The client instructed Samuel Okoronkwo Jr. in relation to a non-molestation application brought by a former romantic partner with whom he had subsequently remained friends. The parties had known each other for many years and their romantic relationship had ended several years earlier.
The client had provided the other party with £3,500 to assist with financial obligations arising from the sale and purchase of properties. The parties subsequently disputed whether the payment had been intended as a loan or a gift. When the client sought repayment, the other party made an allegation concerning alleged sexual activity between the client and another individual, which the client strongly denied.
Following correspondence concerning repayment of the money and the allegation, the other party applied for a non-molestation order. The application contained a number of allegations concerning the client’s historical conduct, including alleged harassment, interference with personal property, abusive communications, inappropriate behaviour and unwanted contact. The client disputed the allegations and Counsel’s review identified a number of matters for which supporting evidence appeared to be absent or insufficient.
The principal issue was whether the evidence supported the application for a non-molestation order. Counsel considered the requirement for evidence of molestation under section 42 of the Family Law Act 1996 and the court’s obligation to consider the circumstances of the case, including the health, safety and wellbeing of the applicant.
Counsel also considered the disputed £3,500 payment and whether it had been provided as a gift or loan. The available WhatsApp correspondence appeared to support the client’s position that the money had expressly been offered as a gift. A potential defamation claim was also considered in relation to the allegation concerning the client’s alleged sexual activity with another individual.
Counsel advised that there were significant evidential issues with the non-molestation application, including a number of allegations which were disputed and appeared not to be supported by documentary or other independent evidence. Counsel identified inconsistencies within the applicant’s account, including the fact that the applicant had subsequently invited the client to assist with moving belongings despite alleging that she wished to distance herself from him.
Counsel advised the client to identify which allegations were factually correct, provide evidence capable of rebutting the allegations, identify any potential witnesses and prepare a detailed witness statement in response. The client was also advised regarding the procedure for the hearing, including the possibility of cross-examination and the potential outcomes available to the court.
In relation to the £3,500 payment, Counsel advised that the available WhatsApp evidence appeared to indicate that the payment had been intended as a gift rather than a loan. Counsel considered the principles relating to a valid gift, including intention, delivery and acceptance, and advised that further consideration should be given to the documentary evidence supporting the client’s position.
A potential defamation claim was also considered in relation to the allegation concerning the client’s alleged sexual activity. Counsel advised that the allegation could potentially cause serious harm to the client’s reputation and that evidence concerning the other individual’s age could be relevant to establishing the falsity of the allegation. The defamation matter was initially placed on hold pending determination of the non-molestation proceedings.
The non-molestation proceedings were subsequently withdrawn and the matter concluded following an order dated 8 March 2022. The client later indicated that he wished to consider pursuing the potential defamation claim. Counsel advised the client to consider his position before proceeding and, following further instructions, to amend and send the proposed correspondence concerning the alleged defamatory statement.
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