W v H
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Parker |
| Judgment Date | 29 November 2013 |
| Neutral Citation | [2013] EWHC 3756 (Fam) |
| Court | Family Division |
| Docket Number | Case No: FD011D05848 |
| Date | 29 November 2013 |
[2013] EWHC 3756 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Parker
Case No: FD011D05848
Mr Nicholas Cusworth QC and Mr Justin Warshaw as junior counsel (instructed by Sears Tooth) for the Applicant
Mr James Turner QC and Mr Deepak Nagpal as junior counsel (instructed by Pinsent Masons LLP) for the Respondent
Hearing dates: 4th – 8th March 2013
This judgment is being handed down in private on 29 November 2013 It consists of 8 pages and has been signed and dated by the judge.
The Judge gives leave for this judgment to be reported.
On 4 April 2012 Mr Richard Anelay QC, sitting as a Deputy Judge of the High Court, gave W (W) leave to "activate" an application for a financial remedy pursuant to Part III of the Matrimonial and Family Proceedings Act 1984, purportedly issued in 2002. H appealed, relying on a number of grounds.
In November 2012 the Court of Appeal gave judgment ( [2012] EWCA Civ 1507; [2013] 2 WLR 1255; [2013] 1 FLR 1493), allowing the appeal on the sole ground that a marriage which did not purport to be performed under the Marriage Acts was not a void marriage within s.11 MCA 1973, and therefore not a marriage within the meaning of Part III of the Matrimonial and Family Proceedings Act 1984. Thus, there had been no jurisdiction in Part III proceedings following a foreign divorce.
As a result of that decision, W has commenced proceedings for orders to provide monetary compensation for breach of, or to otherwise enforce, H's undertakings recorded in an order made by Kirkwood J in 2002, which governs the financial arrangements between these parties, and which in itself was the foundation for the Part III claim.
W and H contracted an Islamic marriage in London on 2 July 1994, marrying by Nikah (marriage contact) in an hotel. Both parties originate from Saudi Arabia. There is a dispute as to whether they were primarily based in England or Saudi Arabia thereafter. In the summer of 2001 W commenced nullity proceedings in London, where she and the parties' three sons were staying or living at the family's London base (owned by a company). Within the nullity proceedings she applied for financial provision. In the nullity proceedings H challenged jurisdiction on the basis that W was not habitually resident here. He also applied for orders for the return of the children to Saudi Arabia pursuant to the inherent jurisdiction.
On 13 February 2002 Kirkwood J made an order by consent, based on the parties' agreement, that:-
i) The children would return to Saudi Arabia to live with W;
ii) A property in Jeddah would be transferred into her sole name;
iii) There would be ongoing financial provision by H for W and the children, specifically defined;
iv) H would pronounce an irrevocable talaq in Saudi Arabia.
The agreement was recorded in the order, underpinned by undertakings by both parties. W was to register a caution against the London property. W would not bring or pursue any further proceedings in England and Wales with reference to the ceremony of marriage between the parties or in relation to any matrimonial or other relationship between them, including (for the avoidance of doubt) under Part III of the Matrimonial and Family Proceedings Act 1984, or in relation to the children of the family, save that W might, following the irrevocable talaq by H in Saudi Arabia, if H was substantially in breach of his obligations set out in the order and providing that she was not in substantial breach of her obligations set out in the order, issue a claim under Part III of the Matrimonial and Family Proceedings Act 1984, such claim to be adjourned generally, without prejudice to any arguments that H might raise.
The order further records that if either is in breach that shall be treated as a contempt of court.
On 30 August 2002 W purportedly issued a Part III application.
In 2003 H pronounced a talaq in Saudi Arabia.
Since that date both parties have alleged breach of the order's terms. Proceedings for committal were brought by both parties, which were eventually settled by consent. There were other actual and threatened proceedings, including cross-applications for "Hadkinson" orders (to debar a contemnor from making any application whilst in contempt).
On 20 June 2011 W applied for relief under Part III. She alleged many and wide-ranging breaches by H of his financial obligations. She asserted that this provided the trigger to a Part III application. H denied that he was in substantial breach and alleged breaches of W's obligations in the order regarding the children.
H did not appear at the hearing before the Deputy Judge on 4 April 2012. Shortly before the hearing H emailed the clerk to the Deputy Judge. He sought an adjournment for 14 days. He said that he was putting his solicitors in funds and offered to pay W's wasted costs. The Deputy Judge declined to adjourn.
Shortly after the hearing commenced, Mr Turner QC, who had previously represented H, submitted through his clerk a skeleton argument stating that H was in financial difficulty, would not appear or be represented, and he set out the bare bones of this case as to the assertions of substantial breach, together with his objections to the leave application, raising the issue as to lack of jurisdiction because there was no marriage. However, Holman J's decision in Asma Dukali v Mohammed Lamrani (Her Majesty's Attorney General intervening) [2012] EWHC 1748 (Fam); [2012] 2 FLR 1099, on the same jurisdiction point, had not been then decided.
Without hearing evidence, but on the basis of submissions and the documentary evidence, the Deputy Judge recorded in his judgment and in paragraph 3 of the consequent order three instances of breach: failure to index link, failure to pay for the requisite number of W's staff, and failure to maintain and keep the Jeddah property in good repair. He found that these breaches were substantial and not illusory. Although he recorded that there had been a dispute and much conflicting evidence between the parties about the extent of the maintenance and rebuilding works required to the Jeddah property, he did not deal with the totality of W's assertions as to the alleged multifarious breaches over a lengthy period of time, nor with H's case as to frustration of his proposals to carry out repair works due to a dispute as to whether what W wanted was in fact a substantial extension, improvement and upgrade of the property. Nor did he deal with H's case that the order provided that he pay for W's existing staff as at 2012 and not the number employed by W as at the date of Kirkwood J's order. He said that H's case as to set-off did not affect the question of whether there had been breach. The Deputy Judge ruled against H's case set out in the papers that W was in breach of contact orders and other children orders which formed part of the overall bargain.
H appealed, raising five points. The Court of Appeal found that it was only necessary to rule on the fundamental point of jurisdiction. This is clear from both the judgment and also an exchange between Mr Turner and Thorpe LJ. The remaining grounds of appeal were that (i) W had not been habitually resident in England on the relevant date, contrary to the Deputy Judge's finding (ii) the marriage had not been terminated by 13 February 2002, the date when leave had purportedly been given to apply under Part III (iii) the Deputy Judge had not been entitled to find that H had had an interest in a dwelling-house in England and Wales within the meaning of s 15 (1) (c) of the 1984 Act; (iv) he should not have found that H was in substantial breach and W was not. Mr Turner says that the Deputy Judge fundamentally misinterpreted the evidence in reaching his conclusions.
After the judgment of the Court of Appeal was handed down, an outstanding issue as to costs remained. H sought his costs of the appeal. Mr Turner filed a skeleton argument setting out his case. Mr Cusworth filed a skeleton argument in reply. He argued that although W had failed on the appeal she had been successful in obtaining the findings, and that the findings...
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...The “no order” principle does not apply to appeals (Judge v Judge [2008] EWCA Civ. 1458; jurisdiction disputes (Charbatly v Shagroon [2013] EWHC 3756 (Fam); interim periodical payments or any other form of interim remedy. [45] A costs order may be made at any stage of the case where a party......