Richard Michael Edmund Wilmot v Viki Natasha Maughan
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moylan,Lord Justice Sales,Lady Justice Black |
| Judgment Date | 27 October 2017 |
| Neutral Citation | [2017] EWCA Civ 1668 |
| Date | 27 October 2017 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B6/2016/0547 |
[2017] EWCA Civ 1668
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
MR JUSTICE MOSTYN
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Black
Lord Justice Sales
and
Lord Justice Moylan
Case No: B6/2016/0547
Nicholas Bowen QC (by Direct Access) for the Appellant
Jonathan Swift and Joseph Switalski (instructed by Thomson Snell and Passmore LLP) for the Respondent
Hearing dates: 25 th & 26 th July 2017
Judgment Approved
Introduction
I propose, for convenience, to call the parties the husband and the wife although they were divorced many years ago.
The husband appeals from Mostyn J's order of 13 th January 2016 by which he dismissed the husband's deemed application to set aside all orders made in the proceedings since 2010. The substantive proceedings are financial remedy proceedings in which the wife has made a number of enforcement applications.
The husband was never required to make a formal application. The issue was merely recorded in the judge's order of 29 th September 2015 in the following terms:
"The Respondent (husband), being subject to an extended civil restraint order, do have permission to apply to argue that service of orders and documents on him by email were invalid and that all orders made since 2010 … be set aside on the basis that service … was defective and failed to comply with the mandatory requirements of the Hague Convention on the Service of Judicial and Extrajudicial documents 1965".
The husband was also not required to file any statement in support of this application other than one dealing with his habitual residence.
The result of the procedure which was adopted is that the grounds on which the husband relied have had to be determined from his submissions. This has provided scope for a lack of precision and has had the consequence that there has been some variation in the way in which his case has been formulated. At its highest, as set out in the judgment below, the husband's case has been that the orders providing for email service were null and void, having been made without jurisdiction because of the terms of the 1965 Convention. As alternatively formulated, at least during the hearing of this appeal, the orders were not void but were defective and should be set aside largely, it would seem, because the potential impact of the 1965 Convention was not, or does not appear to have been, expressly addressed at the time when the email service orders were made.
It is relevant to note that the husband did not and does not challenge the court's substantive jurisdiction. The sole focus of his case has been on the service of process. Further, it has been on the service of applications (and other documents) made in the course of proceedings and not of initiating process.
I have considerable sympathy for the judge. The issue as to service was raised in the course of a hearing dealing with a number of other applications. He then sought to deal with it in an expeditious manner. He listed the case for one day, no doubt because of pressure of other work, and, if the experience of this court provides any guide, he was then confronted with a diffuse range of arguments. However, although informality in procedure can, of course, be appropriate, in my view it was not in this case. This was because of the nature of the husband's application, which was said by him to raise an issue of fundamental importance to the validity of the proceedings and which, if successful, would result in the court setting aside orders up to five years after they had been made.
Further, as Mr Bowen QC frankly accepted during the course of the appeal, the judge was not addressed on the jurisdiction he was being asked to exercise, either as to its scope or as to any principles applicable to its exercise. From exchanges with Mr Bowen during the course of the hearing, it is clear that this omission was apparent to the judge as he referred to the husband's "belated attack" in contrast to the authorities relied on by Mr Bowen in which there had been a "timely challenge" to the decision. As a result, he requested Mr Bowen to deal with this point in further written submissions which he gave the parties the opportunity to provide after the hearing.
Despite this request, Mr Bowen did not engage with this point in his supplementary written submissions. The judge was not, therefore, referred to any authorities on the circumstances in which a court will permit a party to apply to vary and set aside an order, such as: Tibbles v SIG Plc (t/a Asphaltic Roofing Supplies) [2014] 1 WLR 795 (" Tibbles").
The judge, nevertheless, dealt with the power which he considered he was being asked to exercise. In his view it was a discretionary power, under the Family Procedure Rules 2010 ("the FPR") r.4.1(6) and section 31F(6) of the Matrimonial and Family Proceedings Act 1984 ("the 1984 Act"). Further, it seems to me that, by the way he addressed the exercise of his discretion, the judge had the principles identified in Tibbles in mind. He referred, for example, to the need for the party to have acted promptly in making the application. For reasons set out in his judgment, the judge declined to exercise his discretion in the husband's favour and dismissed the application.
I have spent some time dealing with this point at the start of this judgment because, if the judge's decision not to exercise such power as he might have had to vary or discharge the orders has not been successfully challenged in this appeal, the scope of the appeal would be very much narrower. In particular, there would be no need to consider in detail the points raised about service and the 1965 Convention.
Background
The parties were married in 1991. They separated in the late 1990s. Although the Decree Absolute was made on 20 th September 2001, the financial remedy proceedings were not finally resolved until a consent order dated 27 th June 2007.
In or about October 2011, the wife started enforcement proceedings in respect of the husband's obligations under the 2007 order. Those proceedings have been continuing since then.
It is the husband's case that he has been resident in, and worked as an airline pilot out of, Istanbul since 2011, following his retirement from British Airways in 2010.
The husband was given permission to appeal by King LJ but, by her order dated 29th July 2016, the husband cannot seek to impugn any orders made before 1st July 2013.
Procedural History
Before dealing with the orders within the potential scope of this appeal, it is relevant to start the history in 2012.
On 24 th January 2012 Ryder J (as he then was) ordered the husband, who attended the hearing in person, to provide a PO Box number and address for service.
In Ryder J's order of 29 th May 2012 it is recorded that the husband informed the court "that he will obtain a post office box number in Somerset". The husband had applied to set aside or vary all orders made in the family proceedings on the basis, it appears, of fraud, misrepresentation or material non-disclosure. His application was dismissed by Ryder J who was satisfied that there was not even a prima facie case demonstrated by the husband.
In Ryder J's next order, of 15 th November 2012, it is recorded that the husband had failed to provide a PO Box number for service. It would appear that, in response to the husband's failure to comply with this provision, an order for alternative service was made. It was provided that the husband would be deemed to have been served personally with any document or order if they were sent by email to either of two specified email addresses.
The provision in respect of email service was repeated in the order of 27 th February 2013 made at a hearing attended by the husband in person. In his judgment, Ryder J states that the husband is resident in the Isle of Man.
On 25 th July 2013 Lloyd LJ refused the husband's applications for permission to appeal from the orders of 27 th June 2007, 29 th May 2012 and 27 th February 2013.
Turning now to the orders potentially within the scope of this appeal.
The first order in the husband's sights is that made by Bodey J on 6 th December 2013. This was an order, made without notice to the husband, freezing his assets and, in the usual way, requiring him to provide information about them. There was an express provision in the order permitting the wife to serve the order (and other documents) on the husband by email, and also by first class post to an address of his in the Isle of Man. As this was a without notice order, the husband's complaint could only be in relation to service upon him subsequently.
On the return date of the freezing injunction, 12 th December 2013, the husband was represented by counsel. Bodey J adjourned the matter for fuller argument on 19 th December 2013, because there was insufficient court time to do justice to the issues arising from the parties' skeleton arguments. Meanwhile, he continued the freezing order with some modifications. He expressly permitted service of the order, and any related application for a civil restraint order, on the husband by email and also by two other means, namely by post to the Isle of Man address and on Osbornes solicitors (who acted for the husband for a period at around this date).
On 19 th December 2013, the matter came before Mostyn J, the husband being represented by the same counsel as the week before. On that day, the judge continued the freezing order with further modifications. The order includes the following in the preamble:
"AND UPON the Court declaring that the Applicant [wife] is entitled to enforce the arrears due under the Order of 27 th June...
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