Mubarak v Mubarik (No 1)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE THORPE,LORD JUSTICE BROOKE |
| Judgment Date | 14 December 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J1214-1 |
| Docket Number | B/2000/3465 B/2000/3408 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 December 2000 |
[2000] EWCA Civ J1214-1
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION
(Mr Justice Bodey)
The Royal Courts of Justice
The Strand
London WC2A
Lord Justice Thorpe
Lord Justice Brooke
Mr Justice Jacob
B/2000/3465
B/2000/3400
B/2000/3408
MR C HOWARD QC and MR R HARRISON (instructed by Bates Wills & Braithwaite, Cheapside House, 138 Cheapside, London EC2V) appeared on behalf of the Applicant
MR J RUSSELL (instructed by Pullig & Co, DX 123 Chancery Lane) appeared on behalf of the Respondent
Thursday 14th December 2000
In July 1998, Mrs Murbarak initiated ancillary relief proceedings against her husband, as I will call him for convenience. At the very outset, leading counsel on her behalf applied to Bracewell J and obtained an order in very wide terms, freezing his assets as defined in paragraphs (i) and (ii) of paragraph 1. Paragraph 2 of the order required almost the impossible, namely that he should disclose his assets in writing within 72 hours, and by affidavit of means within seven days. However, Messrs Withers, on his behalf, more or less performed the impossible, since on 31 July they wrote a letter to the solicitors then representing Mrs Murbarak, in which they said, on the second page:
"Mr Marks (of counsel) indicated to the court on Wednesday, without prejudice and without instructions, that Mr Murbarak may have assets of about £15,000,000. On hearing this Mr Murbarak said it was a misleading figure. For our part we cannot give any indication, however broad-brush, of what our client is worth until Arthur Anderson has completed a world-wide audit.
Mr Murbarak is one of the beneficiaries of the IMK Family Trust… based in Jersey. The other potential beneficiaries are the children, Mrs Murbarak was recently removed as a potential beneficiary. For the purpose of these proceedings our client accepts that the assets of the trust will be treated as being his, subject as your client knows, to 45% of the business interests being held beneficially for Mr Murbarak's brother in law Mohamed Hussain Wani. The intention in creating the trust was to hold all of the business interests. Some of the businesses are now held within the umbrella (as appears below), others have not yet been transferred."
The letter proceeded to give details by way of schedule of the business affiliates. In very broad terms, Mr Murbarak is a trader in very expensive items of jewellery. He has companies that retail such very expensive jewellery items, at the sort of centres world-wide where very rich people congregate.
The case proceeded to a fully-contested hearing before Bodey J in December 1999. By then the husband was represented by Manches & Co, instructing Mr Dyer and Miss Florence Baron QC. On the third day, evidence emerged that demonstrated that the husband and Mr Wani, who at that stage was an intervener represented by counsel, had submitted fraudulent evidence, particularly as to the creation of the asserted partnership. Not surprisingly, since that was not only a betrayal of the judge but also a betrayal of the litigation team, Miss Baron, Mr Dyer and Manches & Co withdrew from the case. That, of course, left Mr Murbarak with a number of options. The one for which he elected was to walk out of the proceedings, together with Mr Wani.
The judge went on to do what he could to perform his statutory duty without any assistance from the husband. He made a number of very damaging findings against the husband, both as to his integrity and as to the quality of his disclosure. In the end, he ordered a lump sum of £8,875,000 which, amongst other things, was enforceable against company assets. However, that last provision was independently the subject of a stay until 12 June 2000. On the day that the stay was lifted, the trading company within the jurisdiction, Dianoor Jewels Ltd, was put into administration by Blackburn J in the Chancery Division. The wife swiftly applied for that order to be set aside, but Blackburn J refused her application. In consequence, both Dianoor Jewels Ltd and Dianoor International Ltd were joined in the proceedings. They sought the discharge of the paragraph of the order of 10 December 1999 that made the lump sum enforceable against company assets, and they succeeded at the hearing before Bodey J on 23 October 2000, the hearing which gives rise to the present appeal.
