England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVSION
(MR JUSTICE PARKER)

		Royal Courts of Justice Strand, London, WC2A 2LL
		24th October 2012

Lord Justice Thorpe:

1. This is the oral hearing on notice directed by my order of 9 August 2012, having heard Mr Malialis as a litigant in person seeking permission to appeal various orders made by Barker J in ancillary relief proceedings between him and his former wife.
2. In his written submissions to this court he has on more than one occasion described the ancillary relief proceedings between himself and his wife as a disaster, and I have some sympathy with that submission. It is unnecessary to delve deep into the litigation history. The starkest feature of the history is that the trial and subsequent written submissions were with the judge in December 2010 but her judgment was not delivered until December 2011. That is a highly unusual feature of an ancillary relief trial in front of a judge of the division, and it is easily explained by the fact that the judge was quite seriously ill immediately after December 2010 and did not return to the Bench until I think the early spring.
3. But Mr Malialis has drawn out the communication between his legal team and the judge's clerk over the material period, and what I think is regrettable is not so much the duration of the delay as the fact that the judge's clerk was, on frequent occasions, giving assurances as to the handing down of the awaited judgment, which were all empty. For example, on 23 May the judge's clerk informed Mr Malialis's counsel's clerk that the draft judgment would be available or circulating in the week commencing 23 May 2011. That did not happen. On 30 June the judge's clerk promised the judgment "within the next ten days, hopefully sooner"; an assurance unfulfilled. On 11 July there was a communication from the judge's clerk to the effect that the judge had been working on the judgment all weekend and anticipated circulation "this week". Then on 5 September the applicant's counsel, appearing before the judge in another case, was assured by the judge that she would be in a position, or hoped to be in a position, to hand down in the week commencing 9 September. That did not happen. On 30 September the judge's clerk informed the applicant's counsel that judgment would be sent out in draft in the week commencing 1 October. That did not happen, and accordingly Mr Malialis's counsel on 30 November wrote a letter to the President expressing his considerable concern.
4. Of course Mr Malialis, like any other litigant, is entitled to judgment. He particularly needed it because he was finding it difficult to plan and manage his financial affairs without knowing the extent of his liabilities to his former wife. The communication to the President was not acknowledged or answered, but at least we can infer that it had some influence on the arrival of the judgment some two weeks later.
5. It seems to me that the repeated assurances, five in number, all broken, are just the sort of thing that cause not only frustration in the litigants but a loss of confidence in the process, and it is not surprising to me that in his application to this court Mr Malialis has frequently asserted that the twelve months between trial and judgment contributed to, or caused, a number of errors on the part of the judge, a number of erroneous conclusions, because she had simply forgotten the immediacy of the oral evidence that she had heard from the parties.
6. The judge's response to that is that she had contemporaneously taken a careful note of her impressions and noted provisional conclusions on the oral evidence and the demeanour and credibility of the parties. Therefore what she came to write a year later was either part written earlier or refreshed from contemporaneous notes.
7. Be that as it may, it is the presentation of the delay to the parties which has given me some cause for concern.
8. Once the judgment was in circulation I am in no doubt at all that the judge took enormous care to digest any criticisms or suggestion of errors of commission or omission that came from the respective legal teams, Mr Johnstone for the husband, Mr Sawtell for the wife. Certainly she convened a hearing on 3 February when she delivered an oral judgment on the various points that were in debate and dispute between counsel, after which she was able to circulate the final version of her first circulated judgment, dated 27 February but not perfected until June 2012. Her third judgment was dated 28 May, in which she dealt with points arising from the circulation of her final draft.
9. So it is highly unusual to find such a protracted process following the hand-down of a reserved judgment. It has founded further submissions of no confidence from Mr Malialis. On the other hand, it can be stated in the judge's favour that these three judgments simply demonstrate her commitment to absorb any comment or criticism from the parties and to ensure that she had spared no effort in her search for fairness.
10. As I explained on 9 August, it was quite impossible to comprehend or weigh Mr Malialis's submissions on a 20-minute without notice appointment, and we have now devoted the best part of a day to this oral hearing. There was an unusual provision in the order of the 9^th that we would restrict ourselves to permission today and if any resulting appeal were allowed we would hear that on Friday. However, it has become perfectly evident that such points as need to be dealt with by way of appeal can be dealt with today, and it would simply be wasteful of the time of this court, and expense to the parties, were we to assemble for a second day.
11. Despite all Mr Malialis's eloquence, I am not persuaded that the fundamental division ordered by the judge resulted from any misdirection in law or otherwise exceeded the generous ambit of her discretion. Thanks to the scrutiny of the order by Lewison LJ it became apparent that the judge's decisions on drafting points advanced by counsel and incorporated in her third judgment of 28 May were erroneous. She rejected, and in my view wrongly rejected, submissions made by Mr Johnstone to limit the period in which Mr Malialis would be, or might be, kept out of his allotted share of assets that the judge had ordered for division. Mr Sawtell did his best to support the judge, but in the end accepted that the decision she had taken on the rival argument might result in his client receiving not just indemnity against potential future liability but a windfall.
12. We heard argument too on the judge's decision to order Mr Malialis to pay a sum of £50,000 towards the applicant's costs. Her reasons for so doing are stated between paragraphs 49 and 54 of her judgment of 3 February. At first blush, I was concerned that she had nowhere directed herself to the provisions of Rule 28.3 of the Family Procedure Rules 2010, but Mr Sawtell directed our attention to the written submissions which he and Mr Johnstone had put before the judge in preparation for that hearing. The submissions draw fullest attention to the relevant rule and the circumstances in which departure from the no order principle may be justified. It is quite clear that the judge followed that regime, albeit without reference to the signpost.
13. Mr Johnstone sought costs in favour of Mr Malialis on the basis that the wife had put her case ridiculously high and had further brought to the hearing five or so lever arch files that were never even opened. Mr Sawtell's application for a proportion of the wife's costs rested on his submission that the husband had in a number of respects been guilty of litigation misconduct. The judge preferred the submissions of Mr Sawtell; in the area of costs she had a particularly wide discretion, and I would be very far from concluding that her decision even approached the bounds of her discretion.
14. So coming to conclusion, I am of the view that we should grant permission and that we should allow the appeal to the extent of redrafting aspects of the order which are, in my opinion, plainly too favourable to the wife. So, going through the order, the first change I would propose is to a recital at the head of page 2 which opens with the words "And upon the Court expecting". From that paragraph I would delete subparagraphs (b) and (c), and that consequentially makes it unnecessary to designate the first as subparagraph (a). So it is quite simply:



