Re N (Financial Provision: Dependency)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Munby |
| Judgment Date | 20 January 2009 |
| Neutral Citation | [2009] EWHC 11 (Fam) |
| Date | 20 January 2009 |
| Court | Family Division |
| Docket Number | Case No: FD03P02333 |
[2009] EWHC 11 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(In Public)
Royal Courts of Justice
Strand, London, WC2A 2LL
Before: Mr Justice Munby
Case No: FD03P02333
In the Matter of N (a Child) in the Matter of Section 15 of and Schedule 1 to the Children Act 1989
Mr Michael Cronshaw (instructed by Duncan Lewis & Co) for the Applicant G (the mother)
The Respondent A (the father) appeared in person assisted by his McKenzie friend Dr Michael Pelling
The Applicant G appeared in person assisted by her McKenzie friend Mr David Holden
Dr Michael Pelling (of Bance Commercial Law) for the Respondent A
On 12 November 2007
On 24 July 2008
Hearing dates: 12 November 2007, 24 July 2008
Mr Justice Munby:
These are proceedings brought by a mother pursuant to section 15 of and Schedule 1 to the Children Act 1989. The proceedings relate to N, who was born in March 200His parents were never married.
The forensic background
In order to understand exactly what jurisdictions I am being invited to exercise and the nature of the matters which are in controversy it is necessary to sketch out the somewhat unusual forensic background.
On 10 May 2005 District Judge Roberts, sitting in the Principal Registry of the Family Division, made an order which so far as material for present purposes was in the following terms:
“1 The Father shall pay to the Mother by 29 th July 2005 for the benefit of the Child N the sum of £20,000 absolutely.
2 The Father shall settle on the Mother by 27 th July 2005 for the benefit of the Child the sum of £220,000 which the Mother shall use to purchase a property to house herself and N until N reaches the age of 21 or completes tertiary education whichever is the later. The Father's interest in the property purchased shall be whatever percentage of the gross purchase price the sum of £220,000 represents.”
The mother, in a statement dated 23 November 2007, has indicated her intention to contribute to the purchase of the property by raising money on mortgage.
That order was made in the absence of the father in circumstances to which I will return in due course.
The father sought to appeal against the order. On 9 August 2005 Baron J stayed the District Judge's order until 2 September 200Thereafter the stay was informally extended by agreement between the parties. The appeal came on for hearing before Sumner J on 8 December 200By paragraph 3 of the order he made on 9 December 2005 Sumner J directed so far as material that:
“Upon condition that the Appellant Father pays the sum of £38,000 to the Respondent Mother's solicitors by 20 th January 2006 as security for the Respondent Mother's costs of [certain proceedings] … the Appellant [sic] appeal against order of District Judge Roberts … be allowed and the application remitted to be re-heard by District Judge Roberts”.
Paragraph 4 of Sumner J's order provided that
“If the father does not pay the £38,000 to the Respondent Mother's solicitors as provided for in paragraph 3 above, his appeal against the order of District Judge Roberts … shall be dismissed.”
Save that in December 2006 he gave the mother a cheque for £20,000, which he then stopped before it had cleared, the father did not pay the £38,000 referred to in Sumner J's order (though the father did eventually pay the mother's costs in December 2006) and has never paid either of the sums of £20,000 and £220,000 referred to in the order of District Judge Roberts.
The father did not seek to appeal against Sumner J's order, so the District Judge's order stood in full force and effect. It became immediately binding and enforceable against the father on 20 January 2006 when he failed to make the payment of £38,000 required by Sumner J's order.
On 7 April 2006 the mother applied for a charging order against two properties allegedly owned by the father, with a view to enforcing what she said was the “judgment debt” of £240,000 arising under the District Judge's order. In fact, as an affidavit sworn by the mother's solicitor on 11 May 2006 makes clear, although the father is indeed the registered proprietor of one of the properties, the registered proprietor of the other property is a company all the shares in which are held by the father. The submission made by the solicitor in that affidavit, without any further elaboration, was that “accordingly” this property is “beneficially owned” by the father. An interim charging order was made by District Judge Redgrave on 2 May 2008, but limited to the property of which the father is the registered proprietor.
