England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION
(Mrs Justice Bracewell)

		Royal Courts of Justice Strand London WC2 Wednesday, 31st January 2001

Wednesday, 31st January 2001

1. LORD JUSTICE THORPE: In 1983 there was an arranged marriage between Maksuda Uddin and Iqbal Ahmed. On 25th January 1983 a marriage agreement was made which included a provision:

"(5)If there is a marriage break in the future the bridegroom must pay the compensation and that compensation will be £100,000 Sterling."

2. The marriage subsequently was celebrated. It lasted about 15 years, but the couple were divorced in 1998. Then an action was brought by Maksuda's mother against not only Iqbal but also his parents. It seems that the original agreement had been signed not only by the young couple but also by the bride's father and the bridegroom's father. It was witnessed by the Assistant Commissioner of the Bangladesh High Commission, and subsequently the young couple signed the documents in the presence of a Notary Public.
3. The action by Mrs Uddin was commenced in the Manchester District Registry of the Chancery Division, and the Ahmeds moved to strike it out. The application came before the District Judge, who refused to strike the action out but transferred it from the Chancery Division to the Family Division.
4. The Ahmeds appealed his refusal. The appeal was decided by Bracewell J on 31st October. She accepted the District Judge's basic appraisal which he had expressed in this paragraph:

"Whilst it is not set out specifically, there is no doubt that the compensation was payable to the wife and not to the wife's family or by the husband's family. The fact that the wife's father and husband's father signed the agreement, in my view, gives them no right whatsoever. They were merely witnessing, as part of the family, the agreement made between the husband and wife. I think that point is reinforced by the fact that the husband and the wife re-signed the agreement before the Notary Public on 30th March 1983."

