England and Wales Family Court Decisions (other Judges)

IN THE PORTSMOUTH FAMILY COURT                                Case Number GU13D00045

 

B E T W E E N:

 

                                           VIVIEN WELCH                         Applicant  

 

                                                    - and -

 

                                            DENIS WELCH                          Respondent

 

 

 

Written Judgment of His Honour Judge Edward Hess dated 9^th March 2016

 

 

 

1. This judgment relates to a number of outstanding applications (in relation to which I heard submissions on 2^nd March 2016) in a long running dispute between Mrs Vivien Welch (to whom I shall refer as “the wife”) and Mr Denis Welch (to whom I shall refer as “the husband”). I use these terms for ease of reference, although the parties have in fact been divorced for some time.

 

 

Overall impression of the parties

 

 

2. I have had cause to hear both the wife and the husband giving evidence, and being subjected to detailed cross-examination, on a number of occasions in the course of this litigation and I have received submissions from the wife as litigant-in-person on numerous occasions. The overall impression I have of them (which is relevant to the assessment of the applications before me now) is as follows.

 

 

3. The wife is the most indefatigable of litigants. Defeat just seems to spur her on to further action with a fixed and obsessive view that she is right and that she will in due course be proved right in the courts. She is articulate (and on initial encounter reasonably convincing) in her presentation, with some knowledge of the law gained from her litigation experience, but she knows not self-doubt and severely lacks self-appraisal. The wife is motivated, at least in part, by vengeful thoughts against the husband. She wishes to see him harmed. She has told me at various times in the course of this litigation that she intends for him to be prosecuted for fraud and perjury in England and in Singapore and that the Attorney-General has interested himself in the case in some way. She told Holman J that she wished to bring a civil claim against the husband in the Queen’s Bench Division or in Singapore.

 

 

4. The wife told me on 2^nd March 2016 that she believed the Crown Prosecution Service in England are in possession of devastatingly important documents (which are too important for her to have kept copies to show me) and are on the verge of instituting a criminal prosecution of the husband. If this is the case, then I have seen no evidence of it, and I regard this as highly improbable. If it is not the case then it is troubling that the wife believes that it is the case.

 

 

5. The husband, in contrast, has made a more favourable impression on me. I accept him as an honest man, whose kindness to the wife has been appallingly unappreciated. He has borne the burdens of this extensive litigation with admirable patience and forbearance.

 

 

Litigation history

 

 

6. It is appropriate for me to record in this judgment a little of the history of this dispute which has informed these overall impressions.

 

 

7. As part of my judgment (as then a District Judge at the Central Family Court) at the conclusion of the final hearing of the financial remedy hearings between the parties in September 2014, I described in some detail what happened in the period between 2002 and 2010. This can be summarised as follows. First, in 2002 the wife suffered a significant defeat before Baron J in the ancillary relief proceedings arising from her first divorce, Baron J having some harsh words for the wife in her judgment. Secondly, in 2007 she attempted to set aside the Baron J judgment and, in the teeth of strong adverse advice from her own high powered legal team, proceeded to a final hearing in 2008, and was heavily defeated with an indemnity costs award against her by His Honour Judge Seymour QC. Thirdly, when pursued by her own solicitors for their costs of that disastrous exercise, she counter-claimed in professional negligence and in 2010 this litigation likewise ended in a disastrous defeat with a costs award against her by Sharp J. It was plain from her evidence before me in 2014 that the wife still regarded this sequence of events as a gross injustice waiting to be corrected. The evidence strongly suggested that she was deluded in this belief.

 

 

8. I delivered my judgment on 9^th September 2014 and made a final order that day. I made some detailed and substantial adverse conduct findings against the wife which can be read in full in that judgment. With one or two small exceptions I rejected the allegations of material non-disclosure made by the husband against the wife. At this hearing the wife was represented by leading Counsel, Frank Feehan QC, and it cannot therefore be said that she did not have the opportunity to put her case fully. To the contrary, Mr Feehan QC put her case with great skill, but it failed as having no substance.

 

 

9. The wife believed and continues to believe that my conclusions represented a gross injustice to her and she has subsequently gone to enormous lengths to challenge and overturn my order of 9^th September 2014 as well as to obstruct its implementation.

