T v M
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Coleridge |
| Judgment Date | 23 April 2013 |
| Neutral Citation | [2013] EWHC 1585 (Fam) |
| Court | Family Division |
| Date | 23 April 2013 |
[2013] EWHC 1585 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Mr. Justice Coleridge
Mr. Brent Molyneux (instructed by Payne Hicks Beach) appeared on behalf of the Appellant Husband.
Ms. Nichola Gray (instructed by Sebastians) appeared on behalf of the Respondent Wife.
On 7 th November 2011, Mr. Justice Charles gave the husband permission to appeal an order made on 22 nd September of that year, which struck out the husband's application to vary a maintenance order. The maintenance order, against which the substantive complaint was and is made, was dated 19 th November 2010, although the long and detailed judgment which led to that order being made, had been delivered on 26 th September 2010. The husband appeals against the district judge's order striking out the application and seeks to have his application reinstated so that it can proceed in the usual way to a full hearing.
I am not going to spend any time on the background or chronology to this matter because it is very comprehensibly dealt with by the learned district judge, District Judge Hess, who has dealt with all the important hearings in relation to these parties' disputes. It is only necessary to put it in context in this way. The parties were married and/or lived together for a period of 16 years ending in 2005. There are three children, two of whom are now over 18, one of whom is aged 12 and is a weekly boarder at a Swiss boarding school. Even he will cease to be a boarder at the end of this summer. The parties, as I say, separated in 2005. Both have formed new relationships.
The original ancillary relief order came on for hearing in front of the district judge in, as I say, September 2010. I am told the hearing lasted some four days, of which three were taken up with the wife giving evidence. The judgment was then reserved and the judge, as I said, produced a lengthy judgment, which is to be found in the papers in bundle 1 at page A1. It, as these things so often do, required yet a further hearing and a further supplemental judgment to sort out the precise terms of the order. That supplemental judgment was again the production of District Judge Hess on 19 th November 2010.
Following upon the order being made, the husband issued an application to vary the periodical payments ordered by the district judge on 28 th March 2011, in other words, some four months after the original order had been made. Ms. Gray, on behalf of the wife in this case, says that that is an unusually short period of time before which that application to vary has been made and as a matter of practice is never seen in these courts. I do not think she is exaggerating when she says that. I cannot think of a case when an application to vary has been advanced so soon after a substantive order. It must give the court the singular impression that the husband was completely disenchanted with the original order and, from the moment it was made, was looking for ways to argue for a reduction. That conclusion does not come only from the speed with which the application was issued. I have been shown communications, which I am not going to take any time to repeat into this judgment, which indeed demonstrates that the husband was extremely disenchanted with the order and was on the lookout from the word go to try and undermine it one way or another.
The substantive order against which challenge is levelled is in two parts: firstly relating to what should happen to a property, and against that no appeal is or has ever been advanced; the other is in respect of the order for periodical payments, which the husband was directed to pay. That most certainly is the subject matter of the husband's complaint. The order provided that the husband should pay periodical payments at the rate of €7,250 per month, a total of €87,000 per annum, together with 35% of his net bonus or other incentive payments but so that the maximum total maintenance entitlement was not to exceed €192,000 per annum. In addition to that, the husband was ordered to pay child maintenance for the children at the rate of €1,000 per month plus school fees and tertiary education fees. It is right to point out that there was no appeal from that order. It might well be that that was the more appropriate procedural methodology to apply in the light of the husband's continuing concern about the level of the wife's income which certainly dated back to the original hearing in front of the district judge. However, I am doubtful in the end that it would have made any great difference to the district judge's approach to the case.
The husband's income derived from his employment as the regional development manager for XY Limited, which is a role which is based in Brussels. It was, as is common with businessmen in his position, made up of a number of different elements: a basic salary of, in Euro terms, €18,490 per calendar month and then a discretionary bonus which, of course, fluctuated; school fees for the children at their boarding school in Switzerland; and then, again, annual discretionary grants under various share schemes. It is plain that a great deal of time was spent at the original hearing in September 2010 to try and pin down what the right figure was for the husband's income, going forward.
Central also to the determination by the district judge was his evaluation of the wife's earnings and earning capacity, and it is, again, plain that enormous amounts of forensic time and energy, together with a mountain of documents, were deployed to try and establish a figure for her income in circumstances where she works for companies which guide the rich either in skiing resorts or on safaris.
The application to vary was therefore issued by the husband, and the wife responded by issuing an application on 8 th July 2011 to strike out the application to vary downwards on the basis that, in accordance with the rules, it had no prospect of success. That application, as I have already indicated, came on for hearing last year on 22nd September and the district judge, having heard submissions, I think, on this occasion by the same counsel as are in the case today, was persuaded to strike out the application, and it is against that which the husband appeals today.
The important point to stress is that this is an appeal. It may sound simplistic to say that, but it imports into the process which I undertake a filter process which was not present when the matter was dealt with by the district judge in September last year. The court in the appellate position that I find myself in does not hear the case de novo and is not concerned to decide whether or not it might have arrived at a decision which would, in the circumstances, be different from the one arrived at by the district judge or the court below. The court is concerned with a reviewing function; that is to say, the court in its appellate jurisdiction has to review the process which was undertaken in front of the district judge and satisfy itself that the court at first instance properly considered all the arguments that were put before it and nothing relevant was omitted and nothing irrelevant was allowed to enter into the debate. Providing the court is satisfied that has taken place, it does not interfere unless satisfied that the result is plainly wrong, and that is a high bar for any appellant to have to cross. And it is very important for that to be borne in mind particularly in this case.
The order by the district judge of 22 nd September was indeed a strong order, if I may put it in that way. It is unusual for a litigant to have his or her application struck out without a full investigation, but, I would add in parentheses, nowadays very much less unusual than perhaps it might once have been, and the court is absolutely vigilant to try and ensure that unnecessary costs and court time are not wasted.
The power to strike out an application is contained in the 2010 Family Procedure Rules at rule 4.4, which reads as follows:
"(1) Except in proceedings to which Parts 12 to 14 apply, the court may strike out a statement of case if it appears to the court –
"(a) that the statement of case discloses no reasonable grounds for bringing or defending the application;
"(b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings …"
I do not think anybody is arguing the case on the basis of ground (b) and I do not detect that that was the basis upon which the district judge approached his task.
As a gloss on that rule, I am reminded of the wise words of Bennett J. in the case of Rose in 2003, where, in referring, in fact, to a slightly different rule of court but one which mirrors the rule I have just quoted, he said this:
"… it is absolutely essential in ancillary relief cases that...
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