England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL FAMILY COURT IN LONDON
His Honour Judge Brasse
FD06D05405

		Royal Courts of Justice Strand, London, WC2A 2LL
		18/05/2017

Sir Ernest Ryder, Senior President:

1. The Respondent wife makes application for payment-out of £30,000 that was ordered to be paid into court by Gloster and Macur LJJ on 14 July 2016. The basis for the application for payment-out to the wife is that she is still owed more than that sum by the Respondent Husband and the husband lost his appeal against the Hadkinson order to which the £30,000 payment relates.
2. The husband opposes the payment-out on the basis that a) the purpose behind the direction was to provide legal representation which was provided pro bono rather than to fund any indebtedness and b) in any event, the wife has not been frank in her approach to this and other courts about the outstanding debt. The husband further submits that he should have the right to prioritise repayment of his debts to best serve his own interests which would include, for example, purging his contempt so that he might regain access to the court.
3. My Lord, Beatson LJ and I have decided to determine the application on the written evidence and submissions provided by the parties. The submissions are based in well rehearsed arguments already made by the parties during the oral contested appeal hearing and the subsequent written application to re-open the same. It would be disproportionate to provide an opportunity for a further oral hearing thereby increasing the costs and indebtedness that exists in order to hear the same arguments again.
4. This application was foreshadowed in the court's first judgment; Assoun [2017] EWCA 21 at [11] and [40]. In that judgment the court referred expressly to the purpose originally intended by Gloster LJ at [6] and by Gloster LJ and Macur LJ at [9]. The plain meaning of the words used by Gloster LJ in adjourning the permission to appeal hearing to a two judge court on 19 May 2016 was that the payment into court was to reflect a significant part of the debt owed by the husband to the wife. I acknowledge that the order made on 14 July 2016 (after a hearing on 13 July 2016) described the payment as being "security for the Respondent's costs of this appeal", but there was nothing then said by the court to contradict the intention originally expressed. I also acknowledge that the wife does not ask for payment-out to meet her costs because she has been represented pro bono.
5. In my judgment those facts do not undermine the bases upon which the court permitted the husband to proceed with his appeal which were that he file and serve full and frank evidence of his financial circumstances and pay a proportion of what he owed into court. The latter reasoning carries with it the clear implication that if he lost the appeal, as he did, the monies paid-in reflected part of his debt and could be paid to the wife in part satisfaction of the same. I do not accept that the court's intention was restricted in the way submitted by the husband. There were at least two bases for the payment-in one of which was that payment-out to the wife would reduce the husband's indebtedness in the event that the husband's appeal was dismissed.
6. The husband's second ground of objection would require this court to admit materials that were not made available to it on the hearing of the appeal in December 2016. The husband seeks to compare and contrast materials used in the courts of Texas with those disclosed to this court to establish that the wife is 'untrustworthy'. That is not an acceptable process. The husband has already been denied the opportunity to re-open the appeal and to rely upon new evidence: (Assoun [No 2] [2017] EWCA Civ 179). The second ground of objection to the payment-out is merely an attempt to get this court to change its mind. A costs application is not an appropriate vehicle for the husband to do that. None of the submissions that the husband makes about the wife's indebtedness, or the compliance or otherwise of the parties with the allocation provided for by the courts in Texas can properly be litigated before this court now that the appeal is concluded.
7. Finally, the husband submits that he should have the right to choose how to prioritise his debt repayments. That submission is an attempt to avoid the answers I have given to the two grounds of objection that he raises. This court has heard and dismissed his appeal for the reasons given. Any argument about prioritisation on the facts of this case is rooted in the appeal decision that has been made. Whatever the merits of a general submission that the husband should be afforded every opportunity to purge his contempt, on the facts of this case he must discharge his debt to the wife. The payment-out of the monies held in court will satisfy that imperative.
8. I would allow this application and direct the payment-out to the wife of the sum of £30,000 paid into court together with the interest that has accrued on the same

Lord Justice Beatson:

9. I agree.