Lazaros Panagiotis Xanthopoulos v Alla Aleksandrovna Rakshina
| Jurisdiction | England & Wales |
| Judge | Sir Jonathan Cohen |
| Judgment Date | 04 April 2023 |
| Neutral Citation | [2023] EWFC 50 |
| Court | Family Court |
| Docket Number | Case No: ZZ20D49528 |
[2023] EWFC 50
Sir Jonathan Cohen
Case No: ZZ20D49528
IN THE FAMILY COURT
SITTING AT THE ROYAL COURTS OF JUSTICE
Royal Courts of Justice
Strand, London, WC2A 2LL
The Applicant did not attend. Miss S Hillas KC and Miss H Wood (instructed by Miles Preston) attended on the first day.
Miss L Stone KC and Miss H Williams (instructed by Family Law in Partnership) appeared on behalf of the Respondent.
Hearing dates: 15 – 22 March 2023
Approved Judgment
This judgment was handed down remotely at 10.00am on 4 April 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
This judgment was delivered in private. The anonymity of the children and the other members of the family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
Introduction
I am dealing with the husband's application for financial remedy orders pursuant to leave given under Part III of the Matrimonial Family Proceedings Act 1984. The parties' marriage was brought to an end by a decree of divorce granted in Russia on 11 March 2021 and permission to apply under Part III was given on 15 June 2021.
This case has a depressingly lengthy history. It began when H laid a trap for W by issuing but not serving a petition for divorce in England on 21 September 2020, obtaining a without notice freezing order on 2 October 2020, and then serving his divorce petition and order late that night, a few days after W's return to London from Russia.
In the 2 1/2 years since then the parties have been engaged in some of the most costly and destructive litigation imaginable. The total costs of their litigation about jurisdiction, children and money are now approaching £9m. Every penny of this has been funded by W. There are a series of cost orders made against H to which I will refer later which present particular difficulties in this case.
In the divorce and money proceedings alone, H has been represented by no less than 7 firms of solicitors, one of whom was instructed on two separate occasions, 12 King's Counsel and an array of juniors. Yet, at this hearing his lawyers departed on the first day and he has not attended at any time.
The parties have had, so I was told, well in excess of 60 hearings in Russia and England. This case was assigned to me in November 2021. Since then in the money proceedings alone, I have conducted a 7 day preliminary issue hearing as to the ownership of a London flat and this hearing was listed for 13 days, although it took less long. There have been 13 directions hearings before me according to the bundle provided. If I were to add in the children proceedings before me, I must have seen these parties in court on some 40–50 different days.
This grossly exorbitant use of the court's time and W's money has been contributed to in significant part by H's failure to comply with court directions and the repeated LSPO applications consequent upon the various changes of solicitors.
This hearing
On 9 March 2023 H made an application by leading and junior counsel to adjourn this final hearing which was due to begin on 13 March. I refused the application but put back the start date to 15 March to allow his new(ish) lawyers more time for preparation.
I gave a detailed judgment setting out my reasons for refusing the adjournment and I will only summarise them here:
i) This case had been listed since October 2022 when I took out the final hearing fixed for December 2022 as it was apparent to me that the case was unlikely to be ready by that time;
ii) H had been hospitalised in Greece for one month between mid-October – mid-November suffering from severe depression. A reporting English consultant psychiatrist has described his severe depression as lasting from the date of his admission to the end of 2022. He does not venture an opinion as to whether and for how long H did not have capacity.
iii) After his discharge from hospital I next saw H on 19 January 2023 when he appeared before me in person. He was lucid and coherent and appeared very much to be the same person that I had seen so many times before. The reporting psychiatrist described him as not then having the capacity to appear as a litigant in person on that date. As he did not see H until the last days of February, I am not sure what this conclusion could have been based upon other than H's self-reporting, nor is it clear whether the psychiatrist was drawing a distinction between having capacity to litigate and capacity to be a litigant in person, which of course he then soon ceased to be. In any event, the report concludes that H did have capacity by the start of February when he instructed his last firm of solicitors.
