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 OF JUSTICE
FAMILY DIVISION
(HER HONOUR JUDGE DARWELL-SMITH)

		Royal Courts of Justice Strand London, WC2 Monday, 18th November 2002

1. LORD JUSTICE THORPE: The marriage between Mr and Mrs Edwards broke down in the spring of 2001, and solicitors were in correspondence concerning the wife's claims for ancillary relief certainly by July of that year. Mr Preston, who was then representing Mr Edwards, wrote a letter of 19th July raising his concerns that his client was depressed and not fit for litigation. He produced a certificate from a general practitioner called Dr Barth at a resort in Austria, saying that the husband was suffering from exogenous depression. That assertion was roundly rejected by Mr Tooth, for the wife, who said on instructions that it was simply a strategy that the husband was resorting to to avoid his responsibilities in the litigation to give full and frank disclosure of his financial affairs.
2. Some time thereafter Mr Edwards moved to Messrs Payne Hicks Beach. When he resumed his professional relationship with Mr Preston at the beginning of this year, Mr Preston wrote to Mr Tooth reiterating and indeed augmenting his concerns as to his client's psychiatric state. On that occasion he produced a letter from Mr Edwards' GP, Dr Wheeler, and also a letter from a psychiatrist, Dr Rowan, to whom Dr Wheeler had referred the patient.
3. We have a little glimpse of Mr Edwards' psychiatric state in the middle of this year, since from oral evidence given by Dr Wheeler we know that he saw his patient in July and thought him materially better and more or less fit to litigate. However, intimation was given that an application would be made to adjourn the fixture of the ancillary relief proceedings (9th December, time estimate five days plus) at the pre-trial review fixed for 12th November. The intimation made it plain that the adjournment would be sought on the grounds of the husband's psychiatric condition.
4. Accordingly, on 30th September the wife filed an affidavit in which she set out her case in opposition to the application. She said in paragraph 2 that she was convinced that her husband was either faking or massively overstating his depression. She pointed to the fact that he had a degree in psychology and he admitted that this helped him enormously in his capacity to manage his life. She pointed to the view of a business colleague that he had effective techniques for crisis management.
5. She then specified, in paragraph 3, the husband's strategy when facing an Inland Revenue inquiry in the mid-1990s. She asserted that in collaboration with his principal financial adviser, a Mr Colin Vandervell, they hatched the scheme of putting Mr Vandervell into bat on the basis that Mr Edwards was too ill. She says that he produced a psychiatrist's report at that stage saying that he suffered from depression, was incapable of making decisions and that his memory had been affected.
6. She then, in the remainder of her affidavit, described how he had presented to her through the preceding months, seeming to be perfectly in control of himself and of his affairs. She again in paragraph 7 introduced Mr Vandervell who had, according to her, foreshadowed the production of a medical report to avoid trial.
7. She summed up, in paragraph 9, by saying that it was a deliberate tactic to delay the hearing. Then she came on in paragraphs 11 and 12 to describe the effect upon her that all this manoeuvring was having. She described herself as being under treatment, both in London and in Monaco. She said that she was receiving regular psychotherapy from a Dr Campbell, and she could not bear a delay of many months to the fixture. She said that she had already been waiting 18 months and there had been six expensive court hearings.
8. So issue was joined. Before the judge oral evidence was given by the consultant psychiatrist, to whom the husband had been referred on 24th September. He is Dr McPhillips and he practices at the Cromwell Hospital. On that day he saw the husband for an hour. He had very little history other than that gleaned from the patient and he had no medical records. He is of course extremely experienced at making psychiatric assessments, and he was in no doubt at all that the husband was clinically depressed, severely depressed and in need of inpatient treatment at the Cromwell over the course of maybe four to six weeks with outpatient follow-up treatment over the course of some three to six months thereafter. He did not know of a number of material considerations to a rounded assessment. He did not know of the wife's case. He did not know that the husband had a degree in psychology. It seems that after that consultation Dr McPhillips has been in fairly regular telephone communication with Mr Edwards, and has sought to persuade him to admit to the Cromwell. Mr Edwards has consistently declined. Possibly a consideration that influences him is the risk that he might expose himself to United Kingdom tax liabilities if he underwent a sustained course of treatment in London. That seems to have been one reason why he subsequent to his consultation with Dr Phillips admitted himself to a clinic in Zurich. We only know of that from a letter from Mr Preston to Mr Tooth of 7th November. We only know that he found the surroundings uncongenial and discharged himself and returned to Monaco.
9. What of the oral evidence? Dr McPhillips, whilst making sensible concessions in response to all the points put to him by Mr Pointer, nonetheless held firmly to the view that Mr Edwards was simply not fit to litigate and not fit to give instructions to his solicitors. Dr Wheeler, although not a specialist, is clearly a worldly general practitioner who has looked after both the husband and the wife for a considerable period. He it was who was able to chart the ups and downs in the husband's mental health over this year from the consultation in January, to the meeting in July, to telephone calls in October. He too shared the view of Dr McPhillips that Mr Edwards was not fit to litigate or to give instructions. Because of his longer experience of this patient, he was able to tell the judge of earlier times. For instance, when Mr Pocock asked him (page 27, line 44):

