Svetlana Vladimirovina Mohan v Anu Mohan
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thorpe,Lady Justice Rafferty,Lord Justice Kitchin |
| Judgment Date | 22 May 2013 |
| Neutral Citation | [2013] EWCA Civ 586 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B6/12/1869, 2012/1869 |
| Date | 22 May 2013 |
[2013] EWCA Civ 586
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
THE HIGH COURT OF JUSTICE
FAMILY DIVISION
His Honour Judge Cryan
FD07D1258
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Thorpe
Lady Justice Rafferty
and
Lord Justice Kitchin
Case No: B6/12/1869, 2012/1869
Richard Harrison QC and Kate Ozwell (instructed by Hughes Fowler Carruthers Ltd) for the Appellant
Anu M the Respondent acting in person
Jonathan Glasson QC (instructed by Treasury Solicitor) as Advocate to the Court.
Hearing dates: Wednesday 17th April
Approved Judgment
Introduction
This is an appeal from the order of His Honour Judge Cryan of 27 th July 2012 dismissing the wife's endeavour to rely on documents and statements made by the husband during the course of complex proceedings to enforce a financial remedy order in the wife's favour.
The wife was represented by Mr Richard Harrison QC at that hearing, as in this court. The husband appeared in person below.
Accordingly, Mr Harrison very properly drew the judge's attention to the decision of this court in the case of R v K [2010] QB 343 which Mr Harrison rightly deemed to be against him. That scrupulous conduct cost his client the day, since the judge rejected all Mr Harrison's endeavours to distinguish his application from the cited authority.
So the key question in this appeal is whether Judge Cryan was right to exclude the evidence upon the ground that it had been given under compulsion. Under our law the respondent to a judgment summons cannot be compelled to give evidence and the same principle is clearly established by the decisions of the Strasbourg Court upholding the Article 6 right to silence of the accused in criminal proceedings.
A full understanding of the issues in the court below and also in this court requires a detailed summary of complex and long running proceedings. Whilst it is easy to be wise with hindsight there are undoubtedly lessons to be learnt from the lamentable history of the wife's endeavours to recover her due under compromises, and ultimately, orders of the court.
Litigation History
The wife petitioned for divorce on 13 th March 2007 but a decree nisi was not pronounced on the undefended petition until 17 April 2010.
The wife's financial claims were settled by a deed under which she was to receive £5.7 million payable by 6 May 2008. This was the first contract that the husband breached.
Her application to show cause was partially compromised by an agreement that she should receive 31% of the gross proceeds of sale of the former matrimonial home. On that basis her show cause notice was adjourned generally by the order of 27th October 2008.
In the event the property was sold for £6.2 million giving the wife an immediate entitlement of £1, 906, 500.
That development led to a further agreement under which the wife accepted the 31% in full and final satisfaction and the husband agreed to pay £1, 239, 433 immediately leaving a balance of £667, 066, 65.
That was the high point of the wife's pursuit. She recovered approximately two thirds of her due but was left with the risks of pursuing the balance.
The end result was an order of District Judge Walker of the 25 th October 2010 which provided that the husband must pay £100,000 within 28 days and the balance on or before 7 th January 2011.
The husband was swiftly in breach. He paid nothing on or before the 22 nd November although he did pay £50,000 on the 15th December.
The enforcement trail commences with the wife's application for oral examination issued on the 28 th March 2011 under the Family Proceedings Rules 1991.
Then on the 21 st April 2011 the wife issued the general application for enforcement seeking £729, 327.94 being the principle sum less the £50,000 on account but augmented by interest accruing on the remainder.
The general application for enforcement triggers an examination of the respondent's means. Accordingly, on the 22 nd June 2010 District judge Roberts ordered the husband to serve by 31 st August a fully completed Form E and a narrative sworn statement providing all the information and exhibiting all the documents set out in the schedule to the order. That was in preparation for an oral examination fixed for 29 September 2011.
The husband served the Form E before me and the sworn statement on 25 August 2011. That evidence seems to have led the wife to change course.
On the 23 rd September the wife requested the issue of a judgment summons under the Debtors Act 1889. The judgment summons was issued on the 27 th September for return on the 19 th October.
On the same day the wife issued a committal application asserting that the evidence filed on the 25 th August put the husband in breach of the order of District Judge Roberts. This application was issued on the wrong form, an error corrected by the issue of a further application on the 5 th October.
At this point the judgment summons eclipses the application for general enforcement taking the slot on 29 th September that had been allocated for the oral examination under the general enforcement application. The resulting order issued both the judgment summons and the committal application for hearing in November.
Paragraph five of the order was in these terms "the husband has permission to file and serve a statement with supporting documents in reply to the affidavit of (the wife's solicitor).
I pass over various listings and adjournments that intervene before the hearing before Judge Cryan. The effect of Judge Cryan's order was to kill the judgment summons and to adjourn the committal application pending compliance with comprehensive and detailed orders for further disclosure made against the husband.
I directed the wife's permission application to an oral hearing on notice with appeal to follow. That hearing was listed before this constitution with appeal to follow. On the 31 st January 2013, Mr Harrison appeared leading Miss Ozwell but the husband was neither present nor represented. Given the difficulties within the appeal we had little option but to adjourn for the appointment of an advocate to the court.
In preparing for the adjourned hearing we had the great advantage of written submissions of 15 th April from Mr Jonathan Glasson QC. I would like to express my gratitude to him for the great assistance he has given us in those written submissions and in his oral submissions at the hearing.
The appeal
In his skeleton Mr Glasson drew a distinction between the documents produced pursuant to the order of District Judge Roberts and the respondent's answers required by the same order. Mr Glasson's opinion was that Judge Cryan had erred in excluding the documents but, on a fine balance, had been correct in excluding the statements.
The order of Judge Cryan had in paragraph one excluded from evidence in support of the judgment summons all "information or documentation disclosed or produced by the husband pursuant to the order made by District Judge Roberts on 22 June 2011".
By his principal skeleton argument Mr Harrison states that his final submission to Judge Cryan had been that even if the answers given by the husband should be excluded the documents should not.
Since Judge Cryan's judgment does not record or rule on this submission I must doubt that it was advanced with any emphasis. I infer that also from the fact that after judgment was given Mr Harrison did not protest that the judge had overlooked an important submission.
The consequence of Mr Glasson's contribution is that during oral argument we proceeded on the basis that the appeal as to documents succeeded. We had to decide the issue between Mr Harrison and Mr Glasson on statements pursuant to the order of District Judge Roberts and practical questions as to drawing the line between exclusion and admission where, for instance, the husband had annotated bank statements with explanations of credits and debits.
The Act, the Rules and the cases
S. 5 of the Debtors Act 1869 provides that:-
"Subject to the provisions hereinafter mentioned, and to the prescribed rules, any court may commit to prison for a term not exceeding six weeks, or until payment of the sum due, any person who makes default in payment of any debt or instalment of any debt due from him in pursuance of any order or judgment of that or any other competent court.
……
(2) That such jurisdiction shall only be exercised where it is proved to the satisfaction of the court that the person making default either has or has had since the date of the order or judgment the means to pay the sum in respect of which he has made default, and has refused or neglected, or refuses or neglects, to pay the same.
Proof of the means of the person making default may be given in such manner as the court thinks just; and for the purposes of such proof the debtor and any witnesses may be summoned and examined on oath; according to the prescribed rules."
The scope of s.5 was curtailed by s.11 of the Administration of Justice Act 1970 which, in this field, limited its application...
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