COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
The Honourable Mrs Justice Baron
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE STANLEY BURNTON
LORD JUSTICE TOMLINSON
| Sally Ann Lykiardopulo
|- and -
|Panaghis Nicholas Fotis Lykiardopulo
|- and -
Desmond Browne QC, Adam Wolanski and Stewart Leech (instructed by Atkins Thomson)
for the 1st Respondent
David Balcombe QC (instructed by Manches) for the Interested Party.
Hearing date: Thursday 7th October 2010
Crown Copyright ©
LORD JUSTICE THORPE :
Development of the Issue
"Baron J: What is the point of that Mr Bishop?
Mr Bishop: There is a very strong public policy reason to do that, My Lady, this is the worst case of non-disclosure ever before the English courts.
Baron J: I doubt it.
Mr Bishop: It unquestionably is, My Lady. It is a fraud involving £46.5 million to £100 million, it is an unrepentant fraud, it's a matter where your Ladyship has found that there has been an attempt to involve others in the perversion of justice. There are very strong public policy reasons.
Baron J: It is nothing like the case that I dealt with a year ago that has been published on an anonymised basis. That was far worse than this and I do not see at first blush, just so that you can think about it, that what you said is anything other than simply name and shame, and I do not see the point of it. There is a family involved in here, there are children involved. It just is ridiculous. "
The Hearing Below
"I have been in two minds about making this application and have only done so because of his shocking attempts to cheat me by his sustained lies to the court by complying with the judgment promptly and in full (sic). The first respondent has shown a cynical approach to the question of compliance with the judgment and the court order…I now firmly believe it to be appropriate for the first respondent's litigation misconduct to be publicly known. This is principally because I feel it to be most unfair for his reputation to be preserved having behaved (and continuing to behave) so very badly towards me."
i) The nature of the exercise conducted by the judge.
ii) The pact between the court and the parties subject to the duty of disclosure.
iii) The undesirable consequences of introducing a practice of public reporting in all or even significant misconduct cases.
i) The proceedings are quasi-inquisitorial. The judge must be satisfied that he has, or at least that he has sought, all the information he needs to discharge the duty imposed on him to find the fairest solution.
ii) The parties owe the court a duty, a duty of full, frank and clear disclosure. The duty is absolute.
iii) Sadly the duty is as much breached as observed. The payer's sense of the obligation is distorted by the emotions aroused by the payee. Breaches take many forms.
iv) Breach by omission is commonplace. A bank account or some other asset is not declared. That tactic gives rise to the counter, filching and copying the contents of desk, briefcase or computer (now proscribed by the decision of this court in Tchenguiz v Imerman  EWCA Civ 908, the effects of which have yet to be worked out).
i) The outcome resulted from the exercise of either a broad discretion or a proportionate judgment.
ii) Having heard oral evidence and submissions over the course of a ten day trial, albeit some 12 months earlier, no one could be in a better position than Baron J to make that judgment.
iii) The conclusion which she reached accorded with the practice of the Division. The number of ancillary relief judgments published without an anonymisation direction has been tiny in recent times.
iv) Nevertheless, her reasoning must be scrutinised.
"Mr Balcombe QC attended before me as an 'interested party' to make submissions as to why the judgment should not be published in an unanonymised form (if at all). On behalf of his client he was concerned, in particular, that the business would suffer. Although, as I have found, these brothers behaved disgracefully so far as the Wife's claim was concerned I have no evidence to suggest that their business dealings in the world market place are other than honest. In this sense I do not believe that I have a duty to protect members of the public at large as a result of the perjured evidence that they placed before me."
"Of course, I accept that neither the Husband nor his brother will be specifically castigated as liars in the public arena. But I remain conscious that the Husband has continuing genuine health problems. I do not believe that the added stress of public censure would assist his recovery. More importantly, I do not consider that it would assist the Wife to recover her just award pursuant to my decision."
Lord Justice Stanley Burnton :
"Michael gave me clear and very precise evidence when it suited but was vague when it did not. I am absolutely clear that he knew all about the business and had full details about Sigma, he just chose to disguise and complicate matters because he did not want the truth to emerge.
I am quite sure that his actions were motivated by what he considers is good for the Lykiardopulo family. In the final analysis he was a charming but unreliable witness who was prepared to be untruthful in order to support his brother's cause."
Lord Justice Tomlinson: