Ahmed v Mehmet
| Jurisdiction | England & Wales |
| Judge | Lord Justice McFarlane,Mrs Justice Proudman,Lord Justice Moore-Bick |
| Judgment Date | 17 March 2014 |
| Neutral Citation | [2014] EWCA Civ 277 |
| Docket Number | Case No: B6/2013/0652 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 March 2014 |
[2014] EWCA Civ 277
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PRINCIPAL REGISTRY OF THE FAMILY DIVISION
HHJ Horowitz QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moore-Bick
Lord Justice McFarlane
and
Mrs Justice Proudman
Case No: B6/2013/0652
Mr Jonathan Southgate QC (instructed by Irwin Mitchell Llp) for the Appellants
Ms Sarah Lucy Cooper (instructed by Rainer Hughes Solicitors) for the Respondent
Hearing date : 18 February 2014
Where a party to a marriage has taken a full part in contested financial provision proceedings, which have resulted in a comprehensive determination of all financial issues between the parties, what jurisdiction, if any, does the court in England and Wales have to prevent that person from seeking to pursue a fresh application for financial provision with respect to the same marriage in a foreign jurisdiction?
The question posed in the preceding paragraph is at the centre of this appeal which is brought by Aliye Ahmed, who was the petitioner wife in divorce proceedings against her former husband, Mehmet Mustafa, which were conducted in the Principal Registry of the Family Division here in London. On 13 th December 2011 His Honour Judge Horowitz QC, following a fully contested hearing, made a final order seeking to apportion ownership of various properties in England and in the country of origin of both parties to the marriage, which is the Turkish Republic of Northern Cyprus ("TRNC"). By express words within paragraph 4 of the judge's order, neither party was entitled to make any further application in relation to their marriage in this jurisdiction "or in any other jurisdiction".
Following conclusion of the divorce proceedings the wife permanently re-located from England, which had been the family home for much of the forty four years of marriage, back to her home country of TRNC and it was there, on 3 rd April 2012, that she issued a petition for divorce and a claim for financial provision which sought a greater share for herself than had been determined by HHJ Horowitz.
At around the same time in this jurisdiction a number of steps were undertaken. Firstly the wife had sought to appeal the December 2011 order, but her application for permission to appeal was refused by the Court of Appeal on 25 th April 2012. Secondly, in May 2012 a decree absolute was granted on the husband's application, the wife having failed to apply for that herself. Thirdly, under the judge's order of December 2011 the husband was required to transfer the ownership of a property, 21 Quested Court, to the wife. That property had been inherited by the husband on his mother's death. In accordance with the judge's order the husband made the required transfer to the wife on 18 th July 2012. Within five weeks of that transfer the wife herself had transferred the property on to her daughter by way of "gift". Whilst there are other elements in the financial distribution package determined by the judge, the only one of those elements that it is necessary to make reference to at this stage is a requirement for the husband to pay a modest lump sum to the wife which, after credit being given for costs awards in the husband's favour, was valued at £31,000. That lump sum remains unpaid.
On 18 th February 2013 HHJ Horowitz heard the husband's applications for a range of orders designed to maintain the integrity of the financial provision determined by the English court and prevent the wife from re-litigating these matters in TRNC; he also heard an application by the wife to enforce payment to her of the lump sum. Having heard argument, albeit that the wife was not present but was represented by the daughter to whom 21 Quested Court had been transferred, the judge effectively granted each of the orders that the husband had sought. These were:
i) An anti-suit injunction restraining the wife from commencing or carrying on any proceedings in any jurisdiction, but in particular in TRNC, either in connection with her marriage to the husband or in connection with any property owned by him;
ii) A stay on any attempt to enforce payment of the outstanding lump sum, but with provision that the wife could apply for release of the stay forthwith upon final withdrawal of all proceedings claiming matrimonial financial relief in TRNC;
iii) An order purporting to be made under Matrimonial Causes Act 1973, s 37(2)(c), setting aside the transfer of 21 Quested Court to the daughter;
iv) An injunction under MCA 1973, s 37(2)(a), prohibiting the wife from selling or otherwise mortgaging or disposing of 21 Quested Court until further order or upon final withdrawal of all proceedings claiming matrimonial financial relief in TRNC;
v) An order that the wife should pay the husband's costs assessed at £12,500 inclusive of VAT.
