Charles Ayeh-Kumi v Lord Chancellor
| Jurisdiction | England & Wales |
| Judge | Mr Justice Linden |
| Judgment Date | 21 December 2022 |
| Neutral Citation | [2022] EWHC 3341 (KB) |
| Docket Number | Case No: QA-2021-000260 |
| Court | King's Bench Division |
[2022] EWHC 3341 (KB)
Mr Justice Linden
Case No: QA-2021-000260
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ON APPEAL FROM MASTER MCCLOUD
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Ayeh-Kumi in person
Daniel Cashman (instructed by Government Legal Department) for the Defendants
Hearing date: 13 December 2022
Approved Judgment
This judgment was handed down remotely at 2pm on 21 December 2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
On 12 February 2019 the Claimant issued these proceedings by way of a claim under CPR Part 7. At the heart of the Claim is a complaint that divorce proceedings in the family law courts, in which he was involved, breached his rights under the European Convention on Human Rights (“ECHR”) and were contrary to the rule of law. The proceedings led to him being divorced in 2018 after a contested hearing of his former wife's petition, and the process of determining whether a financial order should be made against him had begun when he issued the Claim. His case is that the relevant terms of the Matrimonial Causes Act 1973, the way in which the proceedings were conducted and the decisions made by the family law courts, failed to protect his human rights. This, he says, was the result of negligence and/or breach of statutory duty on the part of the Defendants in failing to put in place an ECHR compliant system of divorce law and practice. His Particulars of Claim seeks various declarations and an order for damages in the sum of £50,000 for financial loss arising from depression “and the financial implications and consequences of unilateral divorce”.
On 10 October 2019, the Defendants applied, pursuant to CPR r3.4(2)(a) and/or (b), for the whole of the Particulars of Claim to be struck out on the basis that it is an abuse of process and/or does not disclose reasonable grounds for bringing the Claim and/or for summary judgment pursuant to r 24.2(a)(i). Their argument was and is, in short, that the Claimant's complaints about the judicial decisions taken in the divorce proceedings should have been, and were to an extent, raised in the divorce proceedings. They say that the Claim is an impermissible collateral attack on those decisions; that these aspects of the Claim are out of time; and that damages are not recoverable in relation to them in any event. Insofar as the Claimant is contending that the provisions of the Matrimonial Cause Act 1973 which were applied to his case in the family law courts are/were incompatible with the ECHR, the Defendants argue that that issue could only be raised by way of a claim for judicial review, and such a claim would in any event be bound to fail. There is no viable claim against the Defendants in private law either.
This is, in substance, an appeal and a cross appeal from an order of Master McCloud on the Defendants' application, dated 3 February 2022. After a hearing on 29 January 2021, on 9 June 2021 she handed down a judgment striking out the whole of the Claim save for the aspects which were interpreted as being, in effect, an application for a declaration of incompatibility pursuant to section 4, Human Rights Act 1998. She also gave permission to both parties to appeal on the basis that there was “some other compelling reason for the appeal to be heard”. The Claimant submits, in his proposed appeal, that the Master was wrong to strike out any of his Claim. The Defendants contend that the Claimant's appeal is out of time and that in any event she should have struck out or dismissed the whole of the Claim.
The proceedings in the family law courts
Having left the matrimonial home in February 2016, on 19 May 2016 the Claimant's former wife presented a divorce petition in the Guildford Family Court. She relied on section 1(2)(b) Matrimonial Causes Act 1973 i.e. her case was that the marriage had “broken down irretrievably” and she contended that the Claimant had “behaved in such a way that [she] cannot reasonably be expected to live with” him.
On 22 September 2016, there was a directions hearing before DJ Nightingale which dealt with amendments to the pleadings and listed the matter for a further directions hearing. The subsequent hearing took place before HHJ Nathan on 25 January 2017 and a case management order was made. Neither of the orders which resulted from these hearings was appealed.
On 14 March 2017, DJ Beck dealt with an application by the Claimant to strike out the petition for divorce, which he refused, and other procedural matters in connection with the full hearing, which was due to take place on 21 March 2017. Again, his order was not appealed.
