Goyal v Goyal (no 3)
| Jurisdiction | England & Wales |
| Judge | MOSTYN J |
| Judgment Date | 16 January 2017 |
| Court | Family Court |
Financial remedy – Periodical payments – Variation – Practical considerations v principles – Impact of media reports on husband’s earning capacity a factor.
The husband, a banker, had become addicted to spread betting; his initial success had funded family holidays and other expenses but in the later years of the marriage, and after it, he lost very significant sums. Within financial remedy proceedings brought by the wife the judge made a number of findings that were adverse to the husband as a witness and as a litigant, including that he had deliberately withheld disclosure of documents and information.
When the proceedings began the husband had two English pension policies; at one stage he agreed to a pension sharing order giving the wife 50 per cent of these, but he later claimed to have cashed both pensions in, using the proceeds to pay debts. However, it emerged at the hearing that in fact he had converted the policies into an Indian annuity policy with a cash equivalent transfer value of over £87,000. The husband then claimed that he had assigned the benefits under the original pension policies to someone residing in India, in return for this person discharging some of the husband’s debts. The judge wanted more evidence and adjourned the wife’s pension sharing order application; however, he made a final order dealing with all other aspects of the financial remedy applications, including a periodical payments order of £500 per month to the wife.
At the adjourned hearing, the judge concluded that the policy was still beneficially owned by the husband and that its income was held by the husband for his own benefit. Taking the view that he was unable to make a pension sharing order or a pension attachment order because this was a foreign annuity policy, he required the husband to transfer or assign the policy to the wife, asserting a jurisdiction to do so ‘ancillary to … statutory functions under the Matrimonial Causes Act 1973’. He included statements within the order concerning his findings as to the beneficial ownership of the pension policy and its benefits.
The Court of Appeal allowed the husband’s appeal, concluding that the judge had been wrong to decide that he could not make a pension sharing order under the Matrimonial Causes Act 1973 with respect to a policy based outside the jurisdiction of England and Wales and that he had had, in any event, no jurisdiction to make a freestanding mandatory injunction. The Court of Appeal order indicated that the pension order was being set aside in its entirety.
At the rehearing the High Court judge decided that, because the original pension order had been set aside in its entirety, the question of the ownership of the pension fund needed to be re-determined. The judge further ruled that pension sharing pursuant to s 24B of the 1973 Act was not, in fact, available in relation to any foreign pension, notwithstanding what was said on the subject in the Family Court Practice. He identified alternative ways of sharing a foreign pension, but noted that these were not available in this case.
Notwithstanding the expectation of the original judge that within a year the husband and wife would be earning about £78,000 between them, neither party had obtained full time employment by the time of the adjourned hearing. The husband was earning relatively modest sums as a tutor and the wife remained on benefits.
Held – (1) The terms of the Court of Appeal judgment and the terms of the Court of Appeal order were irreconcilable. The judgment expressly relied on the factual findings made by the original judge and explicitly set aside paras 1 and 2 of the original order but not the declarations concerning the ownership of the Indian annuity contract. The fact that the words in the original order did not actually deploy the noun ‘declaration’ or a cognate variant of it did not mean they did not amount to a formal declaration. The words were not mere recitals, but findings of fact formally incorporated in a declaration within the court’s order. As such they were capable of being set aside on appeal, but could not have been set aside in this case because permission to appeal them had not been granted (or even sought). Therefore the Court of Appeal order purporting to set the original order in its entirety was mistaken and the declaration incorporating findings remained intact (see [4], [5], below).
(2) The bar that arose if issue estoppel was established was not absolute; a discretion arose to do justice. It was in principle possible to challenge a previous decision on a relevant issue not just by taking a new point which could not reasonably have been taken on the earlier occasion, but also to reargue in materially altered circumstances an old point which had previously been rejected, applying Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] UKSC 46 and quoting R (on the application of Mandic-Bozic) v British Association for Counselling and Psychotherapy & Anor [2016] EWHC 3134 (Admin) (see [6], [7], below).
(3) If the court were trying the ownership issue anew it would unhesitatingly conclude on the evidence that the husband was the beneficial owner of the annuity. However, its primary conclusion was that the husband had not established any good reason why in justice the principle of issue estoppel should not be applied here. Therefore, the declaration made by the original judge was fully effective (see [11], below).
(4) Although there were powerful reasons for making a supplementary periodical payments order in favour of the wife equating to 100 per cent of the annuity income, if, instead, some part of the income were to remain the husband’s, it would be less likely that he would manufacture obstacles to payment of the policy benefits. The husband was to pay the wife two-thirds of the quarterly income deriving from the annuity policy as it arose; this order was to...
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