D v E (Undisclosed Libyan Properties)
| Jurisdiction | Northern Ireland |
| Judge | Master Bell |
| Judgment Date | 16 October 2013 |
| Neutral Citation | [2013] NIMaster 13 |
| Date | 16 October 2013 |
| Year | 2013 |
| Court | Family Division (Northern Ireland) |
1
Neutral Citation No. [2013] NIMaster 13 Ref:
2013NIMaster13
Judgment: approved by the Court for handing down Delivered:
16/10/2013
(subject to editorial corrections)
IN THE HIGH COURT OF JUSTICE OF NORTHERN IRELAND
------
FAMILY DIVISION
------
BETWEEN:
D
Petitioner;
and
E
Respondent.
(Undisclosed Libyan Properties)
------
Master Bell
Introduction
[1] This is a case where the court is asked to divide the assets of D
(hereafter referred to as “the wife” or, in connection with her children, as “the
mother”) and E (hereafter referred to as “the husband” or, in connection with
his children, as “the father”) after their divorce. It is clearly a case where the
appropriate division of the matrimonial property should be on a 50%-50%
basis and the parties are agreed on this. The issue before the court is
essentially “50% of what?” The wife alleges that the husband has not
disclosed the existence of three properties in Libya. The husband denies that
these properties belong to him.
[2] The husband and the wife were married in Libya on 28 January 1977.
They came to Northern Ireland in 1978 and subsequently separated on 1
November 2006. An Islamic Divorce was pronounced on 11 November 2007
in the Surman Court, Libya and it was recognised in this jurisdiction by an
order of Stephens J on 10 February 2010 and a Decree Nisi was granted by
2
him on the same date. There are four surviving children of the marriage:
three daughters and a son, each of whom is over eighteen.
[3] The wife seeks Ancillary Relief pursuant to a summons dated 6
January 2012. She was initially represented by solicitors and counsel but was
unable to afford to continue with the cost of such representation and so
became a personal litigant, representing herself at the hearing of this
application. I granted her leave to be assisted by a McKenzie Friend and two
of the parties’ children adopted this role on various days during the hearing.
The husband was represented by Miss Kerr.
[4] At the ten day hearing thirteen witnesses gave oral evidence. Seven of
the witnesses were in Libya and gave their evidence in Arabic through an
interpreter and over a Skype link. The witnesses gave their evidence out of
order due to issues of availability and the time difference between the
jurisdictions. One of the witnesses was in Germany and gave her evidence in
English over a Skype link. Given that the petitioner is a personal litigant, I
will explain at the outset that this judgment will contain only a summary of
the matters of law and evidence which I heard. No written judgment can
address every detail of an extensive hearing. It will therefore deal only with
those matters which I found significant in reaching the decisions which I have
made. All the evidence which I heard was, however, carefully considered. I
have also carefully considered the closing submissions of both parties which I
allowed to be made in writing rather than orally. (The husband also
submitted an addendum to his closing submissions.) The wife, being a
personal litigant, misunderstood the function of written submissions and, in
the extensive written submissions which she filed, she made assertions of fact
which she had not made during her oral evidence. I have completely
disregarded these. Closing submissions, whether written or oral, cannot be
used as a means of offering evidence which a party has, for whatever reason,
neglected to give during their oral evidence. To allow such evidence through
the back door via written submissions which cannot be challenged and tested
through cross-examination would be completely unfair and must not be
permitted. Although the wife was a personal litigant and therefore suffered
the disadvantages that most personal litigants suffer, courts can only decide
cases on the admissible evidence which the parties call. Finally, I have also
considered written submissions made by the parties following their receipt of
a draft judgment.
[5] Both parties requested in their oral submissions that I anonymise this
judgment. Indeed the husband in his written closing submission stated that
he did not want the details of this judgment published at all. The husband has
referred me to the cases of A v A [2012] EWHC B17 (Fam) and W v M [2012]
EWHC 1679 (Fam). In A v A accredited media representatives attended a
hearing and, having heard the evidence, were very keen to be able to report
what they had learned. The respondent in that case argued that his business
3
was sensitive and that publicity would be damaging. In W v M a claimant
argued that, over the course of a long cohabitative relationship, she had
become a beneficial tenant in common of two properties. The respondent
sought anonymity but this was opposed by the claimant. Both authorities are
of limited assistance except to identify well known applicable principles.
[6] The starting point of our legal system is the principle of open justice. In
W v M Mostyn J refers to what was said by Woodhouse P, in Broadcasting
Corporation of New Zealand v Attorney General [1982] 1 NZLR 120, 122:
"…the principle of public access to the Courts is an
essential element in our system. Nor are the reasons in
the slightest degree difficult to find. The Judges speak
and act on behalf of the community. They necessarily
exercise great power in order to discharge heavy
responsibilities. The fact that they do it under the eyes
of their fellow citizens means that they must provide
daily and public assurance that so far as they can
manage it what they do is done efficiently if possible,
with human understanding it may be hoped, but
certainly by a fair and balanced application of the law
to the facts as they really appear to be. Nor is it simply
a matter of providing just answers for individual cases,
important though that always will be. It is a matter as
well of maintaining a system of justice which requires
that the judiciary will be seen day by day attempting to
grapple in the same even fashion with the whole
generality of cases. To the extent that public confidence
is then given in return so may the process may be
regarded as fulfilling its purposes."
[7] An important aspect of public justice is that it allows the legal
profession to see how the law is being applied to particular facts and
circumstances. This allows them to anticipate how the law will be applied
in other cases and advise clients. In Lord Bingham’s notable 2006 lecture
The Rule of Law his first sub-rule was that “the law must be accessible and
so far as possible intelligible, clear and predictable”. One might anticipate
therefore that, without the publication of court judgments, the law cannot
be predictable; the legal profession cannot advise clients as to the likely
outcome of a case; fewer cases may therefore settle; more cases may be
contested; and greater costs and delays can be expected in the
administration of justice.
[8] Article 8 of the Convention which provides a right to a private
life is a qualified right to be balanced against other rights. Often it may
need to be balanced against the Article 10 right to freedom of expression.
In the context of judgments by a court it will require to be balanced against
To continue reading
Request your trial