Norman v Norman
| Jurisdiction | England & Wales |
| Judge | Lady Justice Gloster,Lord Justice Lewison,Lady Justice King |
| Judgment Date | 08 February 2017 |
| Neutral Citation | [2017] EWCA Civ 49 |
| Docket Number | Case No: B6/2015/2451(B) |
| Court | Court of Appeal (Civil Division) |
| Date | 08 February 2017 |
[2017] EWCA Civ 49
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT GUILDFORD
Her Honour Judge Raeside
MK03D00837
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Gloster
Vice President of the Court Of Appeal, Civil Division
Lord Justice Lewison
and
Lady Justice King
Case No: B6/2015/2451(B)
Matthew Waszak Esq (instructed acting pro bono, instructed by the Bar Pro Bono Unit) for the Appellant
Michael Glaser Esq and Phillip Blatchly Esq (instructed by Bishop & Sewell LLP) for the Respondent
Adam Wolanski Esq (instructed directly) for the Times Newspapers Limited, Associated Newspapers Limited, Telegraph Newspapers Limited, News Group Newspapers Limited and Sky News
Hearing date: 19 January 2017
Approved Judgment
Introduction
This case raises important issues relating to the making of anonymity orders in the Court of Appeal.
On 19 January 2017 the applicant, Tina Norman (whom I shall, for the sake of convenience, refer to as "the wife" or "Mrs Norman", although she and the respondent, her former husband, Robert Norman ("the husband" or "Mr Norman"), have been divorced for many years) made an application for the continuation of a previous anonymity order made by the Court of Appeal 1 on 30 June 2011 in proceedings B4/2010/1449, or, alternatively, for the imposition of a fresh anonymity order. The anonymity order was sought in relation to financial relief proceedings before the court on 19 January 2017, namely the wife's application for permission to appeal against an order made by HHJ Raeside on 13 March 2015, and, if permission were granted, the appeal itself.
The court heard argument in relation to the anonymity issue from Mr Matthew Waszak on behalf of the wife, Mr Michael Glaser and Mr Phillip Blatchly on behalf of the husband (who adopted a neutral position in relation to the issue) and Mr Adam Wolanski on behalf of Times Newspapers Limited, Associated Newspapers Limited, Telegraph Newspapers Limited, News Group Newspapers Limited, Sky News ("the media parties") who opposed the application. The court dismissed the wife's application for anonymity and consequently, with effect from 19 January 2017, discharged the anonymity order made by the Court of Appeal on 30 June 2011, as well as two further orders made by this court (i) on 31 January 2014 in proceedings B/6/2013/2214 2 and (ii) on 3 August 2016 in these proceedings 3. The court indicated that it would provide its reasons for its order in due course.
On the same date this court also dismissed the wife's application for permission to appeal, again indicating that it would provide its reasons in due course. This judgment sets out my reasons for dismissing the wife's application for an anonymity order. There will be a separate judgment setting out the court's reasons for dismissing the application for permission to appeal.
Background facts
It is necessary to summarise the background facts so as to explain the context in which the application for anonymity was made. Shortly stated, they are as follows.
The husband is aged forty-nine and the wife is aged nearly fifty-three. They married in August 1993 and, according to the husband, they separated in 1998, but the precise date of separation is contentious. The husband petitioned for divorce in June 2003 and both decree nisi and absolute were pronounced in January 2005. There are two children of the marriage, both now adults: a son aged twenty-two and a daughter aged nineteen.
Towards the end of the marriage, the husband purchased a property in his own name with the assistance of a large mortgage. In 2002, the wife purchased a property in her own name with the entire net sale proceeds of the former matrimonial home.
Both prior to and during the marriage, the wife worked in IT. She ceased working sometime in late 2004/early 2005 when she was made redundant.
The husband had, in the past, commanded a high salary in employment in various institutions in the City. He had, however, ceased work in September 2008 citing depression and stress consequent upon the continued litigation between these former spouses over money and arrangements for the children. In a judgment delivered by DJ Raeside (as she then was) in November 2009, she accepted that the husband was unable to work due to depression and that, at that time, he had a minimal earning capacity. However, the judge contemplated that he might choose to work in the near future and that it was likely that he would return to well-paid employment when the litigation was completed.
