Moore v Moore
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thorpe,Lord Justice Wall,Mr Justice Coleridge |
| Judgment Date | 21 October 2009 |
| Neutral Citation | [2009] EWCA Civ 1427 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2008/1651 |
| Date | 21 October 2009 |
[2009] EWCA Civ 1427
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY OF THE FAMILY DIVISION
(Mr Justice Bodey)
Before: Lord Justice Thorpe
Lord Justice Wall
and
Mr Justice Coleridge
Case No: B4/2008/1651
Mr A Khan (instructed by Messrs C T Emezie) appeared on behalf of the Appellant.
Mr G Crosthwaite (instructed by Messrs Crowther) appeared on behalf of the Respondent
Lord Justice Thorpe:
The appellant husband is Nigerian and was born in Nigeria. The respondent wife is of Nigerian origin but was born in London. The parties met in the United States in 1989 and commenced a relationship. Their marriage was celebrated in Lagos on 3 December 1994. By 2001 the marriage was in difficulty and broke down irretrievably within the month of August 2002.
The wife filed a divorce petition in Lagos in November 2002, but on 15 February 2006 she withdrew her petition in Lagos, leaving the husband's cross-petition still on foot. On 7 March 2006 she filed a petition in this jurisdiction and that attracted from the husband —not surprisingly —an answer, a summons challenging the courts’ jurisdiction and a summons for a discretionary stay under paragraph 9 of schedule 1 to the Domicile and Matrimonial Proceedings Act 1977.
The wife's first successful application led to a maintenance pending suit order made by District Judge Segal on 15 June 2006 in the sum of £20,000 per month. That order was discharged by Singer J on the husband's appeal on 2 November 2006. It appears that one of the bases for Singer J's decision was that the order made by the district judge did not rest on the foundation of any issued application. This setback for the wife was short-lived for she obtained, on 14 December 2006, a substitute order from Wood J in the reduced sum of £10,000 per month. The husband challenged that in this court by an application for permission, which was dismissed.
On 8 April 2008 Moylan J declared that the husband was the beneficial owner of a property in north London and he made the nisi charging order against that property absolute. This is an important development because the North London property is the only asset owned by the husband in the jurisdiction and thus is the only security for the enforcement of orders or maintenance pending suit and costs made against the husband. In the course of his judgment, Moylan J not only held that the husband's evidence had not been reliable; he went so far as to hold that it had been deliberately untruthful.
On 25 May 2008 the husband was granted a decree nisi on his cross-petition. However, on 16 June 2008 the wife appealed that order. A remarkable aspect of this case is that the summonses issued by the husband seeking trial of the preliminary issue as to jurisdiction and grant of a discretionary stay, although on their face seeking an expedited hearing, were never pursued with any sort of expedition. Accordingly, the Maintenance Pending Suit Order of 14 December grew from week to week, from month to month, from year to year, the husband ignoring the orders as if they had never been made. So, as well as mounting arrears, there was mounting interest due and also a mountain of costs’ debt as the husband ignored Costs Orders made against him at various stages.
This challenge to jurisdiction, to forum, and, through those challenges, to the Maintenance Pending Suit Order, did not come for hearing until 8 July 2008 when they were listed before Bodey J. Five days was allowed for the hearing to commence on 7 July. On that Monday the judge took a reading day. He heard oral submissions but no evidence on Tuesday, Wednesday and Thursday. On Friday afternoon, towards the end of the day, he delivered an extended judgment. The whole purpose of that contested hearing shifted dramatically when, on the first day, the wife conceded that she would not proceed further in this jurisdiction and withdrew her petition. Obviously the consequence was that the Nigerian decree would dissolve the marriage, if the wife's challenge to that decree was not upheld. But that did not enable the judge to turn his attention to other work, since, as he records in his judgment, on the working day immediately before the case was due to start Mr Umezuruike, the husband's counsel, submitted a skeleton argument to which he attached a draft summons and a draft affidavit in support, seeking the discharge of the Maintenance Pending Suit Order made by Wood J. So Bodey J in paragraph 4 thus summarised the issue:
“The issue, in view of the wife's concession that the English court is not now going to be asked to take jurisdiction, is as to whether or not the husband is still bound in law to pay her those arrears of maintenance pending suit; or whether, on his very late application, the court should either discharge the order as from the date it was made (described during this hearing as ‘ab initio’) or else remit the arrears.”
In a full and impressive judgment, Bodey J meticulously introduced the background, summarised all the relevant chronology, dealt briefly with the wife's application for an Hadkinson Order, recorded the contrary submissions of Mr Umezuruike for the husband and Mr Crosthwaite for the wife, and then gave his conclusions in the final section of the judgment. His conclusion was first that, as matter of law, the withdrawal of the wife's petition did not clean the slate and that the husband remained liable for all arrears arising between the date of the Maintenance Pending Suit Order and the date of the wife's withdrawal. Secondly, he concluded in the exercise of his discretion that it would be quite wrong to remit any of those arrears.
The significant orders in this case have been those of Wood J, Moylan J and Bodey J. As I think I have already recorded, the orders of Wood J and Moylan J were both validated in this court when the husband's application for permission to appeal was dismissed. So it could be said to be conv0entional that the husband applied for permission to appeal the order of Bodey J. The application was considered on paper by Wilson LJ on 18 July 2008 when he refused a stay of execution on the basis that there was no order below that was susceptible to stay, and he further directed the permission application be adjourned to be listed for oral hearing. The oral hearing took place before me on 18 December when I was persuaded by Mr Umezuruike that he was entitled to a further hearing before a fully constituted court, given that he had argued that brief passages in the reported case of Moses-Taiga v Taiga [2005] EWCA Civ 1013 were susceptible to rival interpretations. However, I gave a very strong warning to the husband that the costs risk that he would run should he choose to pursue the limited ground of a further oral hearing on notice with appeal to follow if permission granted. I concluded by saying:
“So, although I cannot in conscience say that there is not an arguable point, I do urge the applicant to consider most carefully the wisdom of proceeding further in this court.”
My warning was not heeded, and there followed an application for security. On 17 March 2009 security in the sum of £15,000 was ordered. It was not brought in by the due date, and an application for relief came before the court on 3 April when my Lord, Wall LJ, granted a brief extension to the end of that month and the money was duly brought in on 28 April. So the husband has established his entitlement to this court's consideration of the legal argument.
Now, the argument has shifted in some degree since the case has been taken over by Mr Arfan Khan, who has appeared before us today pro bono. We are very grateful to Mr Khan for his argument, which is contained in a full and careful skeleton argument dated 19 October. The husband should be equally grateful to Mr Khan who has argued from the foundation of that skeleton this morning and has advanced every submission that could possibly...
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