H v GH
| Jurisdiction | England & Wales |
| Judge | Mr Simon Colton |
| Judgment Date | 07 December 2023 |
| Neutral Citation | [2023] EWFC 235 |
| Court | Family Court |
| Docket Number | Case No: BV17D08211 |
[2023] EWFC 235
Simon Colton KC SITTING AS A DEPUTY HIGH COURT JUDGE
Case No: BV17D08211
IN THE FAMILY COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ken Collins (instructed by Pinder Reaux & Associates Ltd) for the Applicant
Tom Harvey (instructed by Withers LLP) for the Respondent
Hearing date: 7 December 2023
Mr Simon Colton KC:
Introduction
This is an application (the ‘ Variation Application’) for an order varying the date for payment of a lump sum of £1.1 million (the ‘ Lump Sum’). The Lump Sum is currently due for payment by the applicant (to whom I shall refer as ‘the Husband’) on 19 June 2023, pursuant to an order made, by consent, by Roberts J on 10 December 2018 (the ‘ Roberts J order’). The Roberts J order was a final order made following financial proceedings under section 23 of the Matrimonial Causes Act 1973 (the ‘ 1973 Act’).
When first issued on 3 October 2023, the Variation Application sought to vary the date for payment of the Lump Sum to 30 June 2024. Subsequently, the Variation Application was amended, to seek an extension of the date for payment of the Lump Sum to 30 June 2025.
Under the Roberts J order, payment of the Lump Sum was secured by a mortgage over a flat (‘ Flat 5A’) which is the Husband's home. Following non-payment of the Lump Sum by the due date of 19 June 2023, there was correspondence between the parties, and then on 15 August 2023 the respondent (to whom I shall refer as ‘the Wife’) issued a claim for possession of Flat 5A, in reliance on the mortgage. On 6 October 2023, DJ Sterlini sitting at the County Court at Clerkenwell and Shoreditch, ordered the Husband to give the Wife possession of Flat 5A on or before 20 October 2023, and gave judgment in the sum of £1.1 million (the ‘ DJ Sterlini order’). The Husband has sought permission to appeal from the DJ Sterlini order.
On 22 November 2023, the Wife issued a cross-application to strike out the Variation Application. Following a directions hearing on 27 November 2023, the Wife confirmed that this application (the ‘ Strike Out Application’) was pursued on two grounds only, namely that:
i) The court lacks jurisdiction to extend the time for payment of a lump sum for a period of 2 years; and
ii) The Variation Application is a collateral attack on the DJ Sterlini order.
Today's hearing has been a ‘rolled-up’ hearing, considering the Strike Out Application alongside the Variation Application. At the end of the hearing I struck out the Variation Application on the basis of a lack of jurisdiction, while indicating that I would, in any event, have dismissed the Variation Application on the merits. I gave brief oral reasons, while indicating that I would give more detailed reasons in writing. I set out below those detailed reasons.
In addition, a number of points arose in relation to costs. I again gave brief oral reasons, and I set out my more detailed reasons below on that issue too.
The Strike Out Application
The jurisdiction issue
FPR 4.4(1) provides, so far as presently relevant:
“Except in proceedings to which Parts 12 to 14 apply, the court may strike out a statement of case if it appears to the court – (a) that the statement of case discloses no reasonable grounds for bringing or defending the application; (b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings…”.
‘Statement of case’ means the whole or part of an application form or answer: FPR 4.1(1).
FPR 4.4 does not give the court a power to grant summary judgment: Wyatt v Vince [2015] UKSC 14, [2015] 1 WLR 1228. Rather, examples of cases which fall within the rule are given in Practice Direction 4A, and include “ those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable application against the respondent”.
By the first limb of the Strike Out Application, the Wife argues that the Variation Application should be struck out under FPR 4.4(1)(a), on the basis that the court lacks jurisdiction to make the order sought.
Section 23(1) of the 1973 Act provides:
“On making a divorce, nullity of marriage or judicial separation order or at any time after making such an order (whether, in the case of a divorce or nullity of marriage order, before or after the order is made final), the court may make any one or more of the following orders, that is to say –
…
(c) an order that either party to the marriage shall pay to the other such lump sum or sums as may be so specified;…”
Section 31 of the 1973 Act provides for the variation, discharge, suspension or revival of certain orders:
“(1) Where the court has made an order to which this section applies, then, subject to the provisions of this section and of section 28(1A) above, the court shall have power to vary or discharge the order or to suspend any provision thereof temporarily and to revive the operation of any provision so suspended.
