John Ralph Hart v Karen Hart
| Jurisdiction | England & Wales |
| Judge | Lord Justice Kitchin,Lady Justice Asplin,Lord Justice Moylan |
| Judgment Date | 11 May 2018 |
| Neutral Citation | [2018] EWCA Civ 1053 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B6/2018/0644, 0651, 0672 & 0673 |
| Date | 11 May 2018 |
Neutral Citation Number: [2018] EWCA Civ 1053
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
BIRMINGHAM DISTRICT REGISTRY
SITTING AT BRISTOL (HHJ WILDBLOOD QC)
BM11DD02463
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Kitchin
Lord Justice Moylan
and
Lady Justice Asplin
Case No: B6/2018/0644, 0651, 0672 & 0673
Mr Grant Armstrong (instructed by The Law Practice Solicitors) for the Appellant
Mr Peter Mitchell (instructed by Irwin Mitchell Solicitors) for the Respondent
Hearing date: 18 April 2018
Judgment Approved
The husband, as I will call the Appellant, who is now aged 83, appeals from a committal order made by His Honour Judge Wildblood QC on 15 th March 2018 (“the March 2018 order”). This aspect of his appeal does not require permission.
The judge found that the husband was in breach of (i) an undertaking he had given on 25 th June 2015 which formed part of a final financial remedy order (“the undertaking”); (ii) a consent order made on 24 th February 2016 by which the husband was required to provide information by way of an Affidavit and to give the wife specified documents (“the February order”); and (iii) an order made on 29 th July 2016 which required the husband to provide specified information and documents to the wife (“the July order”).
The judge sentenced the husband to a term of imprisonment totalling 14 months in respect of the breaches of the undertaking; 14 months in respect of the breaches of the order of the February order; and 9 months in respect of the breaches of the order of the July order, all of which were ordered to run concurrently. The terms of 14 months comprised 9 months as a “punitive element” and 5 months as an “additional coercive element”. The committal order has been stayed pending determination of this appeal.
The husband also seeks an extension of time for appealing and permission to appeal from the undertaking and from the two orders referred to above. The husband seeks to appeal in respect of these latter matters because the committal order was based on breaches of each of them.
The grounds of appeal can be summarised as follows:
i) In respect of the undertaking:
a) It was outside the court's powers under section 24 of the Matrimonial Causes Act 1973 (“the 1973 Act”) and/or the court was functus officio;
b) It was too vague and imprecise to found an application for committal;
c) The husband was not in breach of its terms.
ii) In respect of each of the February and the July orders:
a) The court had no jurisdiction to make these orders because they were outside the court's powers and/or the court was functus officio;
b) The husband was not in breach of the orders in that he had complied or had complied sufficiently with each of them.
iii) In respect of the sentence, that it was excessive.
In his skeleton argument for the appeal hearing Mr Mitchell on behalf of the wife conceded that the appeal from the committal order should be allowed to the extent that the order and the sentence were founded on breaches of the undertaking. As explained by Mr Mitchell this was a concession made for pragmatic reasons. The husband had not sought to challenge the form of the undertaking until the issue was raised in Mr Armstrong's closing submissions to the judge at the conclusion of the committal hearing. It was then, for the “first time” (to quote the judgment), argued that the undertaking was too wide and too vague to found an application for committal. This argument was rejected by the judge. However, Mr Mitchell acknowledged the potential difficulties and rather than spend time at the appeal hearing addressing this issue he conceded the point. In his submission, the breaches found by the judge in respect of the undertaking did not add materially to the other breaches. Further, the sentence imposed was concurrent so did not add materially to the length of the term.
As a result of this concession, the committal order made in respect of the breaches of the undertaking will be set aside.
The financial remedy proceedings have been continuing since November 2011. This is an extraordinary length of time. On 31 st August 2017, when dismissing the wife's appeal from the substantive financial remedy order of 25 th June 2015 (“the June 2015 order”), I said, (para 11): “It is an unhappy observation to note that the parties have now been engaged in litigation for nearly 6 years. As at the date of the hearing below they had spent in excess of £500,000 on legal costs”. It is now almost a year since that judgment. The parties will have spent very substantial further sums. This is the antithesis of expeditious justice.
