AB v XY (appeal: procedural irregularity: undue acceleration)
| Jurisdiction | England & Wales |
| Judge | WILLIAMS J |
| Judgment Date | 07 June 2019 |
| Neutral Citation | [2019] EWHC 1468 (Fam) |
| Court | Family Division |
Practice and procedure – Procedural irregularities – Final decisions made at hearing to decide preliminary point – Failure to hear evidence – Failure to make Lucas direction – Whether procedural flaws tainted findings as well as orders made.
The wife issued a divorce petition in September 2018. On 29 October 2018 the judge conducted a hearing on the wife’s Family Law Act 1996 application for an occupation order in respect of a property. The wife was represented; the husband was in person. During the hearing, the husband asserted that he was not married to the wife and that a marriage certificate produced at the hearing was a forgery. The judge decided that the question of the existence of a marriage ought to be listed for determination of a preliminary issue on 1 November 2018, with a time estimate of one-and-a-half hours. A direction was given, providing for the simultaneous filing of any evidence, including affidavits from any third parties relevant to the question of whether or not the parties were married. A final hearing of the occupation and non-molestation orders applications was listed for 13 December, with a time estimate of one day.
On 1 November, the judge heard evidence. The wife’s case was essentially based on documents produced between 12 noon and 1pm on the day of the hearing, and she gave some oral evidence. The husband’s evidence had been filed prior to the wife’s evidence. The marriage certificate contained dates for ‘historical events’ in its body which post-dated the date of the certificate and did not contain certain information that might have been expected. The wife accepted that the dowry which had been stated to have been received had not in fact been received. The husband’s passport did not show a stamp which would have placed him in Jordan at the material time. A document from the Jordanian Embassy confirmed that the wife was married to the husband as shown on their marriage contract but it was not clear that the Embassy had certified that the marriage certificate was an authentic document.
The judge made findings that the husband had not told the truth on a number of occasions, in particular about the wife having been his lodger, and that he was a serial liar. He made findings that: the couple had married in Jordan on 9 June 2010 and thereafter lived as husband and wife; the husband had a beneficial interest in the family home, despite legal title to the property being held by the husband’s children from a previous relationship; the husband was entitled to occupy the family home by virtue of this beneficial interest; and the family home was the couple’s home. In addition, the judge found that the husband had, as alleged by the wife, been abusive to the wife, had her out of the house without notice, and had sought to defeat any claim she might have to the house by transferring the property into his children’s names.
The husband sought permission to appeal out of time, arguing a number of procedural irregularities. By the time the appeal eventually came on, seven months had passed since the relevant order had been made. During this time the wife had been in occupation of the property and the husband had been moving between friends’ homes, with some time in hospital. The grounds of appeal included assertions that: the judge had failed to hear any evidence on the allegations relied on by the wife in support of her applications for non-molestation order and occupation order; the finding in relation to the husband’s beneficial interest should not have been made, especially without notice to the children as the legal owners; the judge had wrongly concluded that because the husband had lied to the court about the wife being his lodger, it followed that he was lying about everything else; and the judge had failed to deal in his judgment with the matters set out in s 33(6) of the Family Law Act 1996 and had failed to deal with the balance of harm test set out in s 33(7).
By the hearing date, the wife accepted that on all these grounds, the appeal should be allowed in relation to the occupation and non-molestation orders. A key question was whether the acknowledged flaws in the judgment also undermined the reliability of the findings made in respect of the marriage.
Held – (1) It would very often be the case that no written judgment was handed down and that a transcript would be required; with litigants in person there would very often be no note of the judgment and obtaining a transcript (particularly at public expense) would lead to lengthy delay. However the 21-day time limit still applied and it was imperative that those instructed to advise on appeals pulled out all the stops to obtain the material that they needed to make a decision. In particular, in a case such as this, requesting a note of the judgment from counsel who was present seemed to be mandatory. It was part and parcel of counsel’s duty in attending a trial to take a note of the judgment (see [13], below).
(2) Given that neither the husband nor the wife had expected determination of any issues other than those relating to the existence of the marriage, it was not surprising that the allegations of abuse made by the wife against the husband had not been the subject of any cross-examination or that there had been no exploration of the circumstances in which the wife had left the house, still less any exploration of the circumstances in which the property had been transferred into the names of the husband’s children some three years earlier and whether the husband retained a beneficial interest in the property. It was undoubtedly the case that the findings made by the judge had gone far beyond those listed for determination and had been made without any evidence preparation, exploration of the evidence or detailed submissions (see [26], below).
(3) The purpose of listing the question as to the validity of the marriage as a preliminary issue within the occupation order proceedings had apparently been to use the discrete issue of ‘marriage’ as a vehicle for reaching conclusions as to the credibility of the husband and wife, which conclusions could then be exported into the Family Law Act application. The judge’s findings as to credibility on this issue had plainly been intended to be determinative of the credit of the parties, such that they would be disbelieved on anything else unless there was corroboration; as conceded by the wife, this approach was wrong and contrary to R v Lucas. This approach had been mirrored in the reasons given for determining the marriage issue. Credibility could not be dealt with in such a binary fashion (see [26], [28], below).
(4) Judicial decision-making could not necessarily be compartmentalised in the way suggested by the wife. Several decisions reached by a judge without the necessary procedural or evidential foundations suggested, as a matter of substance, that the decision-making process generally had been flawed. The flaws in this hearing impacted upon the marriage findings as well as the other findings. As a matter of form it was hard to imagine that an objective observer would have considered that justice had been seen to be done to the husband in these circumstances (see [27], below).
(5) The judge had, in effect, been determining an issue of status with very important consequences. If an issue about status had arisen in the context of the divorce, an entirely different procedural course would inevitably have been followed. The wife would have been given an opportunity to provide a full statement setting out the circumstances in which the couple had come to be married, including her narrative account of the lead up to, the conduct of and the immediate aftermath of the ceremony. Enquiries would have been made in the relevant court to check the register. The husband would have had the opportunity to consider that evidence and to respond in detail to it, giving his own account of his whereabouts at the time, and to obtain advice from Jordanian lawyers who might have inspected the register. In the light of that evidence, consideration might have been required as to the necessity for the instruction of a single joint expert on Jordanian law. Had the husband continued to maintain that the signature on the certificate was not his, consideration would have been given to the need for a handwriting expert (see [28], [29], below).
(6) Whilst there was undoubtedly merit in robust case management and the rapid disposal of issues of fact, even the simplest and relatively insignificant issues required some space for preparation. The purpose of ‘time’ was not purely to prepare a statement but rather to reflect and to consider both what evidence might be required and, more broadly, what approach should be taken to the litigation. On important issues such as status which had far-reaching consequences, the need for careful preparation, the opportunity for reflection, collation of material, and the seeking of advice assumed a premium. The fact that the husband had not raised any objection or requested any additional time was relatively unimportant in the context of the significance of the issue before the court. It had been clear from the evidence that there were some unusual features in this case which might need to be investigated and a raft of further enquiries that would have been undertaken had more time been available. The timetabling of the hearing on 1 November and the opportunity for the consideration and deployment of evidence had been insufficient given the magnitude of the issue in play. This fell into the category of ‘undue acceleration’ which was a serious procedural irregularity making the decision unjust. It might be that there were cases where issues of status could fairly be determined in a three-hour hearing. This was not one of them, particularly where the preparation had been so compressed. Taken in its entirety, the manner in which the hearing had taken place had been inappropriate and...
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