England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)

		Royal Courts of Justice The Strand London
		23 September 2004

Thursday 23 September 2004

LORD JUSTICE THORPE:

1. This is an unusual application to strike out an appeal for which permission was granted by this court on 14 June 2004. The grant of permission on that date was conditional upon the respondent husband paying within seven days (a) £24,500 to the wife's solicitors, being the assessed costs of two previous hearings; (b) £15,500 to the wife's solicitors, being monies on account of two costs orders that were still pending assessment; (c) the sum of £13,500 to the wife's solicitors, being the summarily assessed amount of that hearing on 14 June; and (d) £90,000 into solicitors' joint account, being (as the order was drawn) "the amount intended to cover the petitioner's costs for the forthcoming Family Division hearing".
2. The other relief obtained by the husband on that date was a stay of the order of Singer J that he pay £39,000 per month by way of maintenance pending suit. However, the stay was only in respect of the balance in excess of £25,000 per month, so that the stay was worth £14,000 per month to the husband. Mr Umezuruike, who appeared as junior counsel on 14 June, took a conscientious note of proceedings and so he is able to tell us today that Mr Scott QC at some stage (and maybe it was when the mould was not set) tried to persuade the court that the future maintenance pending suit that was not the subject of the stay, namely £25,000 per month, should also be made a condition of the grant of permission. Mr Umezuruike's note records me as having refused on the ground that to make a permission conditional upon future payments of maintenance pending suit would create monitoring difficulties and there would be foreseeable disputes as to whether the money had or had not been promptly paid. However, a very clear warning was given to the husband that if he defaulted in payment of £25,000 per month, the future instalments as they fell due, this court would take a very dim view.
3. The outcome of 14 June in summary was a substantial gain for the husband. He achieved permission to appeal a series of orders in the Family Division quantifying his maintenance obligations to his wife, but only if he paid a sum of roughly £150,000 within seven days. He also achieved the benefit of a stay in respect of the balance of Singer J's order above £25,000. Thus, providing he paid the £150,000 within seven days, and providing he paid the £25,000 future instalments promptly as they fell due, he had achieved some substantial benefit pending the important fixture in the Family Division on 15 November 2004, which will establish definitively whether this court has any jurisdiction to determine disputed issues between this couple. On 15 November the husband's challenges to jurisdiction on all sorts of bases -- some more sophisticated, more complex and less plausible than others -- and his alternative plea that this court should decline jurisdiction on a forum non conveniens basis will be determined. The court made plain on 14 June that it had no intention of embarking on any appellate review of the quantum of maintenance pending suit fixed by the Family Division unless the determination of 15 November demonstrated that this is London business and therefore the court has an obligation to review the discretionary decision of the judges in the Family Division.
4. What has happened since? The husband, most unwisely, has ignored the very clear warning given to him on 14 June. Not a penny piece of maintenance has been paid to the wife or to her solicitors since that date. The order of the 14th was very specific as to how the £25,000 obligation should be discharged each month. £11,000 was to go to the wife's solicitors and £14,000 to the wife for her aliment. The wife has not received a penny; her solicitors have not received a penny. Worse than that, the arrears that were already three months old in June have not been paid either. I am not clear whether the court on 14 June was aware that no money had been paid since April. I suspect that if we had had that knowledge, an extension of paragraph 3 of the order would have been probable, at least to insert into that paragraph a seven day obligation to discharge the arrears between April and June.
5. Be that as it may, we are faced with a desperate situation. We have evidence from the wife that she is financially in a most precarious position. She has had to pawn her jewellery; she has had to borrow within her family; she has had to use and abuse her credit cards in order to survive; and she has threats both from her bank, who are entitled to foreclose on her for unpaid instalments under a loan scheme, and other creditors have taken active steps against her. The position of her solicitors in Birmingham is equally precarious. They have been unable to continue the preparation of the November 15th trial in accordance with the timetable set by Bennett J when he gave directions on 15 June. Steps which should have been timely taken have therefore not been taken. It is apparent that unless there is an immediate restoration of the cash flow to her solicitors, the trial on 15 November will simply be non-effective because there will have been no equality of arms and the wife will have been denied the essential legal services upon which preparation depends.