"You have seen him at two low points in the last two years, have you not?

A. I've seen him at low points before that too."

When asked by Mr Pointer for his view as to whether the present state of depression was reactive to the divorce or the money matters or what, he said this (page 26, line 41):

"... my experience with Guy Edwards has been that when he has come under pressure in the past, he's retracted, he's withdrawn into himself, he's tried to avoid the problems, and without treatment, really, he's come out of that after the problems have gone away."

That view of the patient is, of course, broadly consistent with the view presented by the wife in paragraph 2 of her affidavit of 30th September.

10. Having heard this evidence and the submissions from the parties, the judge acceded to the application for adjournment. She said that the case should be adjourned to the first available date after 1st October 2003. She said that the fixture for 9th December should stand pending the wife's application to this court to challenge the order. She said that if her order stood, the fixture on the 9th should be used at least to determine subsidiary issues. She said that there should be two days allowed and that the husband should attend on the 9th unless he was an inpatient, and that he should produce evidence as to his treatment or reasons for its non-commencement. She said that the application to commit the second respondent should be listed for directions. Finally, she said that there should be a further directions hearing in May 2003.
11. Mr Pointer in his challenge really makes these points. He says, first of all, the judge has fallen into the error of regarding the expert evidence as being decisive of the issue. The judge has accepted the evidence of Dr Wheeler and Dr McPhillips, and without further debate has simply concluded ergo adjournment is inevitable. That, says Mr Pointer, is not the proper approach. The decision required a much fuller appraisal of a number of other material considerations.
12. The judge in accepting the evidence of the two doctors expressly said that she was accepting, as she had to be, the view that this was not a sham. The doctors had not been deceived. But was it open to her to reach that conclusion on the expert evidence alone? After all, the case that the husband was shamming came from the wife. She had put it on oath. There was no contrary evidence and she had not been cross-examined. The experts had not had time or opportunity in making their assessment of the husband's bona fides to consider such evidence as the wife adduced that he was shamming.
13. It seems to me that there is force in this criticism from Mr Pointer. The issue whether or not the husband was a sham had to be determined on an investigation of the history relied upon by the wife, as well as an investigation of her evidence as to his presentation to her and within the family throughout the period when he was asserting to the experts psychiatric disability. That case could not be concluded against the wife without her having a fair opportunity to have her evidence evaluated. Either the judge had to take it at its face value or he had to examine it more critically under attack.
14. The second complaint seems to me also to have validity. The wife's evidence in paragraphs 11 and 12, which I have already summarised, was corroborated by her general practitioner, Dr Wheeler. He was asked by Mr Pointer (page 26 line 49):

"How is [Mrs Edwards] coping with what are proving to be wearisomely difficult divorce proceedings than she was expecting?