 

 

10. In two very full judgments (dated 16^th and 23^rd February 2015) Roberts J rejected an application by the wife for permission to appeal my order of 9^th September 2014. Her judgment of 16^th February 2015 includes the following passage at paragraph 82):-

 

“I have reached the clear conclusion that the wife’s application for permission to appeal, on whatever basis it is advanced, is totally without merit…I would only add this word of warning to the wife… she should be aware that any further applications or appearances may well result in further orders for costs”

 

 

11. In a very full judgment (dated 31^st July 2015) Holman J, inter alia, dismissed an application by the wife to set aside my order of 9^th September 2014, describing the application as being “totally without merit”. He also made a Civil Restraint Order on that day, defined to last until 31^st July 2017, preventing the wife from making “any further application in any civil court concerning any matter involving or relating to or touching upon…proceedings under case number GU13D00045 without first obtaining permission from HHJ Hess in Portsmouth Family Court”. The judgment of 31^st July 2015 includes the following passage (at paragraph 57):-

 

“Mrs Welch has persistently made applications which are totally without merit…Frankly, this bitter and intense litigation must be closed to the maximum extent possible…It is quite extraordinarily destructive. It is phenomenally expensive.”

 

 

12. The matter has subsequently been before a single judge in the Court of Appeal on more than one occasion, but in an order dated 18^th February 2016 McCombe LJ described the appeal to the Court of Appeal as “being totally without merit” and wrote “this order brings to an end the wife’s wholly meritless attempts to frustrate the order”.

 

 

13. As well as these headline defeats for the wife, she has found time to contend a significant number of other pieces of satellite litigation - for example recusal applications by her against me and Roberts J, opposition to the publication of judgment transcripts and opposition to specific measures for the implementation of my order of 9^th September 2014 – and in each case the wife has had little or no success. She has from time to time had legal representation, but more often acted as a litigant-in-person. Through all of this the husband (who lives in Singapore) has had to instruct Solicitors and Counsel to deal with the latest dispute as it has arisen and has spent a good deal of money in the process. In all of this sometimes costs have been awarded against the wife and sometimes costs have been reserved, with the expressed danger for the wife that costs would in due course be awarded against her.

 

 

14. Yet the wife, despite all these reverses before numerous different judges, continues to believe that she is the victim of a gross injustice which will at some stage be established in the courts and her appetite and enthusiasm for making court applications remains wholly unsatisfied and undimmed.

 

 

Hearing on 2^nd March 2016

 

 

15. It is against this background that certain matters came before me on 2^nd March 2016 and I must make decisions on each matter on the merits of each application, but against the background described above. The applications were:-

 

(i)                 residual matters arising out of an abandoned variation application;

 

(ii)               two (ultimately three) fresh applications for which the wife sought leave to make an application under the terms of the Civil Restraint Order; and

 

(iii)             a number of costs issues.

 

 

Recusal Application

 

 

16. On 2^nd March 2016, before I even got to the matters set out above, I was presented with another recusal application by the wife. I delivered an oral judgment rejecting this application and dealing with various matters raised by the wife, but I want in this written judgment just to make one thing clear. The wife told me on 2^nd March 2016, I believe for the first time, that since I had conducted an FDR in April 2014 I should thus have disqualified myself from further dealings with the case. Had I conducted an FDR I would certainly have so disqualified myself; but it is not so. For avoidance of doubt I did not conduct an FDR in this case in April 2014 or at any other time.

 

 

Variation Application

 

 

17. I shall first deal with the variation application. In my order of 9^th September 2014 I had awarded the wife six years’ worth of spousal periodical payments at the rate of £1,000 per month, a total figure of £72,000. I would have capitalised that figure but, to help the wife, who might otherwise might have been bankrupted by her creditors if they had come to know she was in possession of a capital sum, I did not do so. This has left open the loophole of variation and the wife has energetically exploited this loophole, swiftly applying to vary my order, relying essentially on similar material to that which I had already rejected. Accordingly, on 2^nd June 2015, I dismissed the variation application, after permitting the wife to carry out a fresh three hour cross-examination of the husband. By that stage £8,000 had been paid of the spousal periodical payments and £64,000 remained outstanding. By that stage also, as a result of the various costs orders made (by me and by Roberts J) against the wife, the wife owed the husband (subject to detailed assessment) a sum of money in the region of £70,000. I exercised my discretion to suspend the operation of the periodical payments order pending the detailed assessments as to do otherwise seemed to me to create an injustice for the husband.