The divorce hearing then took place before DJ Beck on 21 March 2017. He found that the ground relied on by the Claimant's former wife had been established and that the marriage had broken down irretrievably. A decree nisi was therefore pronounced.
On 10 April 2017, the Claimant appealed against the order of DJ Beck and, on 9 November 2017, permission to appeal was refused by Moor J after a hearing. The Claimant's pleaded grounds of appeal argued that there was systemic bias in the family law courts and the legal profession against the concept of defended divorce; that HHJ Nathan and DJ Beck had shown actual and apparent bias against the contesting of petitions for divorce; that he had not had a fair hearing for various reasons including a lack of particularity to the petitioner's case, the admission of hearsay evidence and inadequate directions for the hearing; that DJ Beck had got some of the facts wrong and that he had applied the law incorrectly in coming to his decision. The Claimant's oral submissions also included a contention, which Moor J rejected as unarguable, that section 1(2)(b) of the Matrimonial Causes Act 1973 was in breach the ECHR and the requirement for legal certainty.
On 24 April 2017, the Claimant had also made a formal complaint against HHJ Nathan to the Judicial Conduct and Investigations Office. However, on 30 May 2017 this complaint was rejected.
On 17 January 2018, the decree nisi was made absolute and, on 25 March 2018, the Claimant's former wife lodged notice of her intention to proceed with an application for a financial order.
The details of the proceedings for a financial order are scant in the evidence before me. According to a list of key dates in the Particulars of Claim there was a financial settlement hearing on 3 September 2018 at the Staines Family Court.
On 7 November 2018, the Claimant made an application for the proceedings to be stayed on the grounds that he was intending to bring a claim in the High Court which sought declarations that they had been contrary to the ECHR and the rule of law, and that sections 1(2)(b) and 23 and 25 of the 1973 Act (which applied to the application for a financial order) were also contrary to the ECHR. On 3 December 2018, that application was dismissed by DJ Bell on the papers as being totally without merit. According to the Particulars of Claim there was then a financial settlement hearing on 13 December 2018 at the Staines Family Court.
On 24 December 2018, the Claimant applied to set aside the order of DJ Bell and for a stay of the proceedings for a financial order pending the outcome of his proposed claim in the High Court. That application was, in turn, dismissed as being totally without merit by DJ Bell on 18 February 2019, proceedings having been issued in the King's Bench Division on 12 February 2019, as I have said.
According to the list of key dates in the Particulars of Claim there was another financial settlement hearing on 3 May 2019 at the Staines Family Court.
The Claimant appealed DJ Bell's order and permission to appeal was refused on the papers by HHJ Raeside on 26 June 2019 as being totally without merit. Unsurprisingly, the view of DJ Bell and HHJ Raeside was that the interests of justice were not served by delaying the proceedings and that the family law courts should continue to apply the law until such time as they were required to do otherwise.
At the time of the hearing before Master McCloud, the proceedings in the family law courts in relation the application for a financial order were ongoing. In answer to questions from me, the Claimant confirmed that a financial order was made on 17 August 2021 by DDJ Melville Walker at a hearing which he said he did not attend for health related reasons. He said that he could not remember whether he put in written submissions for the hearing. In answer to further questions from the court he said he thought he had put in written submissions and I asked for these to be uploaded onto the CE File for this case. At the time of handing down this judgment they have not been.
Again in answer to questions from me, the Claimant added that he had appealed against the financial order and had received an acknowledgement from the court but had not heard anything further and had not taken any further steps to pursue the appeal. It appears from an order of HHJ Farquhar dated 29 September 2021, with which I was provided by Mr Cashman after the hearing, that the Claimant was in fact ordered to obtain a transcript of the judgment of DDJ Melville-Walker. What happened after this remains unclear.
The Claimant's pleaded case
The body of the Particulars of Claim appears to contain three broad categories of complaint in relation to the divorce proceedings in which the Claimant was involved. There are complaints about:
i) the way in which the family law courts dealt with the petition for divorce in the Claimant's particular case, where the complaint is essentially that the Defendants did...
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