Tt v Cds (Rev 1)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moylan,Lord Justice Newey,Lord Justice Patten |
| Judgment Date | 18 September 2020 |
| Neutral Citation | [2020] EWCA Civ 1215 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B6/2020/0411 |
| Date | 18 September 2020 |
[2020] EWCA Civ 1215
Lord Justice Patten
Lord Justice Moylan
and
Lord Justice Newey
Case No: B6/2020/0411
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
MR JUSTICE COHEN
ZC16D00276 and ZC17C00215
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr P Chamberlayne QC (instructed by Payne Hicks Beach) for the Appellant
Husband Mr C Hale QC (instructed on a direct access basis assisted by Cara Nuttall of JMW Solicitors LLP) for the Respondent Wife
Hearing date: 9 th July 2020
Approved Judgment
The husband appeals from a final financial remedy order made by Cohen J on 5 February 2020 (the “February 2020 order”) following his judgment dated 20 December 2019 (“the December judgment”).
I gave permission to appeal on 6 May 2020 and at the same time stayed payment of the lump sum provision in the order by which the husband was required to pay the wife £225,000 by 1 June 2020. The February 2020 order also provided that, in default of payment, a specified property (called, in the judgment, the “Miami property”) was to be sold and the lump sum was to be paid to the wife from the proceeds of sale.
It was, therefore, surprising to be told the day before the hearing of this appeal that the husband had, or at least we were told that he had, transferred his beneficial interest in the Miami property to his mother. This was even more surprising in that the husband's mother has played a significant part in the financial remedy proceedings, as explained below.
It was said that the husband's interest had been transferred subject to the mortgage of c.$1.3 million (and other liabilities totalling $225,600), for the sum of $2.5 million, with “a further discount of $150,000 in lieu of the agent's fees which would otherwise have been paid”. The “balance due” of $824,400 (or c.£634,000) was said to have been paid “in part satisfaction of the £865,000 loans from relatives and family friends” (which I refer to further below).
I should make clear that the husband's solicitors were unaware of this development until the day before the hearing and immediately notified the wife's solicitors and the court.
Mr Hale QC questioned whether the husband's conduct meant that we should not hear his appeal. This was on the basis that the alleged transfer was in breach of the February 2020 order, and possibly also an earlier freezing order, and that it appeared clearly designed to seek to, at least, impede if not frustrate the wife's ability to enforce the lump sum order in the event of the appeal being dismissed. However, after taking instructions from his client, he invited us to continue to hear the appeal, which we did.
The sole ground of appeal was that the judge failed to assess or take into account the husband's needs and only considered the wife's needs. However, as set out below, the submissions made by Mr Chamberlayne QC covered a much wider canvas in support of the husband's case that the judgment was flawed and the award was unfair.
I am grateful to counsel for their submissions.
Background
The December judgment is reported as TT v CDS [2019] EWHC 3572 (Fam). This contains a detailed account of the background, so I propose to set out only a brief summary. In this judgment, I propose to adopt the same nomenclature as in the December judgment.
At the date of the hearing, the husband was aged 44 and the wife 45. They had met at university and started living together in 1995. They married in 2005 and separated, in what the judge described as “highly acrimonious circumstances”, in 2016. The judge treated “the relationship as one of 21 years with the quality of the relationship pre-marriage being indistinguishable from that post-marriage”
There are two children aged 13 and 9. The judge described them as having “suffered grievously as a result of the breakdown of the marriage and, in my judgement, by the behaviour of H towards them and their mother”. They both have “particular needs”. They “live with their mother and have very limited contact with their father”.
The parties built up a “successful business”, called “AM”, which provided the family “with a very good but not opulent standard of living”.
Proceedings
As described in the December judgment, at [9], the “litigation has been on a massive scale”. It had been, at [110], “the most destructive litigation”.
