David Anthony Mann v Shelley Mann

JurisdictionEngland & Wales
JudgeLady Justice Macur DBE,Lord Justice Burnett,Lord Justice Patten
Judgment Date19 December 2014
Neutral Citation[2014] EWCA Civ 1674
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: B6/2014/1719
Date19 December 2014

[2014] EWCA Civ 1674

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM HIGH COURT (FAMILY Division)

MR JUSTICE MOSTYN

FD98D03022

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Patten

Lady Justice Macur DBE

and

Lord Justice Burnett

Case No: B6/2014/1719

Between:
David Anthony Mann
Appellant
and
Shelley Mann
Respondent

Mr S Trowell and Mr M Brunsdon Tully (instructed by Sears Tooth Solicitors) for the Appellant

Mr R Howling QC (instructed by Direct Access) for the Respondent

Hearing dates: 2 December 2014

Lady Justice Macur DBE

INTRODUCTION:

1

These appeals are brought against two orders directing a former husband (H) to pay monies to a former wife (W) made by Mostyn J on 12 May 2014 and 12 June 2014 respectively. They raise both jurisdictional and procedural issues as to the making of such orders following the discharge of a previous order for periodical payments by capitalisation of the same in circumstances when that consequent order for a lump sum has not been satisfied and enforcement proceedings are pending.

2

H is represented by Mr Stephen Trowell and Mr Matthew Brunsdon Tully, neither of whom appeared in the court below but who have adopted the skeleton argument in all significant respects of Mr Justin Warshaw who did. W appeared as a litigant in person in the court below but has been represented in this court by Mr Rex Howling QC. She opposes the appeal in relation to the order on 12 May, but is "neutral" as regards that of 12 June. In the event that this appeal succeeds, W seeks permission to appeal the order of Charles J out of time to provide that the order for periodical payments should only be discharged upon payment of the lump sum.

BACKGROUND

3

The relevant background facts are as follows. The parties separated in 1997. An order sealed on 20 April 1999, expressed to be by consent and subject to undertakings as to discharge of mortgage and other payments and orders for child maintenance, provided that H was to transfer the former matrimonial home to W, pay to her a lump sum of £50,000 in two instalments (within 14 days and 12 months of the order) and pay periodical payments to her at the rate of £24,000 per annum during their joint lives, until W's remarriage or further order. On 13 November 2002 H applied to reduce the quantum of periodical payments saying he could no longer afford them. On 29 May 2003 W applied for secured provision and/or capitalisation of her periodical payments alleging lack of full and frank disclosure and manipulative procedural tactics by H, taking advantage of her vulnerable financial position. Subsequently, on 9 March 2005, she applied for an upward variation of her periodical payments prior to any order for secured provision or capitalisation that might be made.

4

Charles J heard the case over several days. He found for W. H's application for downward variation was dismissed. W's periodical payments were capitalised in the sum of £1,300,000 and H ordered to pay arrears in the sum of £74,428 odd by 8 June 2005. H appealed. Thereafter the parties mediated and an order was made by the Court of Appeal on 12 January 2006 granting permission to H to withdraw his notice of appeal on agreed terms. The terms required payment of specified lump sums over the course of four years. In the event that £700,000 had not been paid by the end of 2006, the order for the full capitalised sum was to become "immediately enforceable". In the meantime, H undertook to "continue paying the rent of [W's] present accommodation…until the completion of the payment of £700,000." H reneged upon the agreement. The order of Charles J revived.

5

W issued a statutory demand for payment of approximately £2m (including interest) on 21 April 2010. H applied to set the demand aside. Hearings followed and once again H discontinued the appeal he had launched and W's claim was compromised, both parties, who were legally represented at the time, signing a written agreement on 2 November 2011. In short, H and W agreed to enter into a binding mediation as to the outstanding balance due and terms as to the payment of instalments. In the meantime, H was to pay to W £4,000 per month until an agreement was mediated, a lump sum of £20,000, and the deposit and rent on a property specified, with a personal guarantee of the rent due.

6

Mediation failed. W moved house. H paid £4,000 per month and the lump sum but ceased to pay rent in October 2013. On 16 December 2013, W issued an application pursuant to Family Procedure Rules (FPR) 2010, r 33.3(2) (b) seeking "such method of enforcement as the court may consider appropriate" (general enforcement) in relation to the sum of £1,942,660. H disputes the figure.

7

Mostyn J was seized of the substantive application on 26 February 2014. Significantly he found that the clauses in the November 2011 agreement containing financial arrangements qualified those as a maintenance agreement, albeit that the clauses relating to mediation could not be so classified. He found that H had no ongoing obligation in relation to W's rent and had otherwise complied with the 2011 agreement's financial terms. He adjourned W's application for eight weeks to enable the parties to mediate, and ordered further disclosure against H. W did not engage in mediation. The matter was restored before Mostyn J on 12 May 2014 on which occasion he ordered, "without prejudice" to the sums owed by H to W under the terms of the May 2005 order, that H "shall pay to [W] interim periodical payments at the rate of £120,000 per annum…[H to] be given credit for the payments of £4000 since 1 November 2013" and payment of arrears of maintenance in the sum of £42,000 by 19 May 2014. H failed to pay the arrears. W contacted Mostyn J to alert him to this fact. H applied to vary the order. Mostyn J directed the parties to appear before him on 22 May 2014 and on that day directed H "on 4 June 2014…to attend personally before [him] (a) to be examined as to his means; and (b) to show cause why [H] should not be committed to prison pursuant to section 5 of the Debtors Act 1869 for having refused or neglected to pay the sums due …where he has or has had the means to do so…" (This hearing was later adjourned to 12 June 2014).

8

In the meantime, H had applied for permission to appeal the order made on 12 May 2014 and sought a stay of the enforcement proceedings by way of committal. A stay was granted by Gloster LJ and subsequently, permission to appeal was given by McFarlane LJ. Mostyn J interpreted the stay to preclude him from proceeding to commit H immediately to prison but not from conducting the necessary judicial investigation itself. Further intervention of this court was necessary to prevent Mostyn J proceeding with his intended course; Longmore LJ making clear that the stay "cannot be qualified or limited by reference to [the single Lady Justice's] reasons" for the order.

9

On 12 June, 2014, Mostyn J "re-characterised" the periodical payments order he had made on 12 May as "a scheduled court directed part payment of the outstanding lump sum" and made an order that H only be allowed to make payment to his solicitors if he paid a corresponding amount on each occasion to W in partial discharge of his debt to her. Subsequently, at a hearing on 19 September 2014, Mostyn J adjourned examination of the H's means and committal proceedings to 16 March 2015 with a time estimate of 2 days.

AMBIT OF APPEAL

10

With all due respect to the 14 grounds of appeal drafted on H's behalf in relation to the order made on 12 May, as amended in terminology by Mostyn J's ruling on 12 June, and the five grounds of appeal in relation to the order he made on 12 June 2014, the real issue is whether the judge had jurisdiction to order H to make payments to W, other than after the determination of W's enforcement proceedings in accordance with FPR 2010 R 33.16 ( 1) or (2). If H...

To continue reading

Request your trial
1 cases
  • Isaac Sarayiah v (1) David Williams
    • United Kingdom
    • Queen's Bench Division
    • 23 February 2018
    ...That was based on a misunderstanding of the judgment of Bodey J in Mubarak v Mubarik (No 2) [2007] 1 WLR 271, 286, at [69]–[71]: see also Mann v Mann [2014] EWCA Civ 1674. 31 The most important category, and the main reason for this application, concerns the Applicant's wish to identify the......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT