Lykiardopulo v Lykiardopulo
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE THORPE,Lord Justice Stanley Burnton,Lord Justice Tomlinson |
| Judgment Date | 19 November 2010 |
| Neutral Citation | [2010] EWCA Civ 1315 |
| Docket Number | Case No: B4/2010/0540 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 November 2010 |
[2010] EWCA Civ 1315
The Honourable Mrs Justice Baron
Before: The Right Honourable Lord Justice Thorpe
Lord Justice Stanley Burnton
and
Lord Justice Tomlinson
Case No: B4/2010/0540
FD06D03137
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
Richard Spearman QC and Tim Bishop (instructed by Hughes Fowler Carruthers LLP) for the Appellant
Desmond Browne QC, Adam Wolanski and Stewart Leech (instructed by Atkins Thomson) for the 1st Respondent
David Balcombe QC ( instructed by Manches) for the Interested Party.
Hearing date: Thursday 7th October 2010
The Issue
This appeal raises a narrow point: how should a Family Division judge decide whether or not to publish an ancillary relief judgment at the conclusion of a trial during which one of the parties conspired to present a perjured case.
The question arises out of ancillary relief proceedings between Sally Ann Lykiardopulo and Panaghis Nicholas Fotis Lykiardopulo. The proceedings culminated in a ten day trial before Baron J which commenced on 26 th January 2009. She handed down her judgment on 13 th February 2009.
In her judgment she found that the husband, his brother and another influential family member had conspired to manufacture, for the purposes of the trial, documents which, on their face, were written in 2005 in order to terminate the husband's involvement with the family business and to divest himself of his interest therein.
The judge's findings are grave given that the Lykiardopulo family are amongst the most prestigious and ancient of Greek ship owning families. Having rejected the false case presented by the family, Baron J ordered the husband to transfer to the wife assets and cash amounting to some £20 million.
Development of the Issue
It is instructive to trace the development of the issue as to whether or not her judgment should be made public.
On 26 th February, junior counsel appeared before the judge to deal with the form of the order and some other outstanding issues. Mr Stewart Leech for the husband submitted: “There is one matter of substance…which is the publication of the judgment.”
He continued that it would be a matter of great significance to his client if a published judgment identified the parties.
Baron J responded: “I would never do that.”
Mr Leech informed the judge that Mr Bishop, for the wife, was seeking a report identifying the parties. This exchange ensued:
“ Baron J: What is the point of that Mr Bishop?
Mr Bishop: There is a very strong public policy reason to do that, My Lady, this is the worst case of non-disclosure ever before the English courts.
Baron J: I doubt it.
Mr Bishop: It unquestionably is, My Lady. It is a fraud involving £46.5 million to £100 million, it is an unrepentant fraud, it's a matter where your Ladyship has found that there has been an attempt to involve others in the perversion of justice. There are very strong public policy reasons.
Baron J: It is nothing like the case that I dealt with a year ago that has been published on an anonymised basis. That was far worse than this and I do not see at first blush, just so that you can think about it, that what you said is anything other than simply name and shame, and I do not see the point of it. There is a family involved in here, there are children involved. It just is ridiculous.”
On that date the payment of the lump sum was still in the air. The judge surmised that Mr Bishop's position might be “part of a tactic in order to make Mr Lykiardopulo pay up.” The husband's proposals were awaited and all issues were adjourned to a further hearing on 16 th March.
In the interim, letters passed between solicitors. On 4 th March the husband's solicitors offered instalment payments to be completed by 31 st March 2010. On 10 th March the wife's solicitors refused the offer. However, on 12 th March the wife's solicitors gave notice of the two issues upon which they would seek rulings at the adjourned hearing. In response to notice from the husband's solicitors that they sought the court's ruling on the publication or reporting of the judgment the wife's solicitors wrote: “We do not seek publication of the judgment in either an anonymised or unanonymised form.”
