Harb v King Fahd Bin Addul Aziz (Nos. 1 & 2)

JurisdictionEngland & Wales
JudgeLORD JUSTICE THORPE,Lord Justice Thorpe,LADY JUSTICE SMITH,LORD JUSTICE WALL,LORD JUSTICE DYSON
Judgment Date09 November 2005
Neutral Citation[2005] EWCA Civ 633,[2005] EWCA Civ 1324,[2005] EWCA Civ 632
Docket NumberCase No: B4/2005/0072,Case No: B4/2005/0071
CourtCourt of Appeal (Civil Division)
Date09 November 2005

[2005] EWCA Civ 1324

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM HIGH COURT OF THE FAMILY DIVISION

PRINCIPAL REGISTRY.

Butler-Sloss P

FD04F00040

Royal Courts of Justice

Strand, London, WC2A 2LL

Before

Lord Justice Thorpe

Lord Justice Dyson and

Lord Justice Wall

Case No: B4/2005/0072

Between
Janan Harb
Applicant
and
His Majesty King Fahd Bin Abdul Aziz
and
The Department of Consitutional Affairs
Respondent Intervener

Mr J Turner QC (instructed by Messrs Burton Woolf & Turk) for the Applicant

Mr A Moylan QC & Mrs J Roberts (instructed by Messrs Howard Kennedy) for the Respondent

LORD JUSTICE THORPE
1

This appeal raises a pure point of law, easier to define than to decide.

2

On the 16 th January 2004 Mrs Harb issued an originating application against King Fahd Bin Abdul Aziz under section 27 of the Matrimonial Causes Act 1973. The resulting stages of the proceedings have attracted a good deal of publicity. The King's preliminary challenge was on the ground of sovereign immunity. That challenge was upheld in the judgment of Dame Elizabeth Butler-Sloss P of the 15 th December 2004. Permission to appeal was granted by this Court on the 26 th May 2005. The appeal was fixed for hearing in the Lord Chief Justice's court on 29 th November 2005.

3

However on the 1 st August 2005 the King died. On the 13 th September 2005 the King's solicitors wrote to this court reporting his death. The letter continued, "Accordingly, on the basis of established authority, these proceedings including the appeal to the Court of Appeal have abated." Whether or not that contention is correct in law is the issue which we must now decide.

4

The letter to this court of the 15 th September from the applicant's solicitors, who had received a copy of the letter of the 13 th September, correctly identifies the essential material for the resolution of the legal question namely:— Dipple v Dipple [1942] P. 64, Barder v Caluori [1988] A.C. 20, and Section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934. The letter also makes two additional points: first the application of the Human Rights Act 1998 and second the recent decision of this court in Bowman v Fels [2005] EWCA Civ 226. Given that the Department of Constitutional Affairs had in the interim intervened in the appeal it was suggested that this court should rule upon the sovereign immunity issue even if the applicant's claim had died with the death of the king.

5

The battle lines adopted in these two letters have not shifted. The full and skilful skeletons written by Mr Andrew Moylan QC for the respondent and by Mr James Turner QC for the applicant essentially elaborate upon the points taken in correspondence.

6

Mr Moylan has had the easier road. He has had only to identify the relevant statutory provisions and cite a clear line of authority which justifies the assertion in his instructing solicitor's letter. Mr Turner's road could fairly be described as up hill all the way.

7

To justify that contrast I will first set out the legislative provisions.

8

The essential content of section 27 of the Matrimonial Causes Act 1973 is contained in subsections 1, 3 and 6 as follows: —

"(1) Either party to a marriage may apply to the court for an order under this section on the ground that the other party to the marriage (in this section referred to as the respondent):—

(a) has failed to provide reasonable maintenance for the applicant,

(3) Where an application under this section is made on the ground mentioned in subsection (1)(a) above, then, in deciding—

(a) whether the respondent has failed to provide reasonable maintenance for the applicant, and

(b) what order, if any, to make under this section in favour of the applicant, the court shall have regard to all the circumstances of the case including matters mentioned in section 25(2) above…

(6) Where on an application under this section the applicant satisfies the court of any ground mentioned in subsection (1) above, the court may make any one or more of the following orders, that is to say: —

(a) an order that the respondent shall make to the applicant such periodical payments, for such term, as may be specified in the order;

(b) an order that the respondent shall secure to the applicant, to the satisfaction of the court, such periodical payments, for such term, as may be so specified;

(c) an order that the respondent shall pay to the applicant such lump sum as may be so specified;…".