There had been proceedings under the 1980 Hague Child Abduction Convention; the husband's mother had brought proceedings in the Chancery Division the “gist of them being” that she was the beneficial owner of the “family business and residential properties”; and the financial remedy proceedings had taken 2/3 years to determine.
The proceedings under the 1980 Convention were determined by Cohen J in November 2017. He found that the husband had abducted the children from Miami to England. In his December judgment, the judge summarised those proceedings as follows:
“[10] … The background was that in August 2017 H had taken advantage of the fact that W had informed him that she would unavoidably be some hours late in collecting the children from H following an agreed period of summer holiday contact to H in America to remove them from Miami back to England. In my judgment I described his behaviour as ‘deplorable’ and that, contrary to his assertion, it was plain that the relocation of the children to Miami was consensual and that they were habitually resident in Florida.”
The proceedings commenced by the husband's mother (“Wanda”) were stayed and she was joined as a respondent to the financial remedy proceedings. Her claim was, as described by Cohen J, “decisively rejected” by Mostyn J after a four day hearing. Mostyn J determined that the husband and the wife were joint beneficial owners of AM and the disputed properties; that Wanda was the sole beneficial owner of a property called 45 AG; and that the husband and wife were jointly and severally liable for the mortgage on that property. The husband and Wanda were ordered to pay the wife's costs and were ordered to make a payment on account of £150,000 by 15 August 2018. By the December judgment, no payment had been made.
In August 2018, the wife obtained an injunction against the husband prohibiting him from interfering with AM.
On 4 December 2018, Mostyn J found that the husband was in contempt of court by, among other things, “failing to complete the repair works to the Miami property and vacate it” as he had undertaken or been required to do by the order of 7 June 2018.
In or about April 2019, Mostyn J made a freezing order against the husband and Wanda. The husband had “purported to execute a transfer of the title of the Miami property to his mother”. They were prohibited from “dealing with the property in any way”.
Both parties filed conduct statements setting out the matters which they asserted should be taken into account under section 25(2)(g) of the Matrimonial Causes Act 1973 (“the 1973 Act”).
In her statement dated 12 September 2019, the wife relied on the “numerous ways” in which the husband's conduct had impacted adversely on the “financial circumstances of the family”. These were summarised as follows:
“• Through his deliberate and wanton overspending and dissipation of assets, for his sole benefit, and at a level wholly unsustainable as against the assets we have and our needs moving forwards;
• Through destructive behaviour which has impacted negatively on the value of the assets;
• Through refusing to allow the rental (or rental at a commercial rate) of the property portfolio since the separation, resulting in repossession proceedings and other enforcement proceedings, together with increased costs, as well as depletion of other capital and income to save them;
• Through refusing to obtain any form of paid work in the 3 years since separation to assist in meeting the increased costs of a separated household and litigation;
• Through the impact of his behaviour on our children, increasing the expenses associated with meeting their needs;
• Through his sustained refusal to participate appropriately within these proceedings, bringing unmeritorious applications and consistently failing to comply with orders and deadlines, needlessly increasing costs by a vast amount; and
• By refusing to agree to the release of assets on an interim basis to allow us both to meet legal fees, forcing me to resort to expensive specialist litigation funding at significant costs that could have been avoided.”
Under the heading, “Litigation Conduct”, the wife set out, in some detail, the nature of her case that the amount which had been spent on costs was “attributable to [the husband's] behaviour”. Her costs in England totalled approximately £500,000. This did not include “the further costs of concluding these proceedings, the costs of concluding the associated Chancery proceedings with Wanda or the costs of other proceedings”. She had also incurred costs of £65,000 in respect of proceedings in the USA. She listed the proceedings which she invited the court to take into account which included the 1980 Convention proceedings and the claim brought by Wanda.
In his response, the husband acknowledged that the impact of the breakdown of the marriage had caused him “to stray from the path of reason and, occasionally, focus upon peripheral rather than fundamental aspects of the proceedings”. He accepted that “a number of the allegations made by [the wife] are not...
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