Ben Hashem v Al Shayif

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE THORPE,LORD JUSTICE WALL
Judgment Date22 July 2009
Neutral Citation[2009] EWCA Civ 984,[2006] EWCA Civ 83
Date22 July 2009
Docket NumberCase No: B4/2009/0954 & 0954(A),B4/2005/2487A

[2006] EWCA Civ 83

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE PRINCIPLE REGISTRY OF THE FAMILY DIVISION

(MR JUSTICE BENNETT)

Royal Courts of Justice

Strand

London, WC2

Before:

Lord Justice Thorpe

Lord Justice Wall

Mr Justice Coleridge

B4/2005/2487A

B4/2005/2487

Hashem
Claimant/Appellant
and
Shayif
Defendant/Respondent

MR CHARLES HOWARD QC and MR PHILLIP MARSHALL (instructed by Hughes, Fowler, Carruthers Solicitors, London WC2A 1DT) appeared on behalf of the Appellant.

MR DEEPAK NAGPAL (instructed by Salfiti & Co Solicitors, London NW1 9DR) appeared on behalf of the Respondent.

LORD JUSTICE THORPE
1

The parties to this application are both of Yemeni origin, although they have each chosen to lead expatriate lives in different jurisdictions. On 3 October 1998 the wife and husband went through a ceremony of marriage, here in London, in the Fulham register office. Unfortunately for both the marriage did not endure and, ultimately, a petition for dissolution was filed by the wife on 20 December 2004 under Section 1(2) (b) of the Matrimonial Causes Act 1973. The husband took issue, asserting that the marriage of 1998, although lawful according to Koranic custom, was unlawful in this jurisdiction since, at the material date, he was married to a previous wife—his third—and that that marriage had not been dissolved. He accepted that his marriage to wives one and two had been dissolved, but asserted that his marriage to wife number three had not.

2

The issue was the subject of a directions hearing before one of the district judges in the Principal Registry and she gave directions for trial to commence on 12 October 2005. In the preparation for trial an issue as to the relative involvement of the parties in the deception of the registrar at Fulham was raised initially by the husband and he filed evidence in relation to his assertions, not only from himself but also from other witnesses. That development drew evidence in response for the wife and, accordingly, the bare issue of was this a marriage to be dissolved under section 1(2) (b) or was it to be the subject of a nullity decree, had been considerably enlarged.

3

There was a good deal of debate before the judge at the outset, but that debate was preceded by the customary exchange of statements as to the issues in the case and in the husband's statement of issues in the final paragraph, paragraph 56, he put strongly on the line the truth of the evidence that the wife was producing. The statement of issues filed by the wife, I think on the eve of the trial, equally dealt with issues that were broader than the bare question as to the nature of the decree. At the opening of the case, both parties being represented by leading and junior counsel, there was an endeavour by Mr Camden Pratt QC—who then represented the husband—to suggest to the judge that he had the simple task of determining only the form of the decree. Bennett J, a judge of great experience and one with a particular facility for getting to the heart of issues between warring parties, made the sensible point that the issue as to complicity in the deceit of the registrar was one that inevitably had to be decided in order to determine the extent of the wife's ancillary relief entitlement. He also drew attention to the fact that there was a very considerable difference in their respective abilities to fund litigation, and he pointed out that the issues were all prepared and before him, and would accordingly sensibly be dispatched. Mr Camden Pratt's endeavours to suggest otherwise were the subject of debate between pages 26 and 32 of the transcript and at the culmination of the exchange Mr Camden Pratt QC gracefully and realistically conceded the point when he said at line 37:

"Well, my lord, I am happy with that. I would urge your Lordship, if that happens, to be the judge of the finance too, because I would not wish to divorce the finder of fact on a matter that goes to the finance."

So Mr Camden Pratt QC was making the sensible submission that if the judge resolved this dispute at that fixture, it was important that he should also be the judge in the ancillary relief. Bennett J responded:

"I am not going to commit myself on that one."

and Mr Camden Pratt QC accepted, saying:

"But there we are. I do not think I need say any more. I do not object to this amendment."

