Kerim Richard Derhalli v Jayne Richardson Derhalli
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fancourt |
| Judgment Date | 18 November 2019 |
| Neutral Citation | [2019] EWHC 3286 (Ch) |
| Date | 18 November 2019 |
| Docket Number | Appeal Ref.: CH-2019-000163 |
| Court | Chancery Division |
[2019] EWHC 3286 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
CHANCERY APPEALS (ChD)
Rolls Building
7 Rolls Buildings
Fetter Lane, London
EC4A 1NL
Mr Justice Fancourt
Appeal Ref.: CH-2019-000163
Mr M. Glaser QC and Ms E. Betts (instructed by Farrer & Co. LLP) appeared on behalf of the Claimant/Respondent.
Mr N. Dyer QC and Mr N. Duckworth (instructed by Charles Russell Speechlys LLP) appeared on behalf of the Defendant/Appellant.
Hearing date: 18 November 2019
Approved Judgment
This is an appeal by Jayne Richardson Derhalli (“the appellant”) against an order made in the County Court at Central London on 3 May 2019. The proceedings before the County Court related to divorce proceedings between the appellant and her former husband, Kerim Richard Derhalli, the respondent to this appeal. In those divorce proceedings, a financial remedy order was made by consent by Holman J at a hearing on 28 September 2016. The issues on this appeal are concerned with the true interpretation of that order.
The proceedings brought in the County Court by the respondent were for possession of the former matrimonial home, 5 St Mary's Place, Kensington, London W8 (“the home”) and for the payment of mesne profits or damages for use and occupation at the rate of £5,000 per week. In those proceedings, preliminary issues were directed to be tried. The issues arose from the terms in which the appellant pleaded her defence of the claim. The preliminary issues directed were by reference to the following pleas:
“(f) Upon its true and proper interpretation the purpose and effect of the Consent Order was and is to permit the Defendant to occupy the property until the sale thereof, alternatively so as to reasonably permit completion of any such with vacant possession therefore, but in any event not earlier.
(g) Pending such a time the Defendant was and remains subject to a duty to pay for the outgoings upon the Property, but is not otherwise obliged to make any payments to the Claimant in respect of her use and occupation.”
Those were the paragraphs in the defence and the preliminary issue was whether or not those assertions were justified as a matter of the interpretation of the consent order.
The circumstances in which the preliminary issues were considered at a trial by Judge Nigel Gerald were that the financial remedy consent order provided for the immediate sale of the former matrimonial home. The appellant had continued to live in the home with her daughters, aged twenty and twenty-two at the time when the respondent left the home. The parties separated with the respondent moving out at the end of 2014 and the respondent proceeded to rent another home for himself in London. Each of the parties to the divorce proceedings owned a separate country property.
The home did not sell for a considerable period of time. That was unexpected. The appellant continued to live in the property. About six months after the consent order was made, the respondent served on the appellant a notice to vacate the home within twenty-eight days or, alternatively, to pay a market rent for the home assessed at £5,000 per week. The appellant did not vacate the property and did not pay rent. The respondent, therefore, issued the proceedings before the County Court on 8 December 2017, claiming possession and damages for use and occupation at that rate.
The home was eventually sold on the market in March 2019 and the appellant moved out at that time in order to facilitate a sale with vacant possession.
Judge Gerald decided the preliminary issues in favour of the respondent. He, accordingly, declared as follows:
“Upon its true construction the meaning and effect of the Consent Order is that on and from the date thereof the Defendant occupied St Mary's Place as a gratuitous licensee terminable on reasonable notice where-after she would be a trespasser liable to pay damages for use and occupation thereof until delivering vacant possession thereof, the court thereby rejecting the Defendant's construction thereof as pleaded in paragraphs 4(f) and (g) of said Defence.”
The order of 3 May 2019 then recorded that there was no issue as to the reasonableness of the duration of the notice to vacate and, on that basis, ordered assessment of damages for use and occupation for the period from 21 April 2017 to 26 March 2019, to be listed for determination by a District Judge in due course. Judge Gerald gave further directions in relation to that anticipated hearing.