9

It is to be noted that the right of application is given to "either party to a marriage" and that the right is against "the other party to the marriage". The other party to the marriage is thereafter referred to as "the respondent". Subsection (6) enables the court to make orders against "the respondent", by definition "the other party to the marriage". Thus these provisions are expressly limited to applications made during the joint lives of the parties.

10

There are two subsequent sections of the statute which expressly empower the court to make orders beyond joint lives.

11

First there is section 33, which by subsection 1 and 3 provides: —

"(1) Where on an application made under this section in relation to an order to which this section applies it appears to the court that by reason of- …

(b) the changed circumstances resulting from the death of the person so liable, …

(3) An application under this section may be made by the person liable to make payments under an order to which this section applies or his or her personal representatives and may be made against the person entitled to payments under the order or her or his personal representatives."

12

Section 36 provides for the alteration of maintenance agreements made during joint lives after the death of one party. The essential provision appears from the following abbreviated citation: —

"(1) Where a maintenance agreement within the meaning of section 34 above provides for the continuation of payments under the agreement after the death of one of the parties and that party dies domiciled in England and Wales, the surviving party or the personal representatives of the deceased party may, subject to subsections (2) and (3) below, apply to the High Court or a county court for an order under section 35 above.

(2) An application under this section shall not, except with the permission of the High Court or county court, be made after the end of the period of six months from the date on which representation in regard to the estate of the deceased is first taken out."

13

These express provisions reinforce the conclusion that section 27 provides a remedy only exercisable during joint lives. Of course if during joint lives the applicant's spouse obtains a secured provision order against the respondent spouse then the order, duly obtained during joint lives, continues to benefit one spouse after the death of the other. It would be a long stride to contend that the applicant had the right to apply for or to continue an application for secured provision after the death of the other spouse.

14

That the death of a respondent during the dependency of an application for orders under section 23 and or 24 might cause injustice to the applicant was recognised and safeguarded by the Inheritance (Provision for Family and Dependants) Act 1975. Section 14 provides: —

"(1) Where, within twelve months from the date on which a decree of divorce or nullity of marriage has been made absolute or a decree of judicial separation has been granted, a party to the marriage dies and—

(a) an application for a financial provision order under section 23 of the Matrimonial Causes Act 1973 or a property adjustment order under section 24 of that Act has not been made by the other party to that marriage, or

(b) such an application has been made but the proceedings thereon have not been determined at the time of the death of the deceased,

then if an application for an order under section 2 of this Act is made by that other party, the court shall, notwithstanding anything in section 1 or section 3 of this Act, have power, if it thinks it just to do so, to treat that party for the purposes of that application as if the decree of divorce or nullity of marriage had not been made absolute or the decree of judicial separation had not been granted, as the case may be."

15

No such safeguard was necessary in the instance of an application under section 27 terminated prior to judgment by the death of the respondent spouse since the applicant spouse can obtain relief by her application as widow under the Inheritance Act. Of course that ordinary procedural transfer is not open to this applicant since the respondent was not domiciled in England and Wales. Reference to the Inheritance Act simply reinforces the conclusion that the legislation has given careful attention to the rights of those spouses, former spouses and widows who are the victims of wilful neglect to maintain. It may be that this case demonstrates a lacuna, given the considerable volume of litigated disputes between spouses and former spouses where the respondent holds a foreign domicile. If there is such a lacuna it is clearly only Parliament that can address it.

16

This construction of section 27 of the Matrimonial Causes Act 1973 is consistent with a long line of authority construing previous or related statutory provisions stretching back into the 19 th Century. I do not intend to cite or review those authorities partly because Mr Turner concedes that they are all against him and partly because they were reviewed with customary clarity in the speech of Lord Brandon in Barder v Caluori. Of the eleven considered by Lord Brandon four were particularly emphasised by Mr...

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    ...is absolutely necessary into this unedifying and really rather sad dispute. As Thorpe LJ observed in Harb v King Fahd Bin Abdul Aziz [2005] EWCA Civ 1324, [2006] 1 WLR 578, [2006] 1 FLR 825, para 19, in response to submissions made by the claimant as to merits in a case where the Court o......
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