Shelley Mann v David Anthony Mann

JurisdictionEngland & Wales
CourtFamily Division
JudgeMrs Justice Roberts
Judgment Date18 Jan 2016
Neutral Citation[2016] EWHC 314 (Fam)
Docket NumberCase No: FD98D03022

[2016] EWHC 314 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mrs Justice Roberts

Case No: FD98D03022

Between:
Shelley Mann
Applicant
and
David Anthony Mann
Respondent

Mr Rex Howling QC (instructed by the Applicant on a direct access basis) and

The Respondent acting in person

Hearing dates: 5th, 6th, 7th and 8th May 2015, 27 th August 2015, and the 29 th and 30 th October 2015

Mrs Justice Roberts Mrs Justice Roberts

A. Introduction

1

Before me is an application made by a former wife for general enforcement of an order made by Charles J in May 2005. Her application is made pursuant to FPR 2010 r.33.3(2)(b) which provides, in terms, that an applicant may apply 'for such method as the court may consider appropriate'.

2

This case concerns two former spouses who have now been locked together in litigation for a period of almost 17 years, more than twice the effective length of their marriage. Throughout its history and on various occasions, the litigation has travelled from hearings in front of High Court judges to the Court of Appeal and back. The parties' two children were respectively 6 and 7 years old when the litigation started. They are now young adults aged 21 and 22 years old. That the proceedings have taken a very significant toll on each of the parties has become obvious to me as I have heard this case. The husband's ill health is borne out by the medical evidence he has put before the court. He is currently not a well man and is under the care of several different doctors. Whilst the wife remained stoically composed for most of the time, her exhaustion and sense of complete frustration (if not desperation) were all too obvious to me. For the purposes of the hearings before me, she has been represented by Mr Rex Howling QC whom she instructs on a direct access basis. For all other purposes, she is a litigant in person and has been since May 2014 when she was no longer able to afford the services of a solicitor. The husband, too, is a litigant in person. Despite the fact that I granted him a short adjournment at the start of the current enforcement proceedings to secure legal representation, he has been unable to do so.

3

In circumstances which I shall explain, Mr Howling QC, on behalf of the wife, seeks a suspended order for the husband's committal to prison in respect of what he claims is his wilful refusal to pay to her a sum of just under £2 million which she says she is owed. The husband denies that this sum is due (or anything approaching that sum) but tells me that, even if it were, he does not have the means to pay. He points to the fact that, whilst not strictly in accordance with the terms of orders which have been made in this case, he has nevertheless paid to her over the years of this litigation sums totalling almost £1.5 million. Those sums have been paid, in part, as a result of agreements made between the parties during the currency of the litigation. They were agreements made in the context of an expectation that all issues would be dealt with through a process of mediation. On these occasions, the wife has been prepared to suspend (but not abandon) her strict legal entitlement whilst settlement of all remaining issues was explored. The husband contends that he has, at times, made financial provision for the wife over and above the terms to which he has agreed. He seeks to persuade me that there are no further sums due to the wife. If he remains liable to meet any balance due, he joins with her in asking me to determine what sums remain outstanding. That computation issue is the subject of case management directions made by Mostyn J in 2014. As part of her claim, W seeks payment of a substantial sum in respect of interest on the judgment debt due to her. I have been asked to determine a point of law which has arisen in relation to the extent of her claim in respect of interest.

4

The position has been complicated by the fact that, in 2005 and in the husband's absence, Charles J made a number of findings of fact about his financial resources. Those findings have remained undisturbed for over ten years. Although the husband has consistently said they were wrong, he has never pursued an appeal against the findings. Mr Howling, on behalf of the wife, relies on those findings as evidence both of the husband's bad faith and as pointing to the likelihood that he has access to financial resources which will enable him to meet any sums which are found to be due to the wife at the conclusion of the present proceedings. Several of Charles J's findings related to an offshore trust called the Hilbery Foundation through which it was claimed the husband had an interest in a valuable property in Eaton Place, London SW1. It has been part of W's case in these enforcement proceedings that he has never provided a satisfactory explanation in relation to his interest in the Hilbery Foundation or the company through which the London apartment was owned. In these circumstances, one of the functions of the oral examination of the husband in these enforcement proceedings has been to explore whether or not he does have any interest in that property since all he presents in his Form E is a significant raft of debt without any corresponding assets.

