Jawal Iqbal v Marie Iqbal
| Jurisdiction | England & Wales |
| Judge | Sir Ernest Ryder,Lord Justice Simon,Lord Justice Patten |
| Judgment Date | 25 January 2017 |
| Neutral Citation | [2017] EWCA Civ 19 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B6/2015/1257 B6/2015/2513 B6/2015/2515 B6/2015/2516 B6/2015/2517 |
| Date | 25 January 2017 |
[2017] EWCA Civ 19
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL FAMILY COURT
His Honour Judge Brasse
FD10D01663
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Patten
THE SENIOR PRESIDENT OF TRIBUNALS
and
Lord Justice Simon
Case No: B6/2015/1257
B6/2015/2511
B6/2015/2513
B6/2015/2515
B6/2015/2516
B6/2015/2517
Mr Michael Glaser (instructed by Boodle Hatfield LLP) for the Appellant
Mr Nigel Taylor (instructed under the direct access scheme) for the Respondent
Hearing date: 3 November 2016
Approved Judgment
Sir Ernest Ryder, Senior President:
On 13 December 2010 District Judge Roberts made an interim financial remedy order in divorce proceedings between Mr Jawal Iqbal and Mrs Marie Iqbal who for the purposes of this judgment I shall refer to as husband and wife. She ordered the husband to pay to the wife periodical payments in the sum of £10,000 per calendar month.
On 25 March 2015 His Honour Judge Brasse made a final financial remedy order between the parties whereby the husband was ordered to pay to the wife a lump sum of £3,220,000 by 1 May 2015, arrears of periodical payments of £530,000 by the same date and future periodical payments in the sum of £10,000 per calendar month in advance by standing order.
The parties are now in their early 40s. They met as university students in the United States. They were married in a religious ceremony in 1993 and in a civil ceremony in New York in 1996. There are three children of the marriage, one of whom is under 18. The youngest child lives with his mother and the elder two children are at university in the USA.
The parties lived with the husband's wealthy extended family in Pakistan until the summer of 2007 when they moved to New York. They were supported while living in Pakistan by the husband's family to the extent that the husband described that part of their life as a 'grace and favour existence'. In 2009 the couple moved to London. It is common ground that by the time of the move to New York, the husband and wife were estranged from the extended family in Pakistan and from their financial support. The marriage came to an end in 2009 and the wife filed her petition for divorce on 17 March 2010 and her Form A on 26 July 2010. Decree absolute was pronounced on 12 August 2010.
From the time of the move to New York the parties lived on borrowed funds. There was apparently no evidence before the court of the husband's access to the wealth of the extended family in Pakistan after July 2011 save that the husband's mother allowed him to live in her flat in London. The husband returned to Pakistan in 2011. He has not attended any hearings of the courts in England and Wales since the hearing before King J on 25 July 2011. The extent to which the husband is participating in rather than actively or passively avoiding the proceedings in this jurisdiction is an issue in the proceedings.
The chronology of relevant orders for the purposes of this appeal is as follows:
a. Interim periodical payments order made by DJ Roberts on 13 December 2010;
b. Order on a judgment summons made by Her Honour Judge Hughes QC on 8 April 2011;
c. Order made by King J on 25 July 2011 dismissing the husband's appeal against the order made by DJ Roberts;
d. Order on a judgment summons made by Mr Recorder Cusworth QC on 28 February 2014;
e. Orders on judgment summonses made by HHJ Brasse on 31 October 2014 and 1 December 2014
f. Order on a final hearing made by HHJ Brasse on 27 March 2015.
The husband appeals as of right (under section 13 of the Administration of Justice Act 1960) against the orders made on the judgment summonses and with the permission of the court in respect of the second appeal against DJ Roberts' order, the appeal against the dismissal of the first appeal by King J and the final order made by Judge Brasse. In each case McFarlane LJ extended time to appeal when permission to appeal was granted and granted a stay of the committal orders pending this court's determination.
The key issue on the facts at the interim and final hearings was whether the husband had and has the ability to make the payments ordered including, if appropriate, by reliance on the bounty of an outsider (ie his extended family if the court is satisfied that such a person would provide the money). I record the fact that in this judgment no observations are made about the evidence that relates to the section 25 factors in this case including the nature and extent of the parties assets, resources, needs or earning capacities because this court has not had the benefit of all of the evidence filed nor that which should be filed before any final determination is made.
There was significant challenge to the nature and extent of the direct evidence and the inferences to be drawn from the same in relation to the key issue at the time of the hearings before DJ Roberts and King J. That said, it was always the case that DJ Roberts drew the provisional inferences that she did on a prima facie rather than a concluded basis and in the following context:
"[19] This is an interim order designed to hold the line and provide for the wife and these three children pending the final hearing. If it turns out after trial that the order was either too generous or was insufficient, that can in due course be reflected within the terms of the final order."
