Kremen v Agrest and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 19 January 2012 |
| Neutral Citation | [2012] EWHC 45 (Fam) |
| Docket Number | Case No: FD09F00317 |
| Court | Family Division |
| Date | 19 January 2012 |
[2012] EWHC 45 (Fam)
Mr Justice Mostyn
Case No: FD09F00317
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr J Hamilton and Mr C Stirling (instructed by Richardson Smith & Co) for the Applicant
The Respondent (who did not appear) was assisted by Mr J Beck as a McKenzie Friend
Mr F Feehan QC (instructed by Horne Engall & Freeman) for the Intervener
Hearing dates: 12-16 December 2011
Mr Justice Mostyn:
This should, but probably will not, be the final chapter of this chronic and complex piece of matrimonial litigation. It is the hearing of the application by Janna Kremen ("W") for financial orders under Part III of the Matrimonial and Family Proceedings Act 1984 against her former husband Boris Agrest ("H"). W was granted leave to make this claim by Mr J. Cohen QC on 12 February 2009. There is also before me an application by Georgi Chesnokov ("GC") for a charging order absolute and a wide-ranging application by Leonid Fishman ("LF") which includes, among other extravagant claims, a request that he be paid $10m in satisfaction of a debt owed to him by H.
On 14 February 2011 the final hearing of W's application came before Holman J. He adjourned it and made a number of orders which included the discharge of an outstanding warrant of committal issued against H. He also, clearly and unambiguously, ordered that both H and W personally attend this hearing. Although on 19 October 2011 the Court of Appeal allowed an appeal by W against the discharge of the warrant by Holman J, I imposed at W's request a stay on its execution, thereby removing any impediment to H's attendance. H has nonetheless not attended, claiming that he cannot afford the air fare and hotel costs, which, as will be seen, is a false excuse. On all previous occasions he has sent his McKenzie friend Mr Beck to Court to protect his interest. Strictly speaking it is not proper to allow a McKenzie friend into Court if the party whose friend he is, is absent; after all the whole point of the "McKenzie friend" procedure is the provision of quiet assistance to a litigant in person who is actually there arguing his own case. The same situation presented itself to Holman J in February 2011 and he sent Mr Beck away stating in para 36 of his judgment of 15 February 2011:
A McKenzie Friend is a person who is permitted to sit beside a litigant-in-person in court in order quietly to assist that person in a range of ways fully described in various authorities, and indeed now very fully in the President's Guidance of 14 October 2008, now reproduced at page 2882 of the 2010 edition of the Family Court Practice (the Red Book). All those authorities and everything in that President's Guidance clearly contemplate that a McKenzie Friend is somebody who has a very important role in relation to a litigant-in-person who is himself personally present in the courtroom. There is absolutely nothing in any authority of which I am aware, and certainly nothing in that President's Guidance, to suggest that a McKenzie Friend is somebody who in some way can come to court without the presence at all of the litigant-in-person, but in some way to appear as a representative or advocate on his behalf. Before that can happen, an application has to be made for a case specific grant of a right of audience under the relevant statutory provisions, and no such application has been made to me, or so far as I am aware, to the court.
However, I have allowed Mr Beck to be in court and to lodge written submissions from H, which were highly abusive both of W and of the Court. I have been prepared to read these submissions, albeit with some misgivings, as there is a strongly arguable case that H, being in such blatant disregard and contempt of the extremely clear order of Holman J requiring his personal attendance has forfeited the right to have any document put in and read on his behalf.
W has complied with Holman J's order and is represented by Mr John Hamilton and Mr Christopher Stirling of counsel. GC is represented by Mr Frank Feehan QC. LF has not attended and is not represented and has lodged an application for the adjournment of his application.