An appeal notice was issued by the appellant on 20 June 2019. That notice sought the variation of Judge Gerald's order to answer the preliminary issues in the following terms:
“a. On its true and proper construction the purpose and effect of the Consent Order was to permit the Defendant to occupy [the home] until the sale thereof.
b. Accordingly, the answer to [issue (f) of the preliminary issues] is ‘yes’.
c. The answer to [issue (g) of the preliminary issues] is ‘yes’.”
Permission to appeal was granted by Arnold J by order of 21 June 2019. As I have explained, the issue on this appeal turns on the meaning and effect of the consent order.
The surrounding circumstances that relate to the interpretation of the order are common ground. These include that the divorce had been acrimonious, that the parties were wealthy, the house was valuable (it eventually sold for £5.9 million, albeit that was significantly less than the price at which it had first been marketed). The consent order is a matrimonial settlement, as its terms made clear, to resolve disputes about assets and money and to provide a clean break for the parties on their divorce. The home was registered in the respondent's sole name. It had been acquired during the parties' marriage. The respondent had moved to live elsewhere in London and the appellant remained in the home, as her home in London, with her two daughters, one of whom was at university by that time and one of whom had recently started employment in London.
The relevant terms of the consent order are the following. First, a recital which explains that, after consideration of the documents lodged by the parties following an agreement reached at a meeting at solicitors' offices on 6 June 2016, which was perfected outside court on that day, Holman J, sitting in private, made a financial remedy order.
The relevant clauses of the consent order are the following:
“12. The parties agree that the terms set out in this order (including the recitals, agreements, undertaking and the orders of the court) are accepted in full and final satisfaction of –
a. all claims for income;
b. all claims for capital, that is payments of lump sums, transfers of property and variations of settlements;
c. all claims in respect of each other's pensions;
d. all claims in respect of the contents of their properties and personal belongings including but not limited to furniture, artwork, jewellery and motor vehicles with the precise allocation of those chattels to be agreed or determined in accordance with paragraph 13 below;
e. all claims in respect of legal costs including those of the divorce/dissolution proceedings;
f. all claims against each other's estate on death; and
g. all other claims of any nature which one may have against the other as a result of their relationship, howsoever arising, either in England and Wales or in any other jurisdiction.
13. The parties agree that the chattels in Stonelands, St Mary's Place, St Raphael's Lodge, and 5B Cliveden Place (or the replacement rental property) which belong to the applicant or the respondent, shall be divided on the following basis:
…
g. And further, it is agreed that on the occasion of the valuer attending:
(1) Stonelands – the applicant or her solicitor (not both) may be in attendance;
(2) St Raphael's Lodge and St Mary's Place – the respondent or his solicitor (not both) may be in attendance.
14. The parties agree that they will each retain the assets in their respective sole names and that neither of them has any legal or equitable interest in the property or assets currently in the sole name or possession of the other, and neither of them has any liability for the debts of the other, except as provided for in this order. In particular, it is agreed that the respondent shall retain Stonelands.
20. The parties agree that with effect from 7 June 2016 the Respondent will be responsible for paying the outgoings on Stonelands.
21. The parties agree that with effect from 7 June 2016 the applicant will discharge the outgoings on St Mary's Place and St Raphael's Lodge. To the extent that the respondent makes any such payments on the applicant's behalf after 7 June and before the transfer of the standing orders and direct debits in relation to St Mary's Place and St Raphael's Lodge (which the respondent will arrange to be transferred to the applicant's sole bank account as soon as practicable) then such payments will be netted off against the lump sum payable in accordance with paragraph 36(b) below.
23. The parties agree that (save as provided in paragraph 13g(2) above) the respondent shall provide the applicant with at least 24 hours' advance notice of an intention to attend St Mary's Place and will endeavour to accommodate the applicant by going there at a convenient time for her.
24. The parties agree that the respondent shall have exclusive occupation of Stonelands...
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