The husband, having perhaps regretted his boycott of the principal hearing, appeared in person early in the New Year, seeking time to pay the lump sum. On 19 January 2000 Bodey J said that he should pay £3,2000,000 by 31 May 2000 and the balance by 30 November 2000. The husband made an application for further time to Cazalet J on 12 June 2000, but that application was rejected. Meanwhile, the wife issued her first judgment summons on 9 June 2000, relying on the husband's default in paying the first instalment which had, of course, become due on 31 May 2000. That application was procedurally defective, since at its date of issue the stay on the enforcement against company assets was still in being. Accordingly, the wife issued the second judgment summons, which is the summons at the root of this appeal.
The summons was dated 15 June 2000. It is in conventional form. It recites in its first paragraph that the wife, as the judgment creditor, obtained an order for the payment of 8,875,000 on 10 December. The second recital refers to the default, and then there follows:
"You are hereby summoned to appear personally before [blank] on the 4th day of July 2000 at or after 10.30 o'clock, to be examined on oath touching the means you have or have had since the date of the said Order to pay the said sum in payment of which you have made default and also to show cause why you should not be committed to prison for such default."
The judgment summons was supported by what might be described as a conventional affidavit. The affidavit was sworn by a partner in the firm of Sears Tooth, then representing Mrs Murbarak. She simply deposed to the default and then deposed to the fact that there had been a modest collection, of approximately £161,000, since judgment, as a consequence of the forced sale of one of the husband's properties. That summons and affidavit in support were in compliance with the provisions of rule 7.4 of the Family Proceedings Rules 1991. Paragraphs (3) and (5) of that rule provide:
"(3) The application shall be made by filing a request in form M16 together with the affidavit required by rule 7.1(1), and except where the application is made to the registry or divorce county court in which the order was made, a copy of the order should be exhibited to the affidavit…
(5) Every judgment summons shall be in form M17 and shall be served on the debtor personally not less than 10 days before the hearing and at the time of service there shall be paid or tendered to the debtor a sum reasonably sufficient to cover his expenses in travelling to and from the court at which he is summoned to appear."
So the summons served on the husband was in form M17 and the affidavit in support complied with rule 7.1.
The first order on this summons was made by Cazalet J on 27 June 2000, when he sagaciously directed that it should stand over to be tried by Bodey J on three days commencing on 9 October 2000. He said that the wife should file evidence in support of her application by 11 July 2000. The wife's response took the form of a letter from Sears Tooth dated 11 July 2000, which simply says:
"I am writing to confirm that (given the volume of evidence already filed) my client does not propose to file any further Affidavit evidence in respect of the Judgment Summons proceedings."
Accordingly the matter returned before Cazalet J on 25 July 2000, when he heard submissions from junior counsel for the husband, pressing his client's entitlement, in view of the impending commencement of the Human Rights Act, to see a proper statement of the case that he was being asked to meet. Although, for somewhat obscure reasons, no order was drawn, it is accepted that Cazalet J ordered the wife to file a succinct statement of her case.
In compliance with that order, on 15 August 2000 the wife swore an affidavit, in which she told the reader little that was not already stated in the previous evidence. The nearest thing to a supplement is paragraph 5, the final paragraph, in which she said:
"In support of my judgment summons, I rely on the following:
(a) The evidence adduced at the trial of my claim for ancillary relief;
(b) The judgments given and findings made by Mr Justice Bodey on 10th December 1999 and 19th January 2000;
(c) The judgments given and findings made by Mr Justice Cazalet on 10th February 2000 and 12th June 2000;
(d) The judgment [of] the Court of Appeal on 4th April 2000;
(e) The affirmations made by the [husband] on 22nd December 1999, 1st February 2000, 23rd May 2000 and 8th June 2000."
I interpolate that the husband had sought permission to appeal the order of 10 December 1999. His application for permission was rejected by a two-judge constitution after an oral hearing on 4 April.
The husband's advisers were, not surprisingly, dissatisfied with the range of the wife's affidavit of 15 August, and accordingly initiated a correspondence with Sears Tooth. That commenced with a letter of 17 August 2000, which acknowledged receipt of the affidavit and made plain that its contents had been discussed with leading counsel....
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