In addition the court, having deemed that the wife had applied to re-open and/or set aside the order of 13 th December 2011, refused those deemed applications.
Before this court the wife seeks to appeal each of the five orders made against her by HHJ Horowitz in February 2013. In the course of presenting her appeal Mr Jonathan Southgate QC, who did not appear below, has mounted a strong challenge which questions the judge's jurisdiction to make these orders. The challenge has been robustly defended by Miss Sarah Lucy Cooper, who had the advantage of having appeared before the judge at first instance at each of the important hearings.
It is not necessary to rehearse any further detail of the background at this stage. Such additional detail as may be relevant will be dealt with as it arises as I now turn to look at each of the five elements of the judge's order in turn.
Anti-suit injunction
The judge dealt with the anti-suit injunction at paragraphs 32–41 of his judgment. Having reviewed the legal context, to which I will turn in a moment, the judge focussed upon the question of whether the wife, by instituting divorce proceedings in TRNC, had acted in breach of an undertaking that she had previously given to the English court. The undertaking had been given on 24 th June 2011 and involved the wife giving a promise to the court in the following terms:
"1. Not to take any further steps in proceedings number…[earlier proceedings in TRNC] without leave of the English court.
2. Not to bring any further proceedings in North Cyprus in relation to the properties in North Cyprus owned in whole or in part by either of the parties save with the leave of the English court.
3. Not to deal with, dispose of, sell, charge, or diminish the equity of property owned in Northern Cyprus whether in whole or in part, whether owned solely or jointly by her, until further order or final order in these proceedings [identified by the case number of the English divorce proceedings]"
The transcript of the hearing before the judge shows that there was limited discussion as to the date upon which that undertaking will have expired. The reference to "final order in these proceedings" referred either to the making of the financial provision order in December 2011 or the granting of decree absolute in May 2012. If it were the latter, then the wife's institution of fresh divorce proceedings in TRNC on 3 rd April 2012 would be a breach of the undertaking.
In his judgment, at paragraph 39, the judge concludes that there had been a breach of the undertaking. Mr Southgate argues that the judge was in error on this point and that the undertaking expired with the making of the final order for financial relief on 13 th December 2011. On that point I am not with Mr Southgate. Whilst the undertaking was not in precise terms, the financial remedy order could not come into full effect until the granting of the decree absolute, and could not have been enforced until after decree absolute had been made.
It had been argued before the judge on behalf of the wife that she had given the undertaking as a result of duress. The judge was not impressed by that argument. He rejected it as a reason for the wife now seeking to re-litigate these matters in TRNC. The judge therefore expressed his conclusion at paragraph 41 in these terms:
"It seems to me that it would be manifestly unfair for parties who in good faith, both of them submit to the English jurisdiction, to allow these proceedings to grind on, insofar as I have any control over it, in another jurisdiction, whose acceptance of the case has never been spelt out clearly to me, to apply different principles, and it would be, it seems to me, a denial of justice not to grant the anti-suit order, and I do so."
Before this court there was no controversy as between counsel concerning the law relating to anti-suit injunctions.
In South Carolina Insurance Co. v Assurantie Maatschappij "De Zeven Provincien" NV [1987] AC 24 the House of Lords held that, although the power of the High Court to grant injunctions under [Senior Courts] Act 1981, s 37(1) was very wide, it was, in effect, limited to two situations:
i) Where one party to an action can show that the other party has either invaded, or threatened to invade, a legal or equitable right of the former for the enforcement of which the latter is amenable to the jurisdiction of the court;
ii) Where one party to an action has behaved, or threatens to behave, in a manner which is unconscionable to the prejudice of the other party.
Relying upon the Court of Appeal decision in the case of Masri v Consolidated Contractors International (UK) Limited and ors (Number 3) [2009]...
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