5

During the course of the proceedings before me, the husband made it clear that he wished to give evidence about these matters and, further, that he wished to call other witnesses who would be able to explain the circumstances in which the London apartment was sold and the Foundation wound up. Despite my warning that he was not obliged to give any evidence and could properly rely upon the privilege against self-incrimination, he waived that right and, over the course of several non-consecutive days, I have now heard evidence from the husband and three witnesses called on his behalf. I shall come to consider that evidence and my findings in relation to it in due course. It goes to the second limb of this application which is the husband's ability at various stages of these proceedings to pay the sums which are found to be due to the wife. My first task is to establish what sum or sums are due. Before embarking on that exercise, I need to refer to the background.

6

On 5 March 2014, Mostyn J delivered a judgment in this case in respect of one of the mediation agreements. It is reported as Mann v Mann [2014] EWHC 537 (Fam), [2014] 2 FLR 928. In that judgment he set out at some length the relevant facts, including the precise terms of the mediation agreement with which he was then dealing. In order to give my judgment internal coherence, I am proposing to set out a short exposition of the background but that judgment of Mostyn J stands as an invaluable further reference point.

B. Background

7

The wife is 48 years old. H is 50. They married in 1988 in South Africa which was then the husband's home and that of his family. Their two daughters were born in 1993 and 1994. They separated in 1998 and their marriage was dissolved by decree absolute in 1999. In that same year, the wife's financial claims were settled and reflected in a consent order dated 8 April 1999. Under its terms, she retained the former matrimonial home in Hampstead on the basis that the husband would discharge the mortgage interest payments during the minority of their two children. At that point, the obligation to redeem the mortgage fell to the wife. In addition to the mortgage interest, the husband agreed to pay periodical payments to the wife at the rate of £24,000 per annum. Child maintenance and school fees were also provided for.

8

In March 2004, the husband was adjudged bankrupt as a result of a debt which he owed to a bank in the sum of about £50,000. By that stage he had already issued an application to reduce the periodical payments he was making to the wife. She issued her own application for a full capitalisation of those maintenance payments. Those applications were listed before Charles J in May 2005.

The hearing before Charles J in May 2005

9

Both parties were represented at that hearing. In the material before me was a full transcript of the judgment delivered on 11 May 2005. It is reported at [2005] EWHC 701 (Fam). Soon after the final hearing commenced, the husband's solicitors made an application to come off the record. The husband himself did not attend the hearing to give evidence. He tells me that he was advised by his counsel and solicitor to absent himself from the proceedings because much of the forensic enquiry into his means was focused upon his family's financial affairs and the extent to which, as a family member, he had access to offshore funds principally through the Hilbery Foundation, a Stiftung based in Vaduz, Liechtenstein. In his opening note for that hearing, the husband's counsel had asserted that the ownership and control of the Stiftung and the financial benefits that the husband had from it, and would in future derive from it, were the main issues in the case. The husband was willing to give evidence about these matters "in the sanctity of the witness box". Whilst in his written evidence he had provided some explanation as to the manner in which the Stiftung was linked to other entities, the husband had been unwilling to say more because, as he told me, he was concerned about the tax and other implications for his family (and, in particular, his father) who had set up the structure in order to enable the family to avoid the consequences of the strict South African exchange controls then in force. There was very little before the court in terms of underlying documentation because the trustees or managers of the Stiftung had been unwilling to disclose it.

10

Charles J proceeded to hear the case in the husband's absence. He was aware of the husband's bankruptcy which was due to come to an end shortly...

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  • Michael Woodroffe v Pamela Woodroffe (Nee Collins)
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    • Court of Appeal
    • 12 April 2021
    ...pay? Only if the answer to this question is Yes can any of the arrears be enforced. 30 Finally, I would refer to Mann v Mann (No 2) [2016] EWHC 314 (Fam), a case in which Roberts J described her first task as being to establish what sum or sums were due. The judge used other phrases beyond......

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