Viki Natasha Maughan (Applicant/Wife) v Richard Michael Edmund Wilmot (Respondent/Husband)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 13 January 2016 |
| Neutral Citation | [2016] EWHC 29 (Fam) |
| Docket Number | Case No: TN99D00733 |
| Court | Family Division |
| Date | 13 January 2016 |
[2016] EWHC 29 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Mostyn
Case No: TN99D00733
Mr J Swift (instructed by Thomson Snell & Passmore) for the wife
Mr N Bowen QC (direct access) for the husband
Hearing date: 21 December 2015
On 15 April 2014 I gave a judgment in this case ( Maughan v Wilmot [2014] EWHC 1288 (Fam)) which sets out much of the background, which I need not repeat here. I recorded that the husband had been validly served by email, as a previous order made by Ryder J on 27 February 2013 had provided. I also recorded that the husband had made his own application and had deluged the wife and the court with much correspondence sent by email. The husband's application was served by email and in its first form gave as the address for service a solicitor's office in London. In its second form that address was struck out and the husband gave no address for service. Therefore the husband accepted that the only way in which documents relating to his application could be served on him was by email.
The husband is English and works as a pilot for Turkish Airlines. The "seat" of his work is Istanbul but he has no home there – he gives his address in that city as "working from Bakirkoy, Istanbul". Bakirkoy is a district in the European side of Istanbul. After this judgment was distributed in draft Mr Bowen QC informed me that the husband's address in Bakirkoy is the Titanic Port Hotel. The nature of his work means he is highly transient and mobile. He has the use and ownership of two dwellings in Somerset and one in the Isle of Man. He spends leisure time here and elsewhere.
The order of 27 February 2013 was a final order which fixed the husband's liability to pay child maintenance. It provided that any document shall be deemed to be served validly on the husband if it is sent to him by email, and two email addresses were given. It did not say anything about service out of the jurisdiction. Implicitly it governed service on the husband whether he was in or out of the jurisdiction.
The judgment given on that day recorded that the husband was present at the hearing, although he had left, feeling unwell, before judgment was given. The order records at para 2 that the husband's application for an adjournment made in the face of the court was refused. The suggestion that the order is invalid because it provided for service of documents by email on the husband is frankly ridiculous. The judgment, later reflected in the order, was transcribed, and a copy of the judgment was obtained by the husband. He knew exactly what it entailed. He even used a copy of it, annotated, as Exhibit B to his "Notice" filed with the court (and sent by email) dated 16 March 2014 (which bears his digital signature). It did not need later service on him to acquire its validity, or, for that matter, for him to know what the court had ordered.
The husband sought to appeal the order but permission was refused by Lloyd LJ on 25 July 2013. On that occasion he was represented by counsel. His grounds of appeal did not include any complaint about the validity of the order permitting email service on him. There have been numerous hearings since then including the one before me on 15 April 2014 to which I have referred. On 8 July 2015 the husband was represented by Mr Bowen QC. On that occasion he asserted, for the first time, that the original order of 27 February 2013, and all subsequent orders which were served by email, are null and void and must be set aside because there is no power to serve a person out of the jurisdiction by email where he is present in Turkey, a country which is a party to the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters ("The Hague Service Convention"). These submissions were repeated on 29 September 2015 when I fixed this hearing to determine an application by the husband, which I treat him as having made, to set aside the original order of 27 February 2013 and all subsequent orders.
Since the original order large sums of child maintenance have been paid, but by no means the full amount. Large amounts of arrears have arisen and these had been enforced by means of the receivership which I ordered. Large amounts of costs have been incurred and again substantial sums have been enforced against the husband. Mr Bowen QC says all this has been achieved illegitimately as the orders are null and void. In his oral submissions he said that all the money must be repaid and the wife should seek recompense from her solicitors who will be fully insured.
