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17 MAR 2015

D v D [2015] EWCA Civ 181

D v D [2015] EWCA Civ 181
(Court of Appeal, Ryder, Longmore, Briggs LJJ, 4 February 2015)

Financial remedies – Strike out – Whether the husband’s appeal in financial remedy proceedings should have been struck out

The full judgment is available below.

The husband’s appeal from a decision striking out his appeal in financial remedy proceedings was allowed.

Neutral Citation Number: [2015] EWCA Civ 181


Royal Courts of Justice

Wednesday, 4 February 2015

B e f o r e:


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DAR Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court)

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Mr M Emanuel appeared on behalf of the Appellant
Mr I Robbins and Ms R Abulafia (instructed by Barnes) appeared on behalf of the First Respondent
Mr C Wagstaffe QC appeared on behalf of the Second and Third Respondents

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[1] This is an appeal against an order made by Her Honour Judge Hughes QC sitting at the Central Family Court in London on 6 June 2014 in financial remedy proceedings between the parties to a dissolved marriage who I shall refer to as the husband and the wife.

[2] The proceedings were heard by Deputy District Judge Parker in the Romford County Court in July 2013 and the order which precipitated the appeal was made on 13 December 2013. The husband appealed against the order and was given permission by the Deputy Judge to do so.

[3] That appeal, together with a cross application from the wife to strike out the appeal, was heard by Judge Hughes on 6 June 2014. On that day, Judge Hughes acceded to the request to strike out the appeal with the consequence that the merits of the husband's appeal have not been considered. The simple question in this appeal is whether the judge was wrong to have struck out the appeal.

[4] It is important to set out the context. The husband was a litigant in person who it is said had failed to provide adequate disclosure of his financial position. I do not know the extent to which that assertion is correct, but a costs order was made against him on a basis that can only relate to litigation conduct.

[5] It is recorded that immediately before the hearing began in June 2013, he provided a large number of documents that had not previously been disclosed. Deputy District Judge Parker was forced to comment more than once in her judgment that the essential evidence relating to the legal and beneficial interests in the former matrimonial home and transactions concerning the same, that being the primary asset of the marriage, were missing.

[6] The proceedings focused on the former matrimonial home, which is a property in Essex that the parties had lived in until their separation, and also a villa in Turkey. It transpired that at some time during the marriage, the former matrimonial home had been transferred from the joint names of the parties to an entity called Miller Group Limited (MGL) for tax reasons. MGL is a trust which is registered in Lichtenstein.

[7] The judge records that the trustees of the family trust, the D Trust, are the Newhaven Trust Company Limited (Newhaven), which is an entity registered in the British Virgin Islands, and the family trust holds the shares in MGL. To her apparent surprise, the wife discovered that she was neither a director nor a shareholder of MGL.

[8] Although the judge records that on 3 December 2012 Deputy District Judge Brooks made an order joining MGL and Newhaven to the financial remedy proceedings, it was by no means clear what the terms of that order were. At least at one stage in the subsequent appeals process, doubt was cast on whether those entities were joined or simply notified of the existence of the proceedings.

[9] We have now been provided at my direction a copy of what purports to be that order. It is unsealed, and having heard submissions from the parties this morning, it is clear that there is an issue as to whether it was ever served on either of the two entities who were thereby joined and if it was served, whether there has been any submission to the jurisdiction of the courts of England and Wales by them.

[10] There should never have been doubt about the terms of that order. It was a public document. When the husband asked about it, as he did, he should not have been told by the court office at Romford County Court, where the proceedings were issued, that there were no other parties to the proceedings. As I shall explain, he should have been permitted, in accordance with the rules, to inspect the court file with appropriate safeguards and conditions, to ascertain the true position in respect of this order and other documents in the proceedings.

[11] Returning then to the decision made by Deputy District Judge Parker. The Deputy Judge adjourned consideration of the parties income and income needs to a further hearing, which does not appear to have taken place, on the basis that he did not have the evidence to make a decision about those elements of the application. That in itself raises a serious question about whether the judge applied the statutory criteria in section 25 of the Matrimonial Causes Act 1973, given that consideration of those criteria is missing from the judgment and the judgment on its face concludes that the process of determination of the financial remedy application is incomplete.