So far as financial matters were concerned, a consent order was made on 11 January 2005 ("the 2005 consent order") by DJ Levey following an agreement between the parties in proceedings in which both parties were legally represented. Given the fact that both parties owned properties (the wife's subject to a small mortgage and the husband's subject to a large mortgage), the critical issue to be dealt with was the question of periodic payments. The 2005 consent order included a provision for periodic payments in the wife's favour at the rate of £1,000 per month for a fixed five-year term until 24 December 2009 and a small capital payment of £6000 by the husband to the wife to meet her costs. At the time the husband was earning in the region of £125,000 gross per annum and was paying maintenance for the children via the Child Support Agency. The order also provided, that save as aforesaid, the wife's claims against the husband for property adjustment, lump sums or any orders in relation to the husband's pension should stand dismissed.
There was no bar preventing an application being made by the wife to extend the term of the periodic payments order. However, in a recital to the 2005 consent order, it was stated that:
"it is both parties' intention that the wife will become financially independent from the husband within five years of this order."
By an application dated 29 February 2008, the wife sought to extend the term of the periodic payments order (to the joint lives of the parties) and to increase the amount of the payments to £1,800 per month. Six months later the husband left his then employment in the City citing depression. Subsequently he too applied to vary the periodic payments order. Following delay in the progression of the applications, they came on for hearing on 14 to 16 September 2009 before DJ Raeside. She handed down her draft judgment on 15 October 2009 but the order encapsulating its terms was not drawn up until 24 November 2009 ("the November 2009 order"). Her decision was to extend the term of the periodic payments order for the wife until 1 April 2012, at the same rate as before. She also imposed a bar pursuant to s28(1A) of the Matrimonial Causes Act 1973 to the wife applying for any further extension of the term of the periodic payments order. The November 2009 order also provided for the husband to capitalise the periodic payments order at any time by the payment of a lump sum. She made certain findings in relation to the reluctance of the wife to go back to work and in relation to the genuine inability of the husband to do so, due to his depression, until the conclusion of the litigation with his wife.
Almost immediately the wife issued an application to appeal the November 2009 order. The appeal was heard by HHJ Rylance on 14 May 2010. He allowed the wife's appeal and extended the term for periodic payments to 31 August 2015, following which date spousal periodic payments would continue on a nominal basis for the parties' joint lives.
In June 2010 the husband applied to appeal HHJ's order to the Court of Appeal. He was successful and on 30 June 2011 the Court of Appeal 4 made an order setting aside HHJ Rylance's order and re-instating DJ Raeside's original November 2009 order. Although the hearing was in public, as is normal with cases in this court, as a result of an application by the wife, the order included a provision in the following terms:
"no one shall publish or reveal the name or address of the parties who are the subject of these proceedings or publish or reveal any particular or particulars or other information which would be likely [sic] lead to the identification of the said parties".
There is no judgment of the court explaining the reasons for this order nor were the media parties (or any other members of the press or media) given prior notice of the application for the anonymity direction, or subsequent notice of the order which had been made.
Following a failed application to the Supreme Court for permission to appeal, in November 2011 the wife issued a second application to set aside the November 2009 order on the basis of the husband's alleged material non-disclosure. The basis of the wife's case was that the husband had failed to disclose his intention to resume work to HHJ Rylance when he heard the appeal against the November 2009 order, or to the Court of Appeal, with the result that both courts had been deceived.
By that time DJ Raeside had become HHJ Raeside and the wife's application was listed before that judge on 11 January 2013 for directions. On that occasion the court directed the husband to provide disclosure in respect of all work carried out for clients by him between January 2010 and June 2011 and any sums paid or received by him as a result of such work, together with all invoices, written terms of engagement and other material documents. The husband did not accept the court's jurisdiction to make such an order for disclosure, but did not appeal the direction and made some partial disclosure in purported compliance with it.
The application to set aside itself was heard for half a day before HHJ Raeside in April 2013. No oral...
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