An order of any court is binding until it is set aside or varied: R (on the application of Lunn) v Governor of Moorland Prison [2006] EWCA Civ 700, [2006] 1 WLR 2870, at [22]; Serious Organised Crime Agency v O'Docherty (also known as Mark Eric Gibbons) and another [2013] EWCA Civ 518 at [69]. An order is binding even if there were doubt as to the court's jurisdiction to make it: Chuck v Cremer (1846) Cooper temp. Cott. 205; Hadkinson v Hadkinson [1952] P 285 at 288; Isaacs v Robertson [1985] AC 97 at 101–103; M v Home Office [1993] UKHL 5, [1994] 1 AC 377 at 423; KW & Ors v Rochdale Metropolitan Borough Council [2015] EWCA Civ 1054 at [22].
Under FPR 4.1(6) and section 31F(6) of the Matrimonial and Family Proceedings Act 1984, as amended, the court has power to vary, revoke, suspend or rescind an order made by it. This is a discretionary power. Even if there is shown to have been doubt as to the jurisdiction of the court to make an order it does not necessarily follow that the discretion will always be exercised to set the order aside. The power will be exercised in accordance with elementary principles of justice. If a party has promptly challenged an order on a certain ground and has always protested its validity then the power to set aside would very likely be exercised in his favour. But if a party has acquiesced in the validity of an order, or has delayed in challenging it, or has submitted to and accepted the jurisdiction of the court, or has otherwise behaved unconscionably, then it is improbable that the discretion would be exercised in his favour.
This is just such a case. Over two years elapsed before the husband took this point, although he took many other meritless points about the validity of the order (for example, that the order did not precisely reflect the terms of the judgment). All of these were dismissed by Lloyd LJ in the Court of Appeal. In that period there had been considerable litigation between the parties, during the course of which the husband himself has, as I have stated, deluged both the wife and the court with emails, and had made his own applications giving an address in England and email addresses for service. At the hearing on 21 December 2015 nothing was placed before me which showed that the husband had raised any protest against the email service provision of the order. On that occasion I directed that further written submissions on certain discrete points should be filed by 6 January 2016 as I intended to write this judgment on 7 January. Mr Swift compiled; Mr Bowen QC did not, claiming that the matter had been too complicated. I therefore directed on Saturday 9 January that in circumstances where this judgment had been largely written I would accept further submissions from Mr Bowen not exceeding 4 pages. That was sent to counsel at 16:47. However on that day at 15:10 Mr Bowen had filed with my clerk a 25 page further submission. Following receipt of my direction he filed on Sunday 10 January at 18:15 a condensed version of 4 pages. I have read the latter but not the former. The condensed submission asserts that the husband has indeed protested about email service and states that a bundle of letters and emails will be filed on Monday 11 January. This is unacceptable. I have not read any further material. Even if the husband has protested about email service of orders made in his absence, such protests ring very hollow indeed given his extensive use of that medium in this litigation. My previous judgment shows how he was fully aware of the applications that were then before the court.
In my judgment the husband by his conduct has forfeited the right to advance any argument concerning the validity of the orders which have been in place for such a long time. I decline to exercise my discretion in his favour.
However, I will nonetheless express my opinion on the argument advanced by Mr Bowen QC as this may well be relevant in other cases. Moreover, it may be that another court finds my primary decision in relation to my discretion to be wrong and so it is necessary for me to give my reasons as to why I reject the basic argument of Mr Bowen QC.
The law reports contain many cases about service and an aura of mystery and complexity envelopes the subject. However, recently in Abela & Ors v Baadarani [2013] UKSC 44 (26 June 2013), [2013] 4 All ER 119, [2013] 1 WLR 2043, the Supreme Court has addressed the subject with arresting simplicity and has exploded many of the myths surrounding it. At [37] Lord Clarke reminded us all of a simple truth namely that the whole (and sole) purpose of service is to inform the defendant of the contents of the claim form and the nature of the claimant's case. Therefore when granting permission to serve originating process out of the jurisdiction in a civil claim (which permission is not required in a family claim – see FPR 6.41) the court has power under CPR 6.37(5)(b)(i) to direct that the service may be effected otherwise than in accordance with the law of the foreign country. Mr Bowen QC accepted that such a direction...
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