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 HIGH COURT
FAMILY DIVISION
(MR JUSTICE MUNBY)

		Royal Courts of Justice Strand London, WC2 Tuesday, 24 September 2002

1. LORD JUSTICE LAWS: This is an application for permission to appeal against orders made by Munby J in the Family Division on 1 May 2002.
2. The case has a long and painful history. By the orders in question Munby J first struck out an originating summons issued by the applicant by which it was sought to challenge certain earlier orders made in matrimonial litigation; and secondly, under the Grepe v Loam principle, he prohibited the applicant from making without permission of a High Court Judge any application or commencing any proceedings concerning (1) her marriage to her former husband, Mr Tee (2) their financial affairs and (3) a property known as Gorse Meadow. I have to say that Munby J's judgment is very careful and comprehensive.
3. The applicant has been represented before me, with my permission, by her present husband, Mr Hillman, who is a solicitor though as I understand it not now in practice. He has represented his wife at earlier stages in the history of this litigation and he has addressed me with great courtesy and restraint.
4. The applicant was married to Mr Tee on 31 January 1974. In 1986 they bought the property called Gorse Meadow. I say "they bought", though in one sense the precise identity of the purchaser, or at any rate the beneficial owner, has been at the heart of a great deal of dispute. The contract for the purchase, about which Mr Hillman has had a good deal to say, showed the applicant as the sole purchaser; but the transfer was taken in the joint names of herself and Mr Tee. The transfer document contained no declaration of trust and Mr Hillman has said this morning that there was no other written direction by the purchaser as regards the equitable interests which were to arise upon the purchase.
5. In 1992 the applicant and Mr Tee were divorced on Mr Tee's petition alleging adultery. In June 1992 Mr Tee moved out of Gorse Meadow and Mr Hillman (who as I have said is now the applicant's husband) moved in. They were married on 24 February 1996, I think. Before that date the applicant had made no application for ancillary relief against Mr Tee. On 3 February 1997 His Honour Judge Beashel gave a declaration that the applicant then had no right to issue any such application for ancillary relief. On 28 February 1997 the applicant issued, or there were issued on her behalf, proceedings under the Trusts of Land and Appointment of Trustees Act 1996 in relation to Gorse Meadow. Her pleading accepted that she and Mr Tee had become joint owners of the property but asserted that because of assurances given by Mr Tee he was estopped from asserting a proprietary interest or alternatively he held his interest in trust for her.
6. There was an extended trial of those proceedings over some eight days in May and June 1997. District Judge Ainsworth held that the beneficial interest in Gorse Meadow belonged to the applicant and Mr Tee in equal shares. Then in ancillary relief proceedings District Judge Ainsworth made an order which was drawn on 27 January 1998 that the applicant should pay Mr Tee a lump sum of £231,224 whereupon he was to transfer his interest in Gorse Meadow to her. The applicant appealed both orders. His Honour John Chalkley, sitting as a Deputy Circuit Judge, dismissed the appeals on 2 October 1998 save that he reduced the lump sum to be paid to Mr Tee to £188,125.
7. The applicant sought permission to appeal to the Court of Appeal. I think it was at this stage that she was first represented, and she was at any rate then represented, by Mr Hillman. Refusing permission on 22 March 1999, Thorpe LJ in a passage cited by Munby J said this:

"On any objective view, by 1994 there was only one material capital asset, Gorse Meadow. It was obviously joint property. Clearly, if the wife could not afford to buy the husband out, a sale was inevitable. Litigation seems hardly appropriate in those circumstances. Negotiation or mediation should have sufficed. If it had to be litigation, relevant evidence could easily be defined and one day in court should have been ample. The fundamental error in the county court was to permit Mr Hillman's diversionary excursion into the Trusts of Land Act. The court should have perceived that because the joint owners were husband and wife, and because there were no third party interests (excluding Mr Hillman's specious claims) the only pertinent statutory provisions were contained in ss 22-25 of the Matrimonial Causes Act. Because they impose a duty on the court to redistribute or divide capital in such a way as to reflect the statutory criteria and all the circumstances of the case, they override other statutory provisions or rules of law which have the very different objective of determining proprietary interests generally between non-spouses or, in spousal cases, where a third party to the marriage claims a proprietary interest jointly with one or both of the spouses. Cases relied on by Mr Hillman involve either unmarried property owners, or married property owners to whose home a third party had contributed cash. Since 1971, when the Matrimonial Proceedings and Property Act 1970 came into force, real property and trust law has had a much reduced rôle in determining distribution and division of realty between spouses. The consequence of this error has been furious adversarial litigation, scarcely controlled by the court."