(2) This section applies to the following orders, that is to say –
…
(d) any order made by virtue of section 23(3)(c) or 27(7)(b) above (provision for payment of a lump sum by instalments);
(dd) any deferred order made by virtue of section 23(1)(c) (lump sums) which includes provision made by virtue of –
(i) section 25B(4),
(ii) section 25C, or
(iii) section 25F(2),
(provision in respect of pension rights or pension compensation rights);
….”
The application notice for the Variation Application identified no source for the court's jurisdiction to grant the Variation Application, other than that it was said to be “ pursuant to paragraph 40 of the [Roberts J] Order, stating that the parties shall have liberty to [apply to] the court concerning the implementation and timing of the terms of this order”. However, at the directions hearing on 27 November 2023, previous Counsel for the Husband, after accepting that section 31 of the 1973 Act did not apply to the order for the Lump Sum, submitted: “ There remains a power to extend the time for payment of a lump sum which is part of a series of lump sums. Established by CA in Masefield v Alexander [1995] 1 FLR 100 and approved in Hamilton v Hamilton…”.
Notwithstanding the concession made by his predecessor, Mr Ken Collins, Counsel now instructed for the Husband, submitted that the order for the Lump Sum in the present case fell within the scope of section 31(2)(dd), and thus the court had a statutory jurisdiction to vary it. I consider that argument to be plainly wrong. Section 31(2)(dd) was introduced by the Pensions Act 1995, and amended by the Pensions Act 2008. It does not apply to all lump sums, but only to those lump sums which include provision in respect of pension rights or pension compensation rights under one of the three identified sections of the 1973 Act. Contrary to Mr Collins' submission, I do not agree that the language “ which includes provision…” is intended merely to provide examples illustrating the breadth of section 31(2)(dd); on the contrary, I regard the language as limiting, restricting the application of that section to those lump sum order which make such provision. To hold otherwise, and to find, as Mr Collins argues, that section 31(2)(dd) applies to all lump sum orders, would be inconsistent with both the Court of Appeal in Hamilton v Hamilton [2013] EWCA Civ 12, [2013] Fam 292 at [39], and with the Supreme Court in Birch v Birch [2017] UKSC 53, [2017] 1 WLR 2959 at [26].
As Mr Collins accepted, the order for payment of the Lump Sum was not in respect of pension rights or pension compensation rights. It follows, in my judgment, that there is no statutory power in the court to extend the time for payment of the Lump Sum.
Turning to the court's inherent jurisdiction, in Masefield v Alexander [1995] 1 FLR 100 (CA) the husband had been ordered to pay a lump sum of £100,000 on or before 1 January 1994; in case of default, the marital home would be sold, with proceeds split in pre-determined percentages; on 31 December 1993, the husband sought an extension which was refused; and when, on 3 February 1994, he tendered the sum payable, it was rejected. The Court of Appeal held that the power exists to extend the time for payment of a lump sum ordered pursuant to section 23(1)(c) of the 1973 Act.
i) Butler-Sloss LJ held, based on earlier decisions, that it was “necessary to look at the purpose and effect of the application to extend time to see whether in truth it is intended to strike at the heart of the lump sum order or whether it is a slight extension… of no great importance, which does not go to the main or substantive part of the order”.
ii) Butler-Sloss LJ noted that “ It has long been recognised that the courts have the right to regulate their own proceedings”, citing Lord Denning in R v Bloomsbury & Marylebone County Court, ex parte Villerwest Ltd [1976] 1 WLR 362 where he spoke of the “ very wide inherent jurisdiction… to enlarge any time which a judge has ordered”.
iii) As Butler-Sloss LJ also held:
“It is a matter for the discretion of the court. It is not, however, an invitation for spouses to delay payment of lump sums or avoid compliance with strict timetables. In the majority of cases it would not be right for the court to intervene, particularly in the case of a consent order freely...
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