In another case where the matter can be fully argued, it might be appropriate to test the limits of that approach. There are of course limits to the same, not least as respects what is a reasonable inference to be drawn from the prima facie material submitted by each party. In most interim hearings findings of fact are not made because it is not necessary to do so on necessarily incomplete material with the consequence that the court addresses the statutory factors and the test for the interim order for which application is made having regard to the balance of persuasion between the prima facie cases and that is an appropriate methodology.
Given the necessary evidential limitations of the exercise conducted by DJ Roberts and for the same reason the first appeal heard by King J, if this court were to conclude that the determination at the final hearing had to be set aside, it would remain open to the husband to argue on fully contested evidence for different findings of fact which would render the inferences drawn by DJ Roberts irrelevant to the final determination. Furthermore, if as a consequence of such findings the inferences that led to the interim order are wrong or materially different that would have the consequence that the court undertaking the final hearing would have to consider remission of some or all of the sums due under the interim order as part of its final determination. Accordingly, this court concentrated its scrutiny on the final hearing to decide that question. The court then moved on to look at the way the enforcement proceedings were conducted between the interim hearing and the final hearing.
It should be noted that the husband was excused attendance at the hearing before DJ Roberts and that he had filed his evidence in accordance with the court's directions. The wife was then a litigant in person. She attended before the court and made submissions based upon a signed letter that she relied upon that had no statement of truth on its face. She was not sworn to give evidence. It is said that in her submissions she informed the court about matters about which the husband had no advance notice and, putting it at its lowest, with which he would disagree. One of those issues concerns the existence of an alleged trust fund. It will therefore not be a surprise to anyone that there will be significant factual issues at the final hearing and that it is highly likely that no reliance can be placed on interim conclusions in respect of those issues which will need to be determined from first principles on the evidence available.
It might have been better, given what transpired, for the judge at the interim hearing to confine the wife to the evidence in writing that had been properly attested to, filed and served given that the husband's attendance had been excused. That might have necessitated an adjournment with or without an interim financial remedy order to ensure fairness to both parties, until the evidence of both parties on notice was available. In any event, the wife should have been sworn so that on a subsequent occasion her submissions could be effectively relied upon if necessary or challenged should they be found to be untrue.
Having heard the appeal, this court concluded that elementary procedural protections that the husband had a right to expect would be observed were not. The consequence is that the final hearing was procedurally unfair and the order made at the end of it must be set aside and the matter remitted for final hearing before a new judge. My reasons for concurring in that decision follow. For the reasons I give above, it is not necessary in that circumstance to consider any further the interim orders of DJ Roberts and King J save to reiterate the fact that no reliance can be placed on the interim conclusions reached in judgment on either occasion. The subsequent enforcement hearings were wholly irregular in that no procedural protections were provided at all. The consequence is that all of those orders were set aside.
The Final Hearing:
Directions for the final hearing were made on 31 October 2014. Given the excusal of the husband from the interim hearing, his attendance at the first appeal, his subsequent absence and the nature and extent of the documents which he had filed with the court in purported compliance with its directions, it would have been appropriate for the court at the...
To continue reading
Request your trial
-
James William Murray Guthrie v Irene Elizabeth Guthrie
...v Hamlin [1985] 2 All ER 1037 followed Imerman v Tchenguiz and others; Imerman v Imerman [2011] Fam 116 mentioned Iqbal v Iqbal [2017] EWCA Civ 19 Johnson v. Johnson SCCivApp No. 20 of 2015 mentioned Jupp v. Jupp SCCivApp No. 37 of 2011 mentioned M.G.O. v. F.C.O. SCCivApp No. 10 of 2015 m......
-
Pdvsa Servicios S.A. v Clyde & Company LLP
...of the SBLC. (On this see the observations of Christopher Clarke LJ in other litigation between POS and PDV concerning the SBLC at [2017] EWCA Civ 19 at [55]–[57] and 3 In August 2015 an UNCITRAL arbitration was initiated by PDV, the seat of which was in Paris. PDV claimed US$0.934 billion......
-
Financial Remedies
...made upon the filing of a statement in 112 FPR 2010, r 33.11(2). 113 FPR 2010, r 33.11(3). 114 FPR 2010, r 33.14(2). 115 Iqbal v Iqbal [2017] EWCA Civ 19. 116 Attachment of Earnings Act 1971 and CCR, Ord 27. 117 Charging Orders Act 1979 and CPR 1998, Part 73. support of the application. A d......