6. Mr Scott, who has consistently represented the wife, has filed a skeleton argument with the court this morning. It asserts in its introduction that the extraordinary complexity and expense of the litigation, not only in this jurisdiction but in Nigeria, has been brought about entirely by the husband's determination to see that the wife and the twin children, now 3 years of age, receive no financial support from him. Mr Scott adds that, in order to achieve this goal, the husband has demonstrated a willingness to use every imaginable tactical device both in this jurisdiction and in Nigeria.
7. That is a perfectly responsible and moderate introduction, given the whole sorry history of this case from its first inception to its present state. If any substantiation were required from the husband's own presentation to the court today, it is to be found in paragraph 13 of Mr Umezuruike's skeleton in which on instructions he asserts that "as a last resort the wife can seek assistance from a local authority".
8. The interrelationship between the payment of maintenance pending suit and the orderly litigation of the issues between the parties, both at first instance and at an appellate level, is obvious. Since decisions at first instance, particularly the decision of Holman J in A v A [2001] 1 FLR 377 and the later decision of Charles J in G v G [2003] 1 FLR 71, there is a precedent for the Family Division Judge to include in his assessment of maintenance pending suit a monthly sum which is to be paid separately to the wife's solicitors to enable them to prepare the pending litigation. Singer J adopted that precedent in making the order which he did in December 2003. Thus the consequence of a breach of an order for maintenance pending suit is to obstruct, or even to deprive, the wife of her proper opportunity to litigate and to prepare a case in defence of a hostile strike brought by a husband.
9. Accordingly, I have no difficulty in concluding that the husband's conduct throughout, and particularly his conduct since 14 June, is sufficient to satisfy the condition attached by CPR 52.9(2) to the operation of the court's powers under Rule 52.9(1). The terms of 59.9(2) are that the court will only exercise its powers under paragraph (1) where there is a compelling reason for doing so. The compelling reason is absolutely manifest. Unless this court acts to censure the husband's conduct since 14 June, there will effectively be no determination on anything like equality of arms on 15 November.
10. By way of digression I remark upon the terms of 52.9(3), which prevent the court from exercising its powers under 52.9(1)(b) or (c) in any case where the party was present at the hearing at which permission was given.
11. It is entirely fortuitous that the wife was present in court on 14 June. She might just as well have been at her home in Golders Green, leaving Mr Scott to deal with the case. It seems bizarre in the extreme that the mere fortuitous presence of the wife at that hearing, at which both parties were represented by leading counsel, prevents us today from setting aside the permission to appeal in whole or in part, or imposing, or varying conditions upon which an appeal may be brought. It would have been more natural and would better have fitted the circumstances of the case had we been able to exercise the power provided by 52.9(1)(c). As it is we are restricted to the power provided by 52.9(a), namely to strike out in whole or part the appeal notice.
12. Mr Scott has helpfully defined the order which he seeks in paragraph 30 of his skeleton argument. There can be no doubt at all that sub-paragraph (1) of his proffered order is straightforward. He seeks the payment out to the wife's solicitors of the whole sum of £90,000 held in solicitors' joint account in compliance with paragraph 3(d) of the order of the court of 14 June. I accept Mr Umezuruike's submission that it was the intention of the court on 14 June that that sum should remain in solicitors' joint account pending the outcome of the hearing on 15 November. But it was also the intention of the court on 14 June that the wife's solicitors would receive all sums due to them under the orders made by Singer J, save in relation to the monthly sum of £14,000 that was stayed between June and November 2004. The court's expectation in that regard having been woefully disappointed, it seems to me perfectly obvious that it is not only open to us, but it is entirely necessary that we should release to the wife's solicitors the sum of £90,000 towards the total sum of £111,378, which is the grand total of the arrears now due to them under Singer J's order.
13. The second limb of Mr Scott's draft is that the appeal notice should be struck out unless the husband pays, within a certain time to be defined, three sums. The first of those sums is the balance between the £90,000 which will come under (i) and the grand total arrears of £111,378. That sum, £21,378, is in respect of the arrears of the legal fees' element of maintenance pending suit.
14. In order to make that order sought by paragraph (ii)(b) of Mr Scott's draft, we would in effect have to deprive the husband of the benefit of the stay which he obtained on 14 June. Should we do so? Mr Umezuruike says that we should not revisit territory that we determined on that day in the exercise of our discretion. However, it is, in my judgment, open to us to do so. We would not be varying the terms of the grant of permission, we would only be varying the terms of the stay. There is nothing within Rule 52.9 to deter us from so doing.
