balance“. Sig Pagano explains in his report that this principle follows from Article 143 and 316 bis of the Italian Civil Code which recognises that “funds allocated for family needs are not to be treated as personal debts between spouses“. In respect of the other account, the Applicant was ordered to pay one half of the sums held in that account as she had been unable to prove that it had been used for the family.

Continue reading this Judgment here.