England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand London, WC2
		6th December 2005

Tuesday, 6th December 2005

1. LORD JUSTICE THORPE: Mr Bruce Blair QC is here this morning to complain of an order made by Singer J on 28th July 2005 in ancillary relief proceedings between Wendy and Nael El Farargy. It is only necessary to refer to one earlier stage in the history which was a hearing before the same judge in April when, seemingly, good sense and reality engendered an agreement between leading counsel then instructed that Mrs El Farargy's short-term needs should be met by a facility to draw down on a bond in the Isle of Man. When the case came back to him in July, different leading counsel then instructed for the husband took the point that the expression of the April agreement did not constitute an obligation binding on the husband, certainly within the court's statutory jurisdiction to make interim provision under the Matrimonial Causes Act 1973 or any other statutory provision. Singer J rejected that submission and he explained himself, subsequently refusing permission to appeal, when he wrote:

"My order promotes a mechanism designed to enable [the wife] to receive the payment from a frozen asset agreed between the parties (both represented by leading counsel) at the hearing on 29/4/05 to obviate a maintenance pending suit application. [The husband's] case was (and is) that the asset, though in his name, is beneficially owned by a company. This notwithstanding he agreed the relevant terms of that earlier order.

On the present state of the evidence I see no reason why he should not abide by his agreement and believe I have jurisdiction so to order."

2. Mr Blair's simple and powerful submission is that the Judge was simply wrong in that belief. The Judge's only statutory power was to make an order under section 22 of the Matrimonial Causes Act 1973 that he expressly disavowed in the course of his brief judgment. So the validity of the criticism cannot be denied. But the question of whether or not permission should be granted must be judged in the context of the litigation as a whole. There can be no doubt at all that the April agreement was one entered into freely and there is no doubt at all that the purpose of the agreement was to compromise a potential claim for maintenance pending suit and there is no doubt at all that the husband signed up to the mechanism that enabled the wife to look to the bond for her short-term needs. The manoeuvre of 28th July was, on any view, deeply unattractive and the Judge's instinct to hold the husband to his agreement rested on the surest of foundations. Since then, the following needs to be noted:

1. That the order made by the Judge on 28th July has been of zero benefit to the wife. She has received nothing since April and nothing since July.

2. The order as entered has, accordingly, been of no disbenefit to the husband. He cannot point to having suffered any detriment derived from the order.

3. There has been an important fixture in the family division in October and November when it was intended that the court should make conclusive findings on the core factual dispute between the parties. That essentially involves the investigation of the deployment of approximately $20 million of monies received from successful litigation brought by the husband and his companies and, secondly, the beneficial entitlement to that fund. That essential investigation was frustrated for reasons which we have not fully investigated.

4. The next point, which is one of importance, is that the outcome of that abortive hearing was at least a direction for final hearing in the Family Division with a 15 day time estimate. Unfortunately, delay over the course of the last three weeks in perfecting the order has delayed the setting down of the case, but there is still a reasonable hope that it will be listed before the end of the Trinity term.

5. The next point to observe is that at that vital final hearing all issues between the parties should be conclusively determined by a judge. Amongst the less important of the issues will be the amount of the transient support that the wife should have received between April 2005 and July 2006. If she has still received nothing by July 2006, that will be a material augmentation of her capital entitlement. If, miraculously, she should receive from the husband all due under the April agreement and all due between the date of delayed payment and the date of final hearing, and if it should emerge that that was beyond her entitlement, then the Judge has the power to make the required adjustment.

6. The last point I would stress is that these parties have already spent completely disproportionate amounts on this litigation to the point that suggests to me that the proceedings are driven, at least on one side, by folly, and there is perhaps an obligation on the judges in the Family Division and judges in this court to check obvious and gross wastage of family money on pointless litigation.

3. So, lastly, I turn to the interests of this court. The volume of applications and appeals in family work continues to grow. The court is under pressure in order to maintain delivery of determinations consistent with the needs of the litigants, and particularly the children of the litigants. Therefore, there is an obligation on the court not to admit to fuller review cases which may have some technical validity but which in the overall context of the case, and particularly the realities, can be seen to be either strategy or waste or immaterial to the ultimate determination to be achieved at the final hearing.
4. So for all those reasons, although I recognise the force of Mr Blair's criticism, I would, as a matter of discretion and as a matter of proportionality, refuse the permission application.
5. LORD JUSTICE SCOTT BAKER: I agree.
6. SIR MARTIN NOURSE: I also agree.
(Respondent's costs ordered.)