[12] Accordingly that part of the process which the judge determined relates to some of the assets. He ordered that all of the available assets, that is the former matrimonial home and the villa in Turkey, be transferred to the wife. The problem underscoring that determination is that the section 25 analysis supporting such a determination appears to be missing. The facts found by the judge are arguably at least an insufficient basis for the orders made. The husband, MGL and Newhaven submit to this court that the order was beyond the jurisdiction of the court.

[13] What the judge did was to order MGL to transfer the former matrimonial home to the wife. That was not an order which the court was empowered to make by section 24 of the 1973 Act. No argument was successfully run to identify a constructive or resulting trust which the court had power to vary. There may have been a number of ways in which the court could have achieved that which it decided, but not the way that was chosen. Likewise, it may have been appropriate for the judge to give all of the assets to the wife and none to the husband in light of his non disclosure, but that position if taken by a court has to be reasoned and the adverse inferences drawn against the husband and the financial implications of the same should be set out. It is at least arguable that what was reasoned in this case was wholly inadequate for that purpose.

[14] Given that stark position, the husband wanted to appeal and was given permission to appeal on the day the judgment was orally handed down. The husband asked for and was given a direction for a transcript of the judgment at public expense and a short extension of time to file his notice of appeal, given the imminence of the Christmas break at the end of 2013. As can be ascertained from what I have said so far, the husband has a prima facie case on an appeal, albeit that his non disclosure may be regarded as a causative factor sufficient to lead to costs consequences.

[15] In that context, the question must then be asked: what happened to the appeal such that another year of delay has been added to the already unacceptable and dilatory conduct of these proceedings and why is this court now involved?

[16] The husband filed his notice of appeal in time. He said on that notice that as a litigant in person, he needed to have the order of the court and the transcript of judgment that had been directed in order to set out his grounds of appeal. I say immediately that a lawyer has an obligation to take a note of judgment and would be expected to set out the essence of the appeal in an appeal notice, even if that were subsequently to be perfected or enlarged upon when the approved judgment or order of the court is obtained. A litigant in person cannot expect to be given any significant leeway so as to breach the rules and practice directions of this court by not satisfying the same basic requirement.

[17] This husband did not simply take the position that he was given on 13 December 2013 as read. He applied on notice in the appeal notice for an extension of time to file grounds of appeal on receipt of the order and judgment of the court. That application was never listed or determined. He could not have made that application any more promptly than he did. Meanwhile, he embarked on an attempt to get the transcript of judgment and the perfected order. The wife's solicitors rightly comment that the husband had a draft order shortly after the 13 December 2013 hearing, but given that he objected to parts of that draft, which he says contained matters not decided by the judge or contained in the judgment, the terms of any effective order were clearly important to him.

[18] The transcript of judgment was simply not forthcoming. It was not even available to Judge Hughes when she considered the cross applications on the first appeal.

[19] This court has been taken to an e mail record between the judgment transcribers and the Romford County Court which indicates that an approved judgment was available to the Romford County Court, at least to an e mail account under their control, in March 2014 and that it was resent by the transcribers after Judge Hughes had made her determination in June 2014. The transcript, for whatever reason, was not discovered by court officers and was not made available to either Judge Hughes or to the parties. That was wholly unacceptable. The court had directed a copy of the transcript at public expense. The wife and the husband in this case had already had to wait from July to December 2013 for a decision. They then had to wait at least as long again for a transcript of the judgment.

[20] There is evidence which this court has seen in a statement filed by the husband immediately after the wife applied to strike out his appeal in March 2014 which demonstrates that the husband made a number of attempts to obtain the transcript to which he was entitled. He tried to obtain the transcript by two methods; (A) by telephone inquiry and attendance at the counter at the Romford County Court and (B) by asking for permission to inspect the court file because he believed that at least a draft of the judgment existed on that file. I shall return to this latter aspect in a moment.

[21] In the exhibits to the husband's statements of 17 March 2014, there are set out seven occasions between 13 December 2013 and 12 March 2014 when the husband says he telephoned the court or went to the court to request the transcript. In addition, the husband on at least five occasions requested permission to inspect the court file. He was very properly asked by the court why and permission was never given. Impliedly, permission was refused.