The mother's application that the interim charging order be made final came before me on 15 May 2006. Although this was not a point taken by the father, I indicated my scepticism as to whether in relation to the sum of £220,000 there was, as a matter of law, any judgment debt or other liability capable of being enforced by way of a charging order. I adjourned the matter to enable the parties – the mother in particular – to consider the position.
The matter came back in front of me on 26 April 2007, when it became apparent that neither party had complied with the directions I had previously given. I re-timetabled the matter and listed it for further directions before me on 4 July 2007.
By the time the matter returned before me on 4 July 2007 three further applications had been made:
i) On 10 May 2007 the mother issued a summons seeking the appointment of a receiver of the father's properties by way of equitable execution.
ii) Also on 10 May 2007 the mother issued an application as she put it “to implement” paragraph 2 of the order made by District Judge Roberts on 10 May 2005, “pursuant to an implied liberty to apply”, by inserting after the words “The Father shall settle on the Mother by 27 th July 2005 for the benefit of the Child the sum of £220,000” the words “by paying the Mother the sum of £220,000”.
iii) On 15 June 2007 the father issued an application seeking that paragraphs 1 and 2 of the order made by District Judge Roberts on 10 May 2005 be “amended” and that a “new” paragraph 5 be inserted. I set out the proposed amendments, which were lengthy, in Appendix 1 below. The father's application asserted that the District Judge had jurisdiction to make the orders sought, without recourse to appeal, by virtue of (a) the 'slip rule' (CCR 1981 Order 15, Rule 5) or (b) what was described as “the court's inherent power to carry out its own meaning and intention or to clarify and give expression to that meaning and intention and make it plain” or (c) what was described as “its general power to give directions and orders as [to] the implementation of its own substantive orders” or (d) the court's power (CCR 1981 Order 37, Rule 2) to set aside and rehear an order made in the absence of a party. This application was listed for directions before District Judge Roberts on 6 September 2007 and for hearing before District Judge Roberts on 26 September 2007.
On 4 July 2007 I gave directions for the hearing of the mother's three applications before me on 12 November 2007. I also directed that there should be a directions hearing before me on 16 October 2007, inter alia for the purpose of giving directions in any appeal there might be from the order to be made by the District Judge on the father's application. At a further directions hearing on 16 July 2007 I ordered that all proceedings in the Principal Registry under case number FD03P02333, including the pending financial proceedings, be “transferred forthwith to the High Court”. As I understand it, it was because of this transfer to the High Court that when the father's application came before District Judge Roberts on 6 September 2007 for directions she was reluctant to exercise jurisdiction.
On 11 September 2007 the father wrote to the court indicating his preference that I rather than the District Judge deal with his application, and asserting that, because of the transfer to the High Court, I had jurisdiction to deal with the matter under RSC Order 35, Rule 2, with extension of time under RSC Order 3, Rule 5. The mother's solicitors objected to this in a letter to the court dated 21 September 2007, but District Judge Roberts vacated the hearing on 26 September 2007 shortly before it was due to commence.
On 12 October 2007 I gave final directions with a view to the hearing before me on 12 November 2007 of all four applications: the mother's three applications dated respectively 7 April 2006, 10 May 2007 and 10 May 2007, and the father's application dated 15 June 2007.
The hearing on 12 November 2007
The mother appeared represented, as previously, by Mr Michael Cronshaw of counsel. The father appeared in person assisted, as previously, by his McKenzie friend, Dr Michael Pelling. In the circumstances I permitted Dr Pelling to address me and to make legal and other submissions on behalf of the father.
The mother's case was set out in affidavits sworn by her on 7 April 2006, 10 May 2007 (two) and 29 June 2007 and, more particularly, in a case outline (exhibited to one of her affidavits sworn on 10 May 2007) and in Mr Cronshaw's written submissions dated 9 November 2007. The father's case was set out in witness statements by him dated 15 June 2007 and 19 October 2007 and, more particularly, in the helpfully detailed and very clear 'grounds' set out in his notice of application dated 15 June 2007. Amongst various other materials contained in the bundle were approved transcripts of the judgment delivered by District Judge Roberts on 10 May 2005 and by Sumner J on 9 December 2005: [2005] EWHC 3145 (Fam).
Because of listing pressures there was not time on 12 November 2007 to finish the argument. I adjourned on the basis that further written submissions would be lodged. Mr Cronshaw filed supplemental...
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