5. I should interpolate that Mr Uddin had died in 1989. Mrs Uddin, therefore, mounted her claim as being the person entitled to his estate.
6. The judge went on to disapprove alternative and seemingly conflicting interpretations which the District Judge had expressed, saying that the document was a family agreement of which the claimant was a party by virtue of her being the wife of one of the signatories.
7. In my opinion, the judge was perfectly right to draw attention to this conflict and to give her endorsement to the first interpretation and to reject the other. The judge could not entirely understand why the District Judge had declined to strike out under rule 3.4(2) on the interpretation which he had made of the document. She concluded that he had fallen into error and that, of his own motion, he could have exercised the power under Part 24 to give summary judgment where it was asserted that the claimant has no real prospect of succeeding on the claim. She, accordingly, allowed the appeal and further found that the application under Part 24 was well-founded.
8. The case in the court below had been argued for the Uddins by Mr Berkeley QC. He it was who settled the skeleton argument in support of the application for permission on 13th November. That application I refused on paper on 11th December, simply saying that there had been one appeal in the court of trial and that none of the criticisms advanced by Mr Berkeley seemed to be sufficiently compelling to warrant permission for the initiation of another appeal. That was not accepted, and an oral hearing was requested.
9. In the meantime there has been a change of counsel. The skeleton argument for today's hearing has been settled by Mr Jeremy Calman. I would wish at once to pay tribute to the industry and scholarship which is apparent throughout the document. The same qualities have been demonstrated in his oral argument this morning. He has abandoned some of the points that are to be found in Mr Berkeley's skeleton. He really founds his application on the primary submission that it was not appropriate for the judge to make findings of fact at the strike out stage, particularly when the defendants had filed no evidence in support of their application. He particularly criticises the judge for her finding of fact that the parties to the agreement were the bride and bridegroom. He equally criticises the judge's finding that paragraph 5 of the marriage agreement inferentially provided that, in the event of breakdown, the sum of £100,000 was payable to the wife and not to any other member of the family.
10. Inevitably, I have reviewed the judgment in the court below as a family lawyer. Looking to the realities, if on the breakdown of the marriage there was to be a reallocation of the capital that the couple had enjoyed during the marriage, then that was to be achieved by an application to be brought by the wife in the suit which she had instituted. Within the discretionary determination of that application the judge would, of course, have regard to the agreement that the young couple had made in anticipation of marriage. In no sense would the judge be bound by its terms. It would simply be one of the many factors to which he was to have regard in the application of the section 25 criteria. So a subsequent belated endeavour by some other member of the family to enforce the marriage agreement by proceedings in Chancery strikes a family lawyer as being pretty empty manoeuvring and, accordingly, as a matter of good sense, the order made by Bracewell J is, from my perspective, impregnable.
11. Looking at the matter, as Mr Calman would invite us to do, as a question of pure contract law, I am perhaps less confident in arriving at the right result. Nonetheless, I feel quite clear that the judge rightly identifies the parties to the contract as being the bride and bridegroom. I think she was perfectly entitled to reach that conclusion on the material before her, namely the documentary record. I think she was equally entitled to reach the clear conclusion that any obligation on the bridegroom to pay the capital sum of £100,000 could only be an obligation to make that payment to the bride.
12. Whichever way the case is approached, I am quite clear in my mind that Bracewell J was right to kill the case on 31st October. I remain of the view that I held on the 11th December, namely, that this application does not deserve permission to appeal.
13. LORD JUSTICE BUXTON: I agree. Before the case came into the hands of Mr Calman a number of varied arguments had been deployed in support of the view taken by the District Judge and, latterly, by Bracewell J; but in his careful and helpful submissions, to which I also pay tribute, Mr Calman, effectively restricted himself to one point. He restricted his argument no doubt having well in mind that, since both the District Judge and Bracewell J had considered the application under Part 3 of the Civil Procedure Rules, any application to this court was an application in a second appeal as defined by section 55 of the Access to Justice Act 1999 and that it was therefore incumbent upon him to demonstrate that Bracewell J had erred in principle in the conclusion to which she came.
14. The principle that Mr Calman said was infringed was that the judge had reached what he described as a factual analysis of the agreement without having heard adequate evidence to that effect. The factual analysis to which reference was made was the finding of the District Judge as to the parties to the agreement, which has already been set out by my Lord and which was adopted and agreed with by Bracewell J.
15. I cannot agree with Mr Calman that either the District Judge or Bracewell J was making a finding of fact when they expressed themselves in terms that have already been set out. What they were both doing was stating what they construed the terms of the written marriage agreement to be.
16. Mr Calman's objection to that course is that the terms are ambiguous -- although he did not quite put it in that way -- and that the ambiguity and the true meaning of the document can only be elucidated by reference to its factual matrix.
17. There are a number of problems about that. First of all, the document, to my mind, although not explicit, is very cogent in favour of the obligation being owed to the daughter and not to the mother-in-law. Amongst the elements that point in that direction is that the marriage agreement is entirely recited in the name of and by the daughter-in-law. As the District Judge pointed out, it was the husband and wife, but nobody else, who re-signed the agreement before the Notary Public.
18. When I asked Mr Calman what consideration for their participation in the agreement had been provided by the parents, he very fairly said that he could not properly identify any. It is not recited in this document that they acted on behalf of the parties in bringing the marriage about, nor is there any suggestion that permission or approval for the marriage was required, nor could there be, in view of the fact that the bride at the time of the marriage was, I think, 22 years of age. So the document, taken by itself (and it is that document upon which the mother sues), in my judgement is not ambiguous and does not require any further reading in terms of its factual matrix. But, if it did, the facts, as far as I can see, go no further than the fact that the parties are getting married. Mr Calman said that it might be appropriate to look at the whole thing in the context of the Muslim beliefs of the parties and, as I understood it, their expectations and aspirations. But that goes far further than any appropriate consideration of the factual matrix as envisaged by the House of Lords in Prenn v Simmons and trespasses into the forbidden territory of trying to work out what the parties would have wished to achieve, rather than finding what the words that they used actually meant and produced.
19. Therefore, I cannot in any respect agree, despite the powerful arguments that have been put forward, that either the District Judge or Bracewell J erred in principle by doing no more in deciding the case than construing the agreement; and I am quite satisfied that that is what they did in the passage of which complaint is made. No error of principle was therefore committed in this case and, in my judgement, no error at all.
20. Mr Calman had a number of other points, one of which was whether the absence of consideration on the part of the mother-in-law prevented her from suing on the document. But that point does not arise, of course, if she is not a party to it at all. He also suggested, with appropriate diffidence, that some question might arise as to the proper law under which this contract should be determined. The only system of civil law arguably available other than the curial law of England would be the law of Bangladesh. Bracewell J rightly considered that there was no indication in this document that that had been the chosen law of the parties. It is true that it was signed in front of a gentleman from the Bangladesh High Commission; but it was an agreement between two parties getting married in England, and far more than the mere presence of an official from another country would be necessary to import the law of that country.
21. I would also say as a foot note, though only as a foot note, that it was quite rightly contended at an earlier stage of these proceedings that, if indeed the law was the law of Bangladesh, the court would, in any event, be justified in applying English law. Of course, no evidence has been produced as to the law of Bangladesh; and it is the party who asserts the application of a foreign law to produce evidence as to that law's terms. In my judgement that obligation applies at the rule 3.4 stage as well as at trial. However, none of that arises because there is no question of Bangladeshi law about this agreement.
22. For those reasons, therefore, which I have set out in rather more detail than otherwise would be appropriate in deference to Mr Calman's arguments, I entirely agree with my Lord that the judge was right and this matter should not be pressed further.
Order: Application dismissed. (ORDER DOES NOT FORM PART OF APPROVED JUDGMENT)