A. Having a pretty hard time. She's under the care of a psychologist in Oxford and she's had a very stressful time. I've seen her a couple of times in the last year with stress-related problems."

Then on the following page:

"How do you think she would cope with this case being stood over for another year, or 11 months, whatever it may be, until it could be heard, were that to be the outcome of today's hearing?

A. Well she may handle it quite well, but I suspect she'll probably collapse, to be honest."

As Mr Pointer complains, the judge in her judgment did advert to the wife's stressful condition at the outset of her judgment. She said that she had great sympathy for the wife, who had not found the proceedings easy. She continued:

"She has suffered from stress and continues to do so; and is at the moment receiving help from a psychoanalyst and I believe a psychologist."

At the foot of the page she reiterated that she had sympathy with the wife's position.

15. But as Mr Pointer validly submits, this record of fact, namely the wife's present state, is simply introduced on page 1 and not thereafter referred to. What was so important, in my opinion, was not just the assertion of her current level of stress, but the prediction as to her future state should the application succeed. There was the experienced general practitioner saying that the probable development would be collapse. So the judge, if she was to hold the scale fairly between the two, had to recognise that not only was the refusal of the application inevitably going to impose additional stress on the husband, but that the grant of the application was probably going to lead to the wife's collapse. That necessary balancing exercise is simply absent from the judgment.
16. So for those two reasons, I think Mr Pointer succeeds in establishing an erroneous approach on the part of the judge. He says that her judgment was plainly wrong. That is putting it strong. I think that I would prefer to say that on this occasion the judge erred, putting too much emphasis on the forensic expertise and not discerning that the wife's case that the husband was simply a fraud required a greater acknowledgement and a profounder investigation. I think that equally she erred in failing to balance the consequences of a 12-month adjournment on the wife's already fragile state of health.
17. These cases do present enormous difficulty for trial judges. If at the end of the day the wife's case that the husband is a fraud proves to be misplaced on this occasion, the court still has to wrestle with the problem of how to do justice by bringing to conclusion highly stressful proceedings involving two psychiatrically frail human beings.
18. Mr Pointer makes a number of forceful submissions in relation to the husband's track record. He could have had treatment at the Priory in January 2002, but he did not avail himself of that offer. He could have had treatment in the Cromwell in the autumn. He did not avail himself. He might have persevered in Zurich, but he did not. There must be a huge question mark over his willingness to submit to psychiatric treatment of the character described by Dr McPhillips.
19. So there is the spectre that whatever the reality in October 2003 there will be no useful progress. The husband will still be asserting depression and his solicitors will still be saying, We cannot get instructions. he asserts that he lies in some limbo, between not well enough to give instructions but not ill enough to require a guardian.
20. These are very difficult circumstances. In my judgment the guiding principle, if there be one, is that the courts must do all in their power to bring these stressful proceedings to a conclusion at the earliest possible date. As a matter of common sense, neither of these two is going to achieve any sort of emotional or psychiatric equilibrium or well-being until these proceedings are concluded. Putting off the proceedings is simply putting off the day when each of them can begin the journey of recovery.
21. So for all those reasons, I conclude that the order made by the judge on 12th November was not the correct order. I think she should have refused the application for adjournment and that is the order which I think we should today make, having allowed this appeal.
22. I would also be inclined to make the order that Mr Pointer abandoned, having failed on the first issue, namely an order for the attendance of Mr Vandervell. He is the second respondent. He has been given notice of this hearing today. He has had the opportunity of appearing by counsel. He has elected to be here by solicitors to note the proceedings. I can understand that choice, in all the circumstances. Accordingly, I would say that the order for him to attend on the 9th is an order that should stand, unless before the conclusion of this week he has made application to a judge of the Family Division for the discharge or variation of the order for his attendance.
23. LORD JUSTICE JONATHAN PARKER: I agree that this appeal should be allowed for the reasons my Lord has given, and I also agree with the order which he has proposed.

ORDER: Appeal allowed with costs.

(Order not part of approved judgment)