[22] One of the reasons why the husband wanted to inspect the file was made clear on 13 December 2013 when judgment was given and was reiterated by him in a letter dated 16 December 2013 which was received by Romford County Court on the same day. In that letter, the husband made it clear that he believed that the judgment had been delivered in draft to the wife's solicitors, which would have been entirely appropriate if it had also been delivered in draft to him, but it was not. Accordingly, he believed that inspection of the file would reveal that there had been a procedural irregularity but also that the judgment that he had requested was available. In fact, the wife's solicitors through Mr Robbins this morning confirm to this court that no draft judgment was ever circulated to them and the husband's belief in this regard is therefore erroneous. One can only deduce that no judge or court officer had the opportunity to read the court file or the husband's statement of 17 March 2014 which exhibited the letter and the chronology setting out his attempts to try and obtain a judgment.

[23] That is the context within which the wife's solicitors applied to strike out the appeal. That came on for a hearing, after a further unconscionable delay, on 6 June 2014. The delay this time was caused by the fact that Romford County Court did not initially realise that the application to strike out could not be heard either by Deputy Judge Parker or another judge at that court. The application and the appeal needed to be determined by a Circuit Judge with the appropriate authorisation to conduct financial remedy appeals. When this was finally realised, the matter was allocated for hearing before an authorised Circuit Judge at the Central Family Court.

[24] I note in parentheses that the application notice issued by the wife to strike out the application of the husband's appeal, which we have in a bundle at page A13 and A14, does not on its face contain the grounds of the application, although a statement was filed coincident with that application from a solicitor on the record explaining that the basis of the application was that the husband had not provided any grounds for his appeal.

[25] I make it clear that this court should not be construed to support the submission that a litigant in person does not have to comply with the the rules or practice directions relating to appeals. The husband should have set out his grounds at least in his statement of 17 March, if not long before. There is no excuse for that. That said, he made application promptly to ask the court for an extension of time in which to undertake that essential task. The court never determined that application and did not provide him with the transcript that he requested.

[26] This court now has a transcript of the hearing which took place on 6 June 2014. That regrettably shows the hearing to have been a peremptory affair. In fairness to the judge, it was listed with a wholly inadequate time estimate for a full appeal. I cannot say what papers the judge had before her as this court does not have them, but it is clear from the exchanges between the judge and the husband that the judge's attention was not drawn to the appeal notice which contained the husband's application or to the husband's witness statement which set out his attempts to obtain the transcript and which also explained why he wanted to inspect the court file.

[27] The judge came to an early conclusion that the husband had failed to plead his grounds and that he had had ample opportunity to obtain a transcript to do so. She did not accept his assertions relating to his attempts to obtain the transcript and did not understand the significance of the husband's attempts to inspect the file. She concluded that he had pursued an intention to inspect the file which was irrelevant and had not pursued his intention to obtain a transcript. As a determination of fact, that was plainly wrong. For the reasons I have set out, the judge should have taken into account what the husband had set out in his witness statement of 17 March 2014.

[28] In coming to her conclusion, the judge relied upon on a record which was not disclosed to the parties and which a court officer provided from the HMCTS computer system, which is known as FamilyMan. From that record, she deduced that the husband had not requested the transcript. There are two objections to that process. The first is that the parties were not allowed to see the record and comment upon it. If it was to be used against them, they should have been permitted that facility. The second is that in the absence of the court file itself, the relevant record is only a partial electronic record. It may or may not include detail of the kind the judge imagined it would and nothing short of evidence on the point could have been conclusive.

[29] It is common ground that the power to strike out an appeal should be used sparingly and only for compelling reasons so that the outcome of the use of the power is not unjust. For the purposes of this appeal, I need not enter into the erudite discussion about the finer aspects of the authorities on this point, one of which is presently before the Supreme Court.

[30] It is undeniable that Judge Hughes misconstrued the prima facie facts and accordingly, could not have struck out this appeal in accordance with the rules. Her primary reason for doing so was not that there had been non compliance with the rules and practice direction, but that the husband had not made any or any sufficient attempts to obtain the transcript. That was wrong.

[31] The background circumstances are such that there was no reason relating to the husband’s conduct which justified the step that was taken when one understands the application made by him at the outset and his repeated attempts to obtain that which was his entitlement and which was a duty in the court to provide. It would have been a very different matter if the court had listed the husband's application for an extension of time to file grounds and determined that application against him. The court did not do that and the wife did not ask for that.

[32] The decision to strike out the appeal was wrong in principle and on the facts and, in my judgment, must be set aside. For these reasons, I would allow this appeal.


[33] I agree.


[34] I agree also.

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