On 16 th March, during discussion as to dates by which money could be found, Mr Leech said: “Matters have been facilitated by the concession that the wife is not pressing your Ladyship to order a public judgment but that concession only came on Friday.”
To that the judge made this significant response: “As yet. I might take it on board myself if I felt that there was not assistance with the enforcement of my order to consider whether this should be published or not. I have made an order. I expect that order to be obeyed. If I do not feel that this family are cooperating with the enforcement of this order, I might find of my own motion that it was part of my duty that the public should know how this family have operated. I do not want to do that, because I do not want to ruin their business. I am sure it would have a long term effect, potentially, on their business. Nevertheless, I have made pretty strong findings in this case and I want my order obeyed.”
Mr Leech then enquired whether submissions were required on the public judgment point to which the judge responded that it was going “into the long grass, but it, no doubt, will resuscitate itself if things do not go smoothly.”
A further hearing was necessary on 3 rd April at which Mr Leech made plain that the threat of public reporting was causing stress to the husband and his brother.
These exchanges demonstrate that public reporting for public policy reasons suggested by Mr Bishop on 26 th February had slid into public reporting as an aid to enforcement. It is reasonable to infer that, having heard the judge's observations the wife's advisers felt that they were freed of their concession. For, when the judgment had still not been satisfied by the hearing on 25 th September, Mr Mostyn QC, leading Mr Bishop referred to the judge's observations transcribed on 16 th March thus: “…and we have reacted to that particular observation and the truth that the husband has not shown any assistance, any meaningful assistance, with implementation since you uttered those words in circumstances where we can confidently conclude he is doing everything in his power to avoid payment. Now it is interesting, My Lady, how fearful the husband is of publication and he is prepared to pay for (specialist counsel) to be here to try and prevent it.”
The judge then ruled that the publication issue should be adjourned to a future date and that skeleton arguments should be exchanged in advance.
The Hearing Below
That hearing took place on 21 st December 2009. In preparation the husband filed a statement in which he responded to the wife's application for public reporting. He suggested that the children of the family were mortified at the prospect of publication. In paragraph 8 he stated: “I can confirm that, as the judge noted during the hearings earlier this year, the effect of publication would be extremely damaging to the family business. There is much information in the judgment of considerable commercial sensitivity. There is no doubt that publicity would cause a great many difficulties, which may well ultimately adversely affect my children financially.”
As to himself he emphasised that he was not a public figure, had never courted publicity and was not “a celebrity of any sort, either in the UK or in Greece.”
Finally he emphasised that he had been dogged by a health condition for some years and that “the effect of having my private affairs exposed to media scrutiny would be to exacerbate my condition yet further.”
In her reply statement, sworn on the day of the hearing, the wife explained her motivation thus:
“I have been in two minds about making this application and have only done so because of his shocking attempts to cheat me by his sustained lies to the court by complying with the judgment promptly and in full (sic). The first respondent has shown a cynical approach to the question of compliance with the judgment and the court order…I now firmly believe it to be appropriate for the first respondent's litigation misconduct to be publicly known. This is principally because I feel it to be most unfair for his reputation to be preserved having behaved (and continuing to behave) so very badly towards me.”
At the hearing on 21 st December Mr Spearman QC led for the wife and Mr Browne QC for the husband. The judge reserved and on the 3 rd February 2010, handed down a characteristically thorough judgment in which she dealt fully with the context in which she exercised her discretion.
She traced the origins of the rule of privacy in ancillary relief proceedings and its justification. She recorded the significant rule changes which came into effect on 27 th April 2009 opening ancillary relief proceedings to accredited journalists. She cited the leading authorities concerning Articles 6, 8 and 10 of the European Convention of Human Rights which had to be applied to the issue before her. Finally in paragraphs 49 to 58 she struck the balance and announced her conclusion that the judgment should be reported after anonymisation. This was the middle path between public reporting sought by the wife and no reporting sought by the...
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