"Upon the Court expecting the Respondent to use his best endeavours to procure the release of the Petitioner from any liability in respect of liabilities under any Laiki bank guarantee he has caused to come into being."

15. There is an important addition to the second undertaking which immediately follows. There, in line 2, the two words "any such" preceding the final word "liability" would be struck out and replaced with "residual". So it will read: "will indemnify her against residual liability as defined" and then there will be a subparagraph to this effect:

"Residual liability means the difference between:

1) the amount of any liability or potential liability to Laiki bank undertaking by the petitioner under any guarantee, and

2) the amount which can reasonably be expected to be recovered by the Laiki bank from the principal debtor whose debt is guaranteed by any such guarantee."

16. Proceeding now to paragraph 5, again, as with the first recital to which I have referred, I would strike out paragraphs (b) and (c) leaving only the single liability defined as before, namely any liability in respect of liabilities under any Laiki bank guarantee.
17. Then in the final paragraph, the second line "the respondent shall pay to the petitioner", and then insert the words:

"by way of indemnity a lump sum equivalent to the residual liability as defined above."

18. Those then are the necessary revisions to the order below and I consider that the making of those revisions, the tightening of the order, is as much as Mr Malialis has demonstrated requires correction.

Lord Justice Lewison:

19. I agree.

Mr Justice Hedley:

20. I also agree.

Order: Application granted; appeal allowed subject to revisions