Kremen v Agrest and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lloyd |
| Judgment Date | 18 September 2012 |
| Neutral Citation | [2012] EWCA Civ 1266 |
| Date | 18 September 2012 |
| Docket Number | Case Nos: B6/2012/0342 B6/2012/0539 |
| Court | Court of Appeal (Civil Division) |
[2012] EWCA Civ 1266
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY
FAMILY DIVISION
(MR JUSTICE MOSTYN)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lloyd
Case Nos: B6/2012/0342
B6/2012/0503
B6/2012/0539
Frank Feehan QC (instructed by Horne Engall & Freeman LLP) appeared on behalf of the Applicant in 0342
John Beck appeared on behalf of the Applicant in 0503 as a McKenzie friend but was not granted a right of audience
Pavel Nikitin appeared on behalf of the Applicant in 0539 as a McKenzie friend but was not granted a right of audience.
The Respondent did not appear and was not represented.
This is the day appointed for the hearing of three applications for permission to appeal against an order of Mostyn J made on 15 February 2012 in matrimonial proceedings between Mr Boris Agrest, who I may from time to time refer to as "the husband", although the parties are divorced (if they were ever validly married), on the one hand, and Ms Janna Kremen, who I may refer to as "the wife". The matrimonial proceedings between them have been proceeding for a considerable amount of time and have given rise to a large number of judgments. The judgment from which, in effect, these permission to appeal applications arise was permitted by the judge to be reported as Kremen v Agrest (No.11) (Financial Remedy: Non-Disclosure: Post-Nuptial Agreement) [2012] EWHC 45 (Fam).
As I say, the judge made his order on 15 February, though it was amended under the slip rule on 27 February. The order was made in consequence of a judgment delivered on 19 January 2012 following a five-day hearing from 12–16 December 2011. At that hearing, Ms Kremen was represented by counsel, Mr Hamilton and Mr Stirling. Mr Agrest was not represented and did not appear, but he was assisted by Mr John Beck as a McKenzie friend. The judge made some reference to that, and I should say that Mr Agrest was absent from the hearing despite the fact that, to Mr Agrest's knowledge, Holman J in February 2011 had made an order that both Mr Agrest and Ms Kremen personally should attend the hearing.
Mostyn J, having referred to the fact that he was only represented, in any sense, by Mr Beck, and having referred to what Holman J had said about the very limited role of a McKenzie friend, said:
"However, I have allowed Mr Beck to be in court and to lodge written submissions from [Mr Agrest], which were highly abusive both of [Ms Kremen] and of the Court. I have been prepared to read these submissions, albeit with some misgivings, as there is a strongly arguable case that [Mr Agrest], 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."
But, as I say, the judge allowed Mr Beck to be present in court and to put in written submissions.
Mr Beck has attended court today, seeking to represent Mr Agrest on this application for permission to appeal. I have declined to allow Mr Agrest to be represented by Mr Beck in those circumstances. It seems to me altogether out of order that Mr Agrest should proceed in this way. Either he should attend personally, in which case he could address the court and he could have assistance from Mr Beck or any other McKenzie friend, or he should be represented in the proper way by someone with a right of audience before the court.
The judge, as I say, conducted the hearing, which was the final hearing of Ms Kremen's application for financial orders under Part III of the Matrimonial and Family Proceedings Act 1985 against her former husband, Mr Agrest. The judge also had before him an application by Mr Chesnokov for a charging order absolute and a further application by Mr Leonid Fishman which included, among other claims that the judge described as extravagant, a request that he be paid $10 million in satisfaction of a debt owed to him by Mr Agrest.
I start with Mr Agrest's appeal. This was put on the basis that the judge was wrong to hold, or at least to imply, that the husband and wife had moved to England in 1999 and on that basis wrong to hold that an agreement between them, which was referred to by the judge at "the post-nuptial agreement entered into in Israel", should be governed by English law. Secondly, he complained in his grounds of appeal that the judge ignored relevant factual evidence by way of documents submitted by Mr Agrest and relied on unsupported statements from Ms Kremen. Thirdly, he said that the judge showed bias in favour of Ms Kremen and against Mr Agrest. In his skeleton argument he introduced a further point, namely that husband and wife were never validly married because, at the time of the purported marriage between them, Mr Agrest was still married to a Ms Bozkho in Russia.
So far as those points are concerned, it is futile to argue that the order was wrongly made because the parties were never validly married, their marriage having been bigamous. As the judge pointed out in paragraph 7, this point having been mentioned before him, this would make no difference to Ms Kremen's claims under Part III. If the marriage was bigamous it needed to be annulled, and if it had been annulled (as is said to be the case) in Russia, the jurisdiction under Part III would equally well be exercisable in those circumstances.
Mr Agrest had taken this point already by the time of Holman J's judgment in February 2011, and that judge pointed out that if there was any substance to that point, all that it would have required was some technical amendment to the wife's underlying application and the order giving leave to her to apply, so there is nothing in that point. There is also no substance in the point about the date of the parties' move to England, because the judge looked at the agreement that was said to have been signed by the parties in Israel in May 2001 and he did not consider it as a matter that was in itself governed by English law. He simply looked at it under English law because the proceedings before him were necessarily governed by English law, being an application under the 1984 Act.
So far as the judge's failure to have regard to evidence put in by Mr Agrest is concerned, that is a bit rich in...
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