Strand, London, WC2A 2LL
B e f o r e :
| Ankita Goyal
|- and -
James Turner QC (instructed by Forsters) for the Respondent
All lawyers acted pro bono
Hearing date: 19 December 2016
Crown Copyright ©
This judgment was delivered in private. The judge gives leave for this version of the judgment to be published. It should be referred to as Goyal v Goyal (No. 3).
Mr Justice Mostyn:
i) The question of ownership of the rights under the annuity contract ("the ownership issue").
ii) The wife's deemed application for a variation of the periodical payments order to provide that thereby she receives all the benefits arising under the annuity contract ("the wife's application").
iii) The husband's application to vary the existing periodical payments order which he issued in February 2016 shortly before it was due to take effect ("the husband's application").
The ownership issue
"… [the Court of Appeal] set aside the entirety of the offending order, including the provisions which made declarations as to the beneficial ownership of the Indian pension fund; and ordered that the wife's claims for a pension sharing order should be 'reheard'."
And at para 5:
"Judge Brasse found that the Indian pension fund belonged to the husband and dismissed his case that he had transferred all his interest in it to a Mr Deshmukh. He made strong findings of dishonesty against the husband. McFarlane LJ did not in his judgment question those findings, and indeed relied on them. He stated however at paragraph 15 that "the focus of this appeal is not upon the judge's findings of fact but upon the order that he made in the light of those findings." In paragraph 47 he held that paragraphs 1 and 2 of the order should be set aside - and those only concerned the injunction order. However, as I have already stated, the actual order of the Court of Appeal sets aside not merely the illegitimate free-standing injunction orders (i.e. paragraphs 1 and 2), but the order "in its entirety" made by Judge Brasse, and this included the key declarations as to the beneficial ownership of the fund. Therefore, it seems to me that, although this was probably unintended by the Court of Appeal, the question of the ownership of the fund is at large and needs to be re-determined, although in such determination the findings of Judge Brasse are naturally admissible and influential, if not decisive."
And at para 46:
"I cannot go down this route [of periodical payments] at this stage as the question of the ownership of the rights under the annuity contract has yet to be determined by me in circumstances where the Court of Appeal has inadvertently set aside the formal declarations of ownership made by Judge Brasse."
"AND UPON the court finding:
(a) that the Husband is the sole beneficial owner of the HDFC Life New Immediate Annuity Plan Number [redacted] with HDFC Standard Life Insurance Company Ltd;
(b) that the husband is the sole beneficial owner and operator of the ICICI Bank account number [redacted]; and
(c) that the income paid quarterly into the Husband's ICICI Bank account number [redacted] since March 2015 of 152,968 Indian Rupees from the HDFC Life New Immediate Annuity Plan Number [redacted] belongs beneficially to the Husband."
"Next, is "issue estoppel". Here the parties must be the same (in reality), but the subject matter of the litigation in the prospective second action is not the same as that in the original action. In this scenario a bar may arise "where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant, one of the parties seeks to re-open that issue" (Arnold v National Westminster Bank plc  2 AC 93 at 105E per Lord Keith of Kinkel). In this situation, the bar is not absolute. Here, the public policy on which the doctrine is based and principles of justice have greater force. A discretion arises to do justice. It is in principle possible to challenge the previous decision on the relevant issue not just by taking a new point which could not reasonably have been taken on the earlier occasion, but even to reargue in materially altered circumstances an old point which had previously been rejected."
"Except in special circumstances where this would cause injustice, issue estoppel bars the raising in subsequent proceedings of points which (i) were not raised in the earlier proceedings or (ii) were raised but unsuccessfully. If the relevant point was not raised, the bar will usually be absolute if it could with reasonable diligence and should in all the circumstances have been raised."
i) The policy is held in his name by HDFC Life.
ii) Although communication with HDFC Life appears to be made from an email address containing Mr Deshmukh's name ([redacted]@[redacted]) there is no evidence that HDFC Life do not believe that this is other than an email account operated by the husband.
iii) The ICICI Bank account number [redacted] is in the name of the husband. Although the husband claimed that it was operated online solely by Mr Deshmukh there is no evidence to support it. There is no evidence that the payments out go to an account in the name of Mr Deshmukh. The husband told me that it was very common in India for bank accounts to be owned and operated by people other than their ostensible holders. I find it hard to accept that international anti-corruption standards of "know your client" could be so casually disregarded.
iv) The document said to assign the husband's interest in the predecessor policies to HDFC Life and thence to Mr Deshmukh, dated 29 January 2014, is not signed by Mr Deshmukh.
v) On 18 February 2014 the husband agreed to Eleanor King J making a Rose order which assigned 50% of the predecessor policies to the wife. He did not reveal at that time the existence of the purported agreement of 29 January 2014 to the wife or to the court. (The Rose order was later set aside by consent).
vi) Mr Deshmukh has known for a long time that the ownership of the policy is in issue yet has filed no evidence notwithstanding that he has been served with the paperwork.
vii) The husband was not able to produce a single email between himself and Mr Deshmukh about this issue. He said that all his communications were by telephone or WhatsApp. His WhatsApp communications with Mr Deshmukh were wholly banal and did not reveal any anxiety on the part of Mr Deshmukh that his property, the annuity, was imperilled.
The wife's application
The husband's application