Background
Only a very brief summary is required because the factual background is set out in this court's judgment of 31 st August 2017: Hart v Hart [2017] EWCA Civ 1306, [2018] 2 WLR 509. By that judgment, the wife's appeal from the June 2015 order was dismissed. The effect of the order was to divide the parties' assets so that the wife had assets of approximately £3.5 million and the husband £5.9 million.
The June 2015 order contained a number of substantive provisions the most significant of which was the transfer to the wife of the husband's (100%) shareholding in a company called Drakestown Properties Ltd (“the Company”) valued at £1.6 million. The transfer of the shares was to be, and was, effected by 23 rd July 2015. The Company owns two properties which together have 80 industrial units. Its principal activity is the rental of those units.
As part of the June 2015 order the husband gave a number of undertakings including the undertaking that he would:
“take all steps necessary (including, for the avoidance of doubt, the provision of information and documentation and the notification of third parties of the cessation of his interest in Drakestown Properties Ltd) to ensure that the (wife) is forthwith hereafter able to conduct the efficient and effective management of Drakestown Properties Ltd and its assets”.
Since the June 2015 order, the parties have been engaged in continuing proceedings which the wife has contended were required to procure the effective implementation of the share transfer. The shares were transferred on the basis that the wife would continue to operate the business.
The wife brought proceedings in the Chancery Division against the husband and others to obtain possession of the Company's premises. On 30 th October 2015 an order was made that vacant possession be provided. The order included an undertaking by the husband to deliver up to the Company by 11 th November 2015 all of its physical and electronic documents and records in his possession or under his control.
When possession of the premises was given on 11 th November 2015 the only documents which were left were two bank statements and “a collection of current licences and leases relating to the units” (sentencing judgment para 6). HHJ Wildblood found that the husband had caused the offices “to be stripped out of records and documentation save” save for the above (committal judgment para 35).
The wife first applied for the husband's committal on 1 st October 2015 based on alleged breaches of the undertaking. At the first hearing on 24 th February 2016, a list was produced on behalf of the wife of the information and documents which she sought in respect of the Company and which it was contended she required in order to be able to manage its affairs. “After discussion” (committal judgment para 39) the husband (and his sister) agreed to provide what had been requested and the committal application was adjourned.
The February order, made by consent, provided, by paragraph 4(i) to 4(xxvii), that by 31 st March 2016 the husband must file and serve an affidavit “providing full details of” a range of information relating to the company's “Records”, including where they were kept, and how it managed its affairs. The “Records” were defined in the order as “the Accounting records, the Board records, the Correspondence and those documents and records referred to” specifically in the order. This provision was subject to the caveat that if it was the husband's case “that a particular matter is beyond (his) knowledge, (he) must say so and identify any person or persons who, in his opinion, holds the required information”.
The February order, by paragraph 5, also required the husband, by 31 st March 2016, to “deliver up to the (wife) such of the Records as are currently in (his) possession, custody or control”.
The husband's affidavit served pursuant to the order was sworn on 11 th March 2016.
On 29 th July 2016 the committal application was again adjourned. The July order contained a recital that the husband had “confirmed that the documents set out in paragraph 6 were available and could be provided”. Paragraph 6 of the order required the husband to provide to the wife a small number of identified documents and with some specified information by 2 nd August 2016. Paragraph 8 required the husband to provide the wife with a set of keys for a property in Florida. The order also provided that the wife must provide particulars of the breaches on which she relied by 16 th September 2016.
Committal Application
On 15 th September 2016 the wife issued her second committal application which included detailed particulars of the alleged breaches of the orders and the undertaking. It was this application which was finally determined by the March 2018 order as the wife did not pursue her first application.
The committal hearing was not listed until 6 th/7 th March 2017. It did not progress very far at that hearing. At the request of counsel then instructed on behalf of the husband the hearing did not start until 2.00pm on...
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