4

The judge heard a lot of conflicting evidence and ultimately delivered a careful judgment which culminates in findings which appear in paragraph 74 of his judgment. It is to the third and fourth findings that the present application is directed. The first two are not only accepted but much welcomed by the husband. The first that he had been married to wife three and the second that he was still married to wife three on 3 October 1998. The (iii) finding, which has rankled with the husband, is that:

"The wife knew that the husband was married to Siham but that at first the husband pretended otherwise to the wife."

And (iv) ,

'The driving force behind the deception of the registrar of the Fulham Register Office was the husband and not the wife. In terms of culpability, far more blame attaches to the husband than the wife. His attempt to heap the blame on her is utterly unworthy of him and I am satisfied was only done to enable him to obtain a significant, perhaps decisive, advantage in ancillary relief proceedings."

5

Those two findings provoked a flurry of applications to the judge: permission to appeal, extension of time to come to this court, stay of ancillary orders made to get each to file a form E. There seems to have been a certain amount of delay in putting the application for permission before this court. Accordingly the timetable laid down by Bennett J on 17 October 2005 has slipped and when the papers were put before me on 20 January 2006, I ordered an oral hearing on notice simply to ensure that this outstanding application was determined without further delay and to ensure that it did not continue to act as an unofficial stay of the continuing proceedings in the division.

6

Accordingly, this morning we heard Charles Howard QC, who has come into the case replacing Camden Pratt QC, although Mr Marshall remains constant as the junior. Mr Nagpal, who has been junior throughout, has appeared this morning but we have not called on him. He has already made his position plain, not only by a skeleton that he has filed this morning, but by the adoption of a note settled by his leader Miss Parker QC on 9 December 2005.

7

The case for the applicant is most fully and skilfully developed in a skeleton argument settled by Mr Howard and Mr Marshall on 2 December 2005. It runs to no less than 36 pages and really says in writing all that could be said in support of the application. However, we are grateful to Mr Howard for his summary of what are his principle contentions. He has sought to revive the contention that the judge overstepped the mark and tackled issues that were irrelevant and not fully prepared. It seems to me that the judge exercised a very broad discretion. Given the reality that the only true issue between this man and this woman is how much money should he pay to her, the judge, had he ruled against Mr Camden Pratt QC, could hardly be open to criticism in this court. But he did not have to decide against Mr Camden Pratt QC since, as I have demonstrated, Mr Camden Pratt QC conceded the point.

8

Next, there is the question of whether the husband is entitled to a re-run, or a more extensive run, on the basis of a file of additional evidence which he would like to put before the court. Miss Parker, in her response, inevitably takes the point that the application sinks on the rocks of Lamb and Marshall, and principles that have always been applied in this court to applications that seek to have a second bite at the cherry. Although those principles are not necessarily applied so stringently in family litigation as in other litigation, I do not see why they should not be equally stringently applied when the only issue is cash and there is no issue concerning the welfare of children. Miss Parker makes the point that the evidence upon which the judge relied was prepared between 22 March 2005 and 30 August 2005, and indeed that one of the statements which is included in the application to adduce fresh evidence is a statement which the husband's counsel sought to put before the court on 14 October 2005, an application which the judge then refused.

9

Despite Mr Howard's endeavour to persuade us that this was not evidence that could have been obtained with reasonable diligence for use at the trial, I am not so persuaded. It seems to me that there was perfectly sufficient indication as to the general nature of the dispute as to the deception of the registrar. There is no doubt at all that each put the credit of the other straight on the line, and I would unhesitatingly hold that the endeavour to either start the trial again before another judge or to lay the further evidence before the judge in the divorce proceedings is unprincipled. It may be that in the course or in the preparation for the ancillary relief trial, which clearly should be before Bennett J, Mr Howard will try again. That is a separate question which, if it arises, will be answered by Bennett J. As far as this court is concerned, I have no hesitation in concluding that the application should be dismissed....

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