Howard William Thacker v Nichola Jane Thacker

JurisdictionEngland & Wales
JudgeLord Justice Wilson,Lord Justice Maurice Kay
Judgment Date31 July 2007
Neutral Citation[2007] EWCA Civ 912
CourtCourt of Appeal (Civil Division)
Date31 July 2007
Docket NumberCase No: 1) B4/2007/1277

[2007] EWCA Civ 912

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT, FAMILY DIVISION, PRONCIPAL REGISTRY

(MR JUSTICE BENNETT)

(LOWER COURT No. FD04D01100)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before

Lord Justice Maurice Kay and

Lord Justice Wilson

Case No: 1) B4/2007/1277

2) B4/2007/1278

Between
Howard William Thacker
Applicant
and
Nichola Jane Thacker
Respondent

Mr Richard Anelay QC (instructed by Messrs Astle Paterson) appeared on behalf of the Applicant Husband.

THE RESPONDENT WIFE DID NOT APPEAR AND WAS NOT REPRESENTED.

Lord Justice Wilson
1

By Appellant's Notice number B4/2007/1277, Mr Thacker seeks permission to appeal against an order for ancillary relief made against him in favour of Mrs Thacker, his ex-wife, by Bennett J sitting in the High Court of Justice, Family Division, on 25 May 2007. By Appellant's Notice number B4/2007/1278, Mr Thacker seeks permission to appeal against a collateral order made by the judge on that date, namely a freezing order designed to provide security for Mrs Thacker in the event of Mr Thacker's failure to comply with the substantive order. The challenge to the freezing order raises no question separate from those raised by the challenge to the substantive order; and in my view permission should either be granted in both cases or refused in both cases. It will not be necessary for me again to refer to the proposed appeal against the freezing order.

2

The judge's order for ancillary relief was that on or before today, namely 31 July 2007, Mr Thacker should make to Mrs Thacker a lump sum payment of £2 million in full and final settlement of all her claims save for one, namely an application for an order for variation of a Jersey settlement, which in effect the judge allowed her to hold in reserve for possible use in case Mr Thacker failed to comply with the lump sum order. The judge also made an order for costs against Mr Thacker and, subject to the grant to him of permission, which I believe he has not taken up, to apply instead for an order for detailed assessment thereof on the indemnity basis, the judge summarily assessed his obligation in respect of costs in the sum of £448,396 inclusive of VAT.

3

Both the parties are, I believe, British citizens. The wife is aged about 38 and lives with another man in Derbyshire, by whom she has a child now aged one and by whom she expects another shortly. The husband is aged 48 and lives in South Carolina. He has a girlfriend, with whom it may be that he partly lives. The parties were married in January 1996 and the judge found that their cohabitation in effect endured until March 1999 and that thereafter, until late 2002 or early 2003, they had a non-cohabiting but sexual relationship. There is no child of the marriage.

4

The substantive hearing conducted by the judge began on 21 May 2007, continued on 22 May and culminated in a judgment delivered orally on 25 May. Mrs Thacker was represented at that hearing by leading counsel. Mr Thacker was not represented and did not appear even in person at the hearing. This fact gives rise to the first ground of proposed appeal.

5

For on 18 May 2007, namely the Friday prior to the Monday when the hearing was due to begin, Mr Thacker's girlfriend faxed to Mrs Thacker's solicitors in London a medical report on Mr Thacker. Although the judge was technically correct to describe it as undated, Mr Anelay QC, who today appears on behalf of Mr Thacker, correctly points out that it seems to have been faxed from the doctor's consulting rooms on that same day, namely 18 May, and so prima facie that date can be attributed to it. The doctor, apparently a GP, wrote as follows:

“I am writing on behalf of my patient, Howard Thacker. Mr Thacker is experiencing attacks of extreme anxiety and depressed moods stemming from an adjustment disorder from his mother's death. Furthermore, he is having severe troubles with insomnia causing him to have extreme fatigue and irritability. He is not well enough at this time, to travel or to spend extended periods in stressful situations. We are personally working on techniques and medication therapy to adjust his mood and improve his overwhelming condition.”

In the covering letter the girlfriend asked the solicitors to produce the medical report to the judge on 21 May and she continued:

“Mr Thacker finally collapsed yesterday with an apparent mental breakdown caused by extreme anxiety brought on by his mother's death, financial pressure, bankruptcy and the continual pressure for yourselves in the current proceedings, he is currently unable to focus or perform work, travel or experience further stress.

Clearly and on the strict advice of his locally eminent doctor he unfortunately and most regrettably will be unable to attend the hearing next week. He needs a period of rest and treatment to regain his health and faculties.”

6

At the beginning of the hearing leading counsel for Mrs Thacker duly drew the judge's attention to the two letters but opposed the grant of any adjournment. The judge declined to adjourn the hearing. Mr Anelay wishes to argue that in this regard he exceeded the bounds of his discretion and that, in that the judge did not expressly conclude and was, so Mr Anelay says, unable to conclude that the medical report was untruthful, the only proper exercise of his discretion would have been to adjourn the hearing.

7

Courts hearing applications for ancillary relief are not infrequently asked by respondents, usually of course husbands, resident abroad to adjourn the substantive hearing; and the requests are often made by letter even as late as when the substantive hearing is about to begin. In such circumstances medical reports, of course from doctors who cannot be required to attend the English court and to elaborate on their reports, are often put forward in which they assert the respondent's ill-health. The courts then have to form a view, without making any cynical a priori assumption about the mala fides of the application, whether to abort the hearing after so much time has been invested in waiting for it and, at least on the applicant's side, after so large an amount of costs has been incurred in preparing for it. Thus Bennett J had to look at the application in context; and it is clear from the early parts of his substantive judgment, in which he explained his refusal to adjourn, that he purported to do so.

8

Thus the judge noted that the hearing beginning on 21 May 2007 had been fixed for that date as early as July 2006. He recognised the long further delay that would inevitably take place before the Division could offer further dates for hearing. He took note of the fact that Mr Thacker had been in breach of a number of orders for the filing of affidavits and the making of disclosure to Mrs Thacker, such that, on 10 March 2006, a relatively unusual order had been made, namely that, unless Mr Thacker completed his answers to a questionnaire served upon him by Mrs Thacker, he was to be debarred from opposing her substantive applications. The judge also noted that thereafter Mrs Thacker's side had taken the unusual course of declaring that it would be pointless for further orders for disclosure to be made against...

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