8. It is only fair that I should say that Mr Hillman has indicated to me today that he was not responsible for the "diversionary excursion". He had been ill, I think, at the time those proceedings were instituted, and they were pleaded by counsel or at any rate other lawyers. However that may be, that judgment of Thorpe LJ forms part of the background to the case. Judge LJ and Sir Richard Scott VC (as he then was) agreed in the result with Thorpe LJ that permission should be refused.
9. One might have thought that would have been the end of the matter but on 31 August 1999 the applicant issued proceedings in the Queen's Bench Division against Heppenstalls, the solicitors who had acted in 1986 for the applicant and Mr Tee in relation to Gorse Meadow. The claim was for damages for negligence. It was said that the solicitors should have by some appropriate documentation secured a declaration of the applicant's interest in Gorse Meadow to the tune, she would have it, of 100 per cent of the beneficial interest. It was in the course of these negligence proceedings, I think, that the contract taking Gorse Meadow in the applicant's sole name came to light. It was disclosed by Heppenstalls in the course of discovery in February 2000.
10. The negligence proceedings came on for trial before His Honour Judge Bradbury sitting as a Judge of the High Court. This trial lasted seven days and the judge gave judgment dismissing the action on 26 June 2001. Judge Bradbury's judgment is an important part of this unhappy tale. Munby J cited extensively from it, not least passages in which the judge dealt with the coming to light of the contract. I have read what was said by Judge Bradbury with some care but I will just set out the following passage which is quoted by Munby J at paragraphs 27 and 28 of his judgment. This is what Judge Bradbury said:

"I have no doubt at all that on the whole weight of the evidence, including statements and affidavits in previous proceedings, the oral evidence before the district Judge, all the evidence that I have heard in this case, that Mr & Mrs Tee had a clear intention that the legal and beneficial interest in Gorse Meadow should be held by them in equal shares, and that following that intention it was their joint wish that the equitable interest in the contract merged on completion of the purchase with the legal title vested in Mr & Mrs Tee in equal shares. In making that finding I reject and make it clear if I have not already done so any suggestion that Mrs Tee had at any material time forgotten that she had signed a contract or was unaware and did not support the implications of the later Transfer."

11. Then a little later this was said:

"It is . . . Gorse Meadow that has been the primary property to be considered in this action. Evidence about the contract has been new . . . I have found on investigation that its significance would have made no difference to the original decision".

12. The applicant sought permission to appeal to this court against Judge Bradbury's judgment. That application was refused on 29 November 2001. Thereafter the applicant issued the originating summons which was at length to be struck out by Munby J. The summons sought orders setting aside the earlier orders made by District Judge Ainsworth and His Honour John Chalkley. The grounds were summarised as follows:

"fraud, deceit, fraudulent misrepresentation and, or in the alternative, for non-disclosure of documents on the part of one or more or all of the respondents".

13. The reference to non-disclosure in large measure is a reference to the contract to which I referred, although Mr Hillman says there are many other instances of non-disclosure.
14. The respondents to this originating summons were Mr Tee and his solicitor and counsel who had appeared before District Judge Ainsworth in May and June 1997. On 13 March 2002 Mr Tee and the solicitor, Mr Spender, issued an application to strike out the originating summons as scandalous, frivolous and vexatious. I think the other respondent to the originating summons, counsel, was for some reason out of the picture and does not, as far as I am aware, figure in any present formulation of the dispute. Munby J acceded to the application to strike out and he gave full reasons for doing so. I have looked of course at everything that he has said. Again I am not going to read it all out. Mr Hillman and the applicant are very well aware of the content of the judge's judgment. But I will take this passage in paragraphs 47-49:

