Melinda O. Abuchian v Sheikh Abdul Maksoud Mohammed Said A. Khojah
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Mostyn |
| Judgment Date | 29 September 2014 |
| Neutral Citation | [2014] EWHC 3411 (Fam) |
| Docket Number | Case No. FD14F00249/365 |
| Court | Family Division |
| Date | 29 September 2014 |
[2014] EWHC 3411 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Mr. Justice Mostyn
Case No. FD14F00249/365
Mr. M. Pointer QC and Mrs. R. Carew Pole (instructed by Schillings Solicitors) appeared on behalf of the Applicant.
Mr. T. Amos QC (instructed by Stephenson Harwood LLP) appeared on behalf of the Respondent.
This is my judgment on an application by the respondent husband to set aside a grant of leave under Part III of the Matrimonial and Family Proceedings Act 1984 to apply for financial relief under that Part. That leave was granted by Sir Peter Singer on an ex parte basis on 28 th July 2014.
Before I turn to the background of this case I should set out the relevant legal principles. In the Supreme Court decision of Agbaje v Akinnoye-Agbaje [2010] UKSC 13, [2010] 1 FLR 1813 at para.33 Lord Collins of Mapesbury said this:
"In the present context the principal object of the filter mechanism is to prevent wholly unmeritorious claims being pursued to oppress or blackmail a former spouse. The threshold is not high, but is higher than 'serious issue to be tried' or 'good arguable case' found in other contexts. It is perhaps best expressed by saying that in this context 'substantial' means 'solid'."
In my own decision of CG v IF [2010] 2 FLR 1790 I made some attempts to explicate these seemingly contradictory sentences. I say "seemingly contradictory" because in the first sentence which I have quoted it is obvious that Lord Collins intends that the bar established by the filter mechanism to be set very low to filter out the cases that he describes as wholly unmeritorious. In the next sentence however, and in seeming contradiction, he states that whilst the threshold is not high it is higher than the familiar tests used in judicial review proceedings or in appellate proceedings, namely a serious issue to be tried or a good arguable case. This seems to me to suggest that a case that is just a good arguable case would nonetheless not meet the threshold, but by the same token it is difficult to see how a case that is a good arguable case would be anything other than meritorious.
The third sentence introduces a different adjectival description to the test to that used in the Statute, namely "solid" as opposed to "substantial", but Lord Collins does not explain what the difference is between the two heuristics. In CG v IF I suggested at para.8 that there was, in fact, in terms of linguistics little to choose between the concept of substance and solidity and went on to suggest that a case would not pass the threshold of either substance or solidity unless the court could confidently state that there was, on the available evidence, a better than evens chance that the applicant would ultimately succeed in obtaining a substantive order.
As I have explained, although I have subsequently been roundly criticised for that view, I am pretty unrepentant about it. In my opinion it is very difficult to say that a case that has a less than evens chance of success is either substantial or solid; indeed, I would go on to say that a case that has a less than evens chance of success is, in terms of applying elementary logic, both insubstantial and tenuous. However it is plain that the phrases here (and this is probably a defect in my understanding for not appreciating it) are, in fact, terms of art; that "substantial" does not, in fact, mean substantial; and "solid" does not, in fact, mean solid.
This was made very clear to me by the decision of the Court of Appeal in Traversa v Freddi [2011] 2 FLR 272 where I was found to have been not wrong but doubly wrong. The second aspect of error that I fell into was my view set out in para.13 of CG v IF where I stated that, in my view, in a borderline case it would be appropriate for the court to adjourn the ex parte application to be heard inter partes. That suggestion by me was also roundly dismissed as erroneous by the Court of Appeal in Traversa v Freddi.
In Traversa v Freddi it was made abundantly clear by the Court of Appeal that the object of the filter is to weed out those applications that can truly be described as unmeritorious. In para.30 Thorpe LJ said this:
"It is clear that the section 13 filter is there to exclude plainly unmeritorious cases and, although, in the evaluation of substance, regard must be paid to overall merits, it does not call for a rigorous evaluation of all the circumstances that would be considered once the application has passed through the filter."
At para.31 he said this:
"At the hearing of the Section 13 application the judge will of course be conscious of the fact that, once through the filter, the applicant will have to clear a number of fences that the following Sections erect. Unless it is obvious that the applicant will fall at one or more of the fences, his performance at each is better left to the evaluation of the trial judge."
This demonstrates to me that if there are issues of fact, or if the case is not obviously one where there would be a later exclusion, then the case should be allowed to go forward. In his judgment at para.52 Munby LJ (as he then was) said:
"Thorpe LJ has referred to what Mostyn J had to say on the topic in CG v IF at para.8, where he suggested that 'substantial' and 'solid' require the court to be able to say 'confidently' that the probability that the applicant will achieve a substantive order were the matter to be tried is 'greater than or equal to 50%'. Mostyn J added (para.12) that where on an ex parte application, 'The needle appears to be flickering around the 50/50 probability mark' the court should be prepared to adjourn the application for leave to be heard inter partes, presumably in accordance with the views about procedure which he had set out earlier …"
At para.53:
"With the greatest of respect to him, I have to say that Mostyn J was doubly wrong. It was not for him to add some gloss; and the gloss he added was not merely wrong but quite inconsistent with Lord Collins' authoritative guidance in at least two respects. In the first place, a 'substantial' or 'solid' case, contrasted with a case which is 'wholly unmeritorious', is not a case requiring a 50% chance of success, and with all respect to Mostyn J's view Lord Collins said nothing to suggest it is. The second point is that the kind of inter partes hearing apparently contemplated by Mostyn J is simply outside the scope of what Lord Collins had in mind. To repeat, unless it is clear that the respondent can deliver 'a knock-out blow' the court 'should' adjourn an application to set aside to be heard with the substantive application."
The reference to a knock-out blow is to the final words of Lord Collins in para.33 of Agbaje where he stated this:
"In an application under section 13, unless it is clear that the respondent can deliver a knock-out blow, the court should use its case management powers to adjourn an application to set aside to be heard with the substantive application."
In para.54 of Traversa v Freddi Munby LJ (as he then was) stated this:
"I add only this. The emergent practice of listing or directing applications for leave to be listed on notice for hearing inter partes is compliant neither with the clear requirements of FPR 1991 Rule 13.7(1) nor, unsurprisingly, given the terms of the rule, with the authoritative guidance given by the Supreme Court. The practice should stop. The application for leave should be listed ex parte for a hearing which can be appropriately brief, as can the judgment either giving or refusing leave. Those minded to apply to set aside the grant of leave should be mindful of what Lord Collins said. Such an application, if nonetheless pursued, should be given an appropriately short listing to enable the respondent to demonstrate, if he can – and it will not take all that long, which is why the listing can be appropriately short – that he has some 'knock-out' blow. Unless the respondent can demonstrate that his application, if not dismissed then and there, should be adjourned to be heard with the substantive application."
To continue reading
Request your trial
-
Sareh Kimura Al-Baker v Abdul Amir Al-Baker
...the full extent of the husband's wealth. 21 Mr Todd QC reminds me that Mostyn J, at para. [20] of his judgment in Abuchian v Khojah [2014] EWHC 3411 (Fam), made clear that any Part III application which proceeds before the court should be dealt with like any other. The judge said: 'In my vi......
-
Wzr v Lwc
...Summons if not dismissed, should be adjourned to be heard together with the substantive claim. She relied on Abuchian v Khojah [2014] EWHC 3411 (Fam) where Mostyn J took heed of the Court of Appeal’s criticisms in Traversa v Freddi of his earlier decision and made the following observations......