I myself have given three previous judgments in this matter on 16 April 2010, 15 October 2010 and 3 December 2010. The latter two are reported at [2011] 2 FLR 478 and [2011] 2 FLR 490. I explained that the background could be collected from the earlier judgments of HHJ Hughes QC dated 16 May 2008, of Mr J Cohen QC of 12 February 2009 and of Thorpe LJ of 16 July 2009. Since my last judgment of 3 December 2010 the following further judgments (in addition to the judgment of Holman J to which I have referred) have been given and can be read on Bailii:
i) Agrest & Anor v Kremen [2011] EWCA Civ 259 (24 January 2011) where Black LJ dismissed the applications by H and Mr Fishman for permission to appeal my judgment of 15 October 2010.
ii) Everclear Ltd v Agrest & Kremen [2011] 2 FLR 506 (9 March 2011), where Mr Chesnokov's appeal against my judgment of 3 December 2010 was dismissed (Wall P, Sedley and Arden LJJ). Mr Chesnokov's application for permission to appeal to the Supreme Court was dismissed on 27 June 2011.
iii) Kremen v Agrest [2011] EWCA Civ 1014 (13 April 2011) where Black LJ granted W permission to appeal the order of Holman J dated 14 February 2011.
iv) Kremen v Agrest [2011] EWCA Civ 1482 (19 October 2011) where the Court of Appeal (Thorpe and Arden LJJ) allowed W's appeal from the order of Holman J dated 14 February 2011.
A central factual question for me to decide is whether H is guilty of material non-disclosure, and, if so, what conclusions as to the scale of his resources should be arrived at. In my recent decision of NG v SG [2011] EWHC 3270 (Fam) I attempted to summarise the case-law on this topic and stated at para 16:
Pulling the threads together it seems to me that where the court is satisfied that the disclosure given by one party has been materially deficient then:
i) The Court is duty bound to consider by the process of drawing adverse inferences whether funds have been hidden.
ii) But such inferences must be properly drawn and reasonable. It would be wrong to draw inferences that a party has assets which, on an assessment of the evidence, the Court is satisfied he has not got.
iii) If the Court concludes that funds have been hidden then it should attempt a realistic and reasonable quantification of those funds, even in the broadest terms.
iv) In making its judgment as to quantification the Court will first look to direct evidence such as documentation and observations made by the other party.
v) The Court will then look to the scale of business activities and at lifestyle.
vi) Vague evidence of reputation or the opinions or beliefs of third parties is inadmissible in the exercise.
vii) The Al-Khatib v Masry technique of concluding that the non-discloser must have assets of at least twice what the Claimant is seeking should not be used as the sole metric of quantification.
viii) The Court must be astute to ensure that a non-discloser should not be able to procure a result from his non-disclosure better than that which would be ordered if the truth were told. If the result is an order that is unfair to the non-discloser it is better that than that the Court should be drawn into making an order that is unfair to the Claimant.
A further key question, which is a mixture of fact and exercise of discretion, concerns the treatment to be given by me to a post-nuptial agreement signed by the parties in Israel on 15 May 2001, which was approved by an Israeli Court on 3 July 2001 and which was re-confirmed when an Israeli Court pronounced a divorce on 13 August 2003. This will require me to consider the judgments of the Supreme Court in Granatino v Radmacher [2011] AC 534 but viewed through the lens of s16(2)(d) Matrimonial and Family Proceedings Act 1984. An added complication is that H now argues that the Israeli Court had no jurisdiction to approve a separation agreement or to pronounce a divorce because he and W were never validly married as he was at the time of the ceremony of marriage in fact already validly married to a Russian lady, and indeed has in 2010 obtained an annulment from a court in Moscow of his marriage to W. As Black LJ stated in her judgment of 24 January 2011 at para 29 "…Mr Agrest's case now seeks to say that the Israeli orders were invalid because he was already married and therefore there was no marriage to provoke a divorce in Israel or a separation agreement…". Of course, this aspect makes no difference to W's claims under Part III, as the jurisdiction is equally exercisable after a foreign annulment. As Holman J stated in his judgment of 14 February 2011 "at the very most the husband's very late assertion that the marriage between these parties was a nullity might require only the relatively technical formality of amendment to the wife's underlying application under Part III and amendment to the language of the grant of leave to apply"
My task is to make a fair financial award having regard to my findings in relation to the above mentioned matters as well as all the other circumstances of the case as specifically mentioned in s25 Matrimonial Causes Act 1973, which is applied by s18 Matrimonial and Family Proceedings Act 1984. In so doing I will apply the familiar distributive principles of needs and sharing, giving first consideration to the welfare of the minor children of the family. The principle of compensation, as an independent ground for distribution, is not applicable to this case, and indeed in the vast generality of cases will not be applicable, it likely being confined only to the exceptional kind of case exemplified by McFarlane v...
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