"47. The originating summons is simply the prelude to a wholly impermissible attempt to re-litigate issues which have already been decided adversely to Mrs Tee-Hillman in proceedings -- the trust proceedings, the ancillary relief proceedings and the negligence proceedings -- in every one of which she was a party, in every one of which she gave evidence and, incidentally, in every one of which her evidence on the crucial matter was simply rejected by the court. True it is that Mr Tee was not a party to the negligence proceedings, so Judge Bradbury's judgment cannot found any estoppel per rem judicatam -- neither a cause of action estoppel nor an issue estoppel. But that is not the point. In the first place, as I have pointed out, Judge Bradbury's judgment, given after hearing evidence from Mrs Tee-Hillman, demonstrates the total lack of merit in her claim. Furthermore, the fact that he came to the decision he did, in proceedings in which Mrs Tee-Hillman was in effect trying to set up -- albeit as against a third party -- the substance of the very claim which she now seeks to pursue against Mr Tee, makes it an abuse of the process for her now to seek to resurrect against Mr Tee the claim so comprehensively dismissed by Judge Bradbury: see the discussion by Lord Hoffman in Arthur JS Hall & Co v Simons [2000] 3 WLR 543 at pp 572D-574F.

48. In summary, Mrs Tee-Hillman's case -- by which I mean both her case as set out in the originating summons and the case which thereafter she seeks to pursue -- is, as Mr Egleton asserts, wholly unmeritorious. It cannot succeed. It is an attempt to re-write history. It has no foundation in any honest account of events given by Mrs Tee-Hillman. Its origin is, I do not doubt, to be found in the fertile ingenuity of Mr Hillman's lawyer's mind. It constitutes an abuse of the process in its widest sense. This litigation is vexatious and an abuse of the process. It must be stopped. The originating summons should be struck out.

49. Mr Hillman and Mrs Tee-Hillman have shown their determination to ignore everything that Thorpe LJ said in 1999. The history of the litigation as a whole, both before and since that judgment, tells its own tale. The time has come to put a stop to it once and for all. I am minded to make a Grepe v Loam (1887) 37 ChD 168 order."

15. I have indicated the scope of the order which Mr Justice Munby made under the Grepe v Loam principle. Of course he gave Mr Hillman an opportunity to make submissions before the order was made.
16. Mr Hillman has made a number of submissions before me today. He took what he called a preliminary point referring to certain authorities. He submitted that the very process of striking out an originating summons such as that issued by the applicant was an improper process and that there was a right to have the originating summons heard out. This seems to me, with respect, to be misconceived. The court has a duty, certainly a right, to protect its own procedure. If, and it may be a very big if, any originating civil process is in truth abusive the court may strike it out and often ought to do so. There is no exception for an originating summons such as this where the relief sought is to set aside earlier orders. Mr Hillman says the earlier orders were unlawful and has said so with some emphasis, but that does not touch the question whether there is properly a jurisdiction to strike out such an originating summons as was issued here. There is nothing therefore in the preliminary point.
17. Mr Hillman concentrated most of his submissions, though not their entirety, on what he described as the material non-disclosure of the contract by which Gorse Meadow was taken in the applicant's name only. He says that that issue has never been considered by a court in the Family Division. He refers to authority to the effect that without full and frank disclosure the court cannot make a just order. In summary (though these are my words, not his) the submission is that there was here material non-disclosure of the contract at the appropriate stage; it was not made available until a late stage; and this of itself entitles him on the applicant's behalf to unravel, or to invite the court to unravel, all the litigation that had gone before. But that is simply not right. The question of non-disclosure was considered on it merits by Judge Bradbury. And Munby J himself, at paragraph 42, said:

"There was no relevant non-disclosure or misrepresentation in relation to the contract. That is clear from the findings of fact made by Judge Bradbury, having heard evidence on the point from all the relevant witnesses, as set out in paragraphs [24] and [25] above."

18. But even if that view of matter could be attacked, it does not justify this attempt to go behind the previous orders of the court which themselves have been sought to be tested on appeal.
19. The real vice of this litigation is that it sets the proper court procedure at nought. The earlier orders of the district judge and the circuit judge are all sought to be appealed. District Judge Bradbury's order was sought to be appealed. The thing has, in short, run its course. I have to say that I agree with Munby J that no lessons seem to have been learned here. It was right to take the view that this matter should be given its quietus. I will dismiss this application.
ORDER: Application dismissed