Purba v Purba
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STUART-SMITH,LORD JUSTICE THORPE,LORD JUSTICE PILL |
| Judgment Date | 01 July 1999 |
| Judgment citation (vLex) | [1999] EWCA Civ J0701-25 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | CCFMI 1999/0062/2 |
| Date | 01 July 1999 |
[1999] EWCA Civ J0701-25
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HORSHAM COUNTY COURT
(HER HONOUR JUDGE VINER QC)
Royal Courts of Justice
Strand, London WC2A 2LL
Lord Justice Stuart-Smith
Lord Justice Pill
Lord Justice Thorpe
CCFMI 1999/0062/2
MR CHRISTOPHER WAGSTAFFE (instructed by Messrs Donne Mileham & Haddock, Crawley, West Sussex) appeared on behalf of the Appellant.
MISS DELYTH M. EVANS (instructed by Messrs Leslie Oliver & Co, London W5 5SA) appeared on behalf of the Respondent.
I will ask Lord Justice Thorpe to give the first judgment.
Unfortunately cases in family proceedings in which a respondent husband breaches the duty of full and frank disclosure are all too common. This is a case in which the husband went far beyond that and made every effort to circumvent the court's discretionary adjudication by moving his assets out of immediate reach and by giving false evidence, both by his affidavits and subsequently orally, in an attempt to mislead the judge as to what was available for her consideration.
The circumstances in which this arose are as follows.
The parties are Sikh. The husband is 43 and the wife 41. They are both professional in background. They married on 25 September 1985 and almost from the outset the marriage was bedevilled by an injury to the lumbar disc area suffered by the wife, continuing almost without remission from July 1986 to the present date. She has had every sort of medical investigation and every sort of conventional treatment, including an operation for the fusion of two discs. She is currently awaiting a further operation which will probably be undertaken for further fusion. Sadly, the child that she conceived during the marriage was never born since she, with the support of her husband, concluded that she was not fit enough to carry and bear the child.
The parties moved to Switzerland in May 1988 and the husband has worked in that jurisdiction ever since. He is currently head of the oncology division of a manufacturing company, where he enjoys an appropriately substantial income. The separation occurred in August 1995 and on the day following separation the husband commenced his campaign to ensure that his liabilities to the wife post-separation should be reduced if not extinguished. He transferred roughly £40,000 on the day following separation to an account in the joint names of his brother and uncle.
It was he who issued a petition for dissolution in April 1996 and the wife, who herself issued proceedings in Switzerland, then accepted that his petition should be the vehicle for dissolution. In the month following petition he transferred a further sum of over £56,000 to his uncle. So by the time the wife issued a notice of application for ancillary relief it will be seen that the husband had transferred from his possession to the possession of members of his extended family sums approaching £100,000.
The marriage was dissolved by a decree absolute in October 1996 and immediately thereafter the court, which is the Horsham County Court, granted the wife an interim periodical payments order in the sum of £1,000 per month. The husband paid nothing under the order and appealed it. His appeal was dismissed but he continued to pay nothing under the order. The case came for hearing before Her Honour Judge Viner QC sitting at Brighton. The case was unusually listed before a circuit judge because of allegations of conduct. It seems that the primary reason for the listing was not the husband's financial misconduct, which at that stage was not fully revealed or perceived, but because the husband raised against the wife the assertion that she had been manufacturing or exaggerating her health problems to burden him financially for the future.
The judge heard two days of oral evidence. She heard submissions from counsel on the third day and delivered a full and obviously carefully prepared judgment on the fourth day. The order that reflected her judgment provides as follows. First of all, she set aside the dispositions made by the husband, namely the four transfers of cash totalling £95,506.62 to his uncle. Secondly, she ordered that the husband pay periodical payments at the rate of £14,400 a year net on a conventional joint lives basis. Thirdly, she ordered that the arrears of periodical payments should be paid immediately and in full in the sum of £21,000 notwithstanding the fact that the arrears were more than 12 months stale at the date of that order. There were nine months of arrears behind the conventional 12 months at which the court draws the line. Fourthly, the judge ordered a lump sum of £82,500. Finally, she condemned the husband in the wife's costs. The wife was a legally-aided litigant and the judge certified for the purposes of the regulations that the lump sum was ordered to enable the wife to purchase a home for herself.
It seems that there was not much enquiry as to the respective costs position of the parties at that trial. There was a suggestion that the husband's costs were in the order of £20,000 and certainly the wife's legal aid costs were in that region. But there was no enquiry as to the extent to which the husband had already discharged his costs liability in respect of the trial or to what extent his solicitors had extended credit.
The trial judge refused the husband's application for permission to appeal and when renewed to this court his application was initially refused on paper on 1 December 1998 by Lord Justice Ward. The oral renewal came before this court on 15 January when leave was granted. The basis of that grant was helpfully explained in a relatively full judgment delivered by Mr Justice Wilson. He identified three points which he thought were realistically arguable and in respect of which he saw realistic prospects of success at a full appeal.
The resulting notice of appeal has raised a considerable number of points not all of which seem to me to merit reference in this judgment. The argument that the judge was wrong to have made orders under section 37 setting aside dispositions when there had been no notice of application in Form 11, no affidavit in support and no service upon the transferees is technically well-founded but, as Mr Justice Wilson commented in his judgment, is one that lacks underlying merit. Technically, it seems to me that it was quite unnecessary for the judge in the court of trial to have gone to that length in order to arrive at reality and to do justice. These were not dispositions of the character that required that level of attack. They were after all only transfers of cash from one bank account to another. The fact that the receiving bank account was not in the name of the husband but in the name of one or other of his close relations does not in any way inhibit the court from looking to the real question —whose money is it? It does not cease to be the husband's money simply because it is moved into a different account. The recipient and account holder is a bare trustee. The ownership of the money, the cash, remains constantly with the husband and it was, in my opinion, open to the judge to deal with that cash on the basis that it remained throughout the husband's, without going through the formality of setting...
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