15. I also conclude, in the exercise of my discretion, that we should do so, for we must measure and pass judgment upon the husband's lamentable conduct since 14 June in failing to pay the £25,000 per month, which we warned him would be very badly viewed if unpaid. Accordingly, I would accede to paragraph (ii)(a) of Mr Scott's draft.
16. I would have no difficulty at all in respect of paragraph (ii)(b), which seeks the payment of £67,996 in respect of the aliment element, that is to say the monthly money due to the wife to enable her to maintain her London home and her way of life. Equally, I would have no difficulty at all (although we have not heard Mr Umezuruike on quantum) in accepting the principle underlying paragraph (ii)(c), namely that the wife should have her costs of this application summarily assessed and immediately paid.
17. I come finally to paragraph (iii) of Mr Scott's order, which seeks that the appeal be struck out unless the husband pays in full both elements of the maintenance pending suit order as they fall due. I would add to that "in the months of September and October 2004". All we are imposing under paragraph (iii) of the proposed order is that there be a strike-out unless the husband pays the two instalments of future maintenance pending suit that will fall due between today and the fixture in the Family Division. Mr Scott has told us that in each month the due date is the 28th, and therefore the obligation -- let everybody be clear about this -- is to pay the £39,000 for the month of September on 28 September, and the £39,000 due for the month of October on 28 October. Thereafter, the position will be entirely dependent on the outcome of the trial on 15 November. Obviously if the husband were to succeed on any of the grounds that he advances for challenging jurisdiction, or were he to succeed on his forum non conveniens application, then this ceases to be London business and the order falls away. Those are the orders which I would propose.
18. LORD JUSTICE POTTER: I agree. This is a case different from the previous decisions of the Court of Appeal to which we have been referred, in which the court considered the nature and application of the requirement in CPR 52.9(2) that the court will only exercise its powers to strike out an appeal notice under 52.9(1)(a) when satisfied that there is a compelling reason to do so. I refer to the decisions in Hammond Suddard Solicitors v Agrichem International Holdings Ltd [2001] EWCA Civ 2065, Carr v Barr Cotton [2002] EWCA Civ 789, and Bell Electric Ltd v Aweco Appliance Systems GmbH & Co KG [2002] EWCA Civ 1501. In those cases the court was concerned with the question whether non-compliance with the orders of the judge below relating to the very judgment sum appealed from, or in relation to the costs of those proceedings below, was in particular circumstances a sufficient compelling reason to make an order under 52.9(1)(c) with a consequent order under 52.9(1)(a) if the conditions imposed in relation to the appeal were not carried out.
19. However, as I see it, that does not inhibit the court in an appropriate case from dealing with the matter as an application for an order under 52.9(1)(a) granted in an unless form.
20. In this case the question is whether or not the husband's persistent breaches in relation to interim aliment and other orders made by this court on the basis that the marriage between the parties is indeed to be regarded as valid until the appeal is heard, constitutes a compelling reason to make the order sought.
21. I am satisfied on the history of these proceedings that the husband's attitude is wholly attritional and has been adopted in an effort to avoid paying a penny piece to his wife and their twin children, whether or not the outcome of the appeal is favourable to him. It is plain that he has no real regard for the binding nature of the court's orders, let alone that he will comply following any unfavourable outcome to the appeal and pay his wife the sums which he will then owe to her on the basis that the marriage is indeed valid.
22. I also consider that the husband is concerned, if he can, to see that his wife is deprived of the means to defend the appeal. Those means can only be provided for if the orders of which he is in breach are complied with.
23. In my view those circumstances constitute a compelling reason why the order sought by Mr Scott should be made. I agree with the judgment of Thorpe LJ.
ORDER: (Not part of judgment)

Application granted; in accordance with paragraph 30 of the skeleton argument on behalf of the applicant (i) the sum of £90,000 to be paid out of the solicitors' joint account to the wife's solicitors by 4pm on Thursday 7 October 2004; any interest on the £90,000 to be returned to the husband; (ii) the appeal notice to be struck out unless the husband pays within 14 days (a) £21,378 in respect of arrears of the legal fees element of the maintenance pending suit; (b) £67,996 in respect of the aliment element of the maintenance pending suit order; (c) the wife's costs of the application, assessed in the sum of £8,227.64, to be paid by the husband within fourteen days; (iii) the appeal notice to be struck out unless the husband pays in full both elements of the maintenance pending suit order (£39,000) as they fall due on 28 September 2004 and 28 October 2004.

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