iv) These solicitors were instructed on 2 February 2023. They thus had 6 weeks to prepare for the case which should have been sufficient.
v) I accept that H was and is still suffering from moderate depression for which he is taking medication prescribed by the Greek doctors albeit that the expert thought that it was not the optimal prescription.
vi) Whilst a change of medication might improve H's functioning (in particular his concentration and his mood), there was no guarantee, in particular because the underlying cause for his condition was his distress at his separation from his younger daughter who now lives in Russia where she was taken by her mother in May 2022. That situation will not be likely to change. If adjourned, the court might very well find itself in exactly the same position at any time in the future.
vii) There is no suggestion in the report that H could not properly cope with the court process given appropriate support. I made it clear that I would be amenable to a number of special provisions, including:
a) Sitting short days
b) Taking breaks mid-session
c) Permitting H to talk to his lawyers during the course of his evidence as suggested by the doctor.
viii) I accommodated the pressures on his lawyers by extending their time for the provision of documents and I allowed them and H the opportunity of an extended examination in chief to cover matters not set out in their documents.
I was convinced that with these measures in place H would have a fair trial. No other adaptations were sought. The fairness of the proceedings was the touchstone for my determination.
The application for an adjournment was strongly resisted by W. It was rightly said that fairness to W needs to be taken into consideration just as much as fairness to H. W is entitled to have these ruinous proceedings brought to an end. The additional costs, both financial and emotional, to her of an adjournment cannot be overlooked.
At the hearing on 9 March I made provision for H to file an abbreviated section 25 statement and position statement and at his own request through counsel, orders for:
i) Questions to go to the single joint expert (SJE) on Russian company law about matters relating to valuation; and
ii) A production order to Coutts Bank, whilst refusing a similar production order to Graff jewellers.
I never received any documents from H's lawyers. Nor did I receive the other documents which I had repeatedly re-timetabled at his request including:
i) H's evidence by way of s.25 statement and housing particulars suitable to meet his needs
ii) Reply to the schedule of deficiencies served upon him
iii) Updating disclosure
iv) His full medical records
v) Any open offer.
All this might imply that H had disengaged from his lawyers, but that was not the case. They were in contact with him as late as the evening of 13 March. When they appeared before me on 15 March they told me that they were not without instructions. In carefully drafted words leading counsel said:
It would not be right to tell the court that we are completely without instructions. But such instructions as we have received mean that we – the whole team – are unable to discharge our professional obligations. Sadly, as a consequence and having checked our professional duties very carefully, Miss Wood and I have no choice but to withdraw.
Miles Preston are also in the same position and they, through me, make an application in the face of the court to come off the court record.
I was informed that their client was made fully aware that they were going to ask the court to be discharged. I allowed the application and H's legal team left court.
H had attended the hearing on 9 March. It was a remote hearing because I was on circuit at the time. H did not turn on his camera so that it was impossible to know whether he was in England, or Greece or elsewhere. W suspects that he was and is in Greece. Since then there has been neither sight nor sound of H. No message has been sent to say what was going on. He simply vanished.
I was asked to consider striking out H's claim under FPR r.4.4 but decided against that course. It would have been likely only to result in further litigation. There needs to be an end to it.
Although H's absence was regrettable, it impeded the conduct of the hearing less than might be imagined. I say that for the following reasons:
i) I had H's Form E from December 2021 and his (incomplete) replies to questionnaire from June 2022.
ii) W accepted that H had no significant resources of his own. So far as liabilities were concerned, I had an up-to-date schedule of what he owed his lawyer, in so far as known to W's lawyers.
iii) I had conducted the preliminary issue hearing in July/August 2022 where much of the material relevant to these proceedings had already been given in evidence, both written and oral.
iv) The issues that arose had been very well...
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