 

 

18. At the hearing before Holman J in July 2015 he was informed by the wife that “Jobcentre Plus” had recently determined that she was not capable of working. He noted that this suggested a change in circumstances in terms of the wife’s earning capacity to the one identified by me in September 2014 and accordingly gave her permission to make a further variation application based “on the ground that in July 2015 Jobcentre Plus determined that the applicant is not capable of working and awarded her extra money”. The wife duly made that application and it came before me for directions on 5^th and then 26^th October 2015. In paragraphs 10 to 12 of my order of 26^th October 2015 I required her to comply with certain disclosure matters so that I could make a determination of the case on 2^nd March 2016. The wife declined to comply with these directions. On 30^th November 2015 she emailed the court saying that she wished to withdraw her substantive application on the basis that she was returning to work. In December 2015 the wife informed the court: “I am not in breach of your order given the application had, by default, to be disbanded…Notice of discontinuing with the application was served on the court and the other side in good time to same effect”. It wasn’t very clear to me what this meant, and in any event costs issues remained outstanding, and I therefore listed another directions hearing on 15^th January 2016 to investigate the wife’s position and to ensure that the case would be on track for 2^nd March 2016. The wife (by her own choice) attended the hearing on 15^th January 2016 by telephone link. At that hearing the wife (as far I am concerned clearly, unequivocally and exercising free will) expressly agreed the terms later recorded in recital 3 and paragraphs 7 and 8 of my order of 15^th January 2016, i.e. she agreed that her spousal periodical payments would stand dismissed on the basis that she was relieved of her obligation to comply with the disclosure requirements and had credit in the sum of £64,000 for any costs orders pursued against her. I am aware that the wife has subsequently applied to the Court of Appeal to be discharged from the terms of this agreement, but in terms of the hearing before me on 2^nd March 2016 I am satisfied that this discharge has not happened and that it is appropriate for me to proceed on the basis that the wife is bound by the agreement recorded in my order. Subject to cost issues, that seemed to me to put an end to the variation application.

 

 

Fresh Applications under the Civil Restraint Order

 

 

19. There were initially two (and eventually three) applications which the wife wished to pursue, but needed my leave under the terms of the Civil Restraint Order:-

 

(i)                 she wished to make a fresh application to set aside my order of 9^th September 2014;

 

(ii)               she wished to make an application to publicise a transcript of the cross-examination of the husband which took place on 2^nd June 2015; and

 

(iii)             she wished to make an application to set aside the default costs certificates approved by District Judge Veysey in February 2016.

 

 

20. I had sought in my order of 15^th January 2016, and Mr Collins (Counsel for the husband) has helpfully provided, submissions on the proper law to be applied in deciding whether or not to give leave to a litigant subject to a Civil Restraint Order to issue an application. The most helpful and authoritative statement of the law on this subject can be found in the judgment of Morgan J in Forrester Ketley v David Brent  [2008] EWHC 3150 (Ch), at paragraph 24:-

 

“I have considered what test should be applied when considering whether to grant or to withhold permission to issue a claim, or make an application, or take a step, when such permission is required by …[a Civil Restaint Order]…  I do not think that I have to attempt a comprehensive definition of the circumstances to be taken into account. It will be highly relevant to assess whether the suggested claim or application or step has a realistic prospect of success. If it does not, it would normally be right to withhold permission. An exception might be where there is some other reason, which appears to the court to be sufficient, when assessing where the interests of justice lie, as to why the claim or application or step should be permitted. Conversely, even where the claim or application or step has a realistic prospect of success, there might exceptionally be a case where the claim or application or step would nonetheless be oppressive to the other party and that might suffice to persuade the court to withhold permission.

 

 

21. This extract seems to me to set out a sensible and fair approach and, accordingly, I propose to adopt and follow this guidance in relation to the three applications.

 

 

22. I shall first deal with the fresh application to set aside my order of 9^th September 2014. It is relevant to recall that Roberts J had investigated the matter in February 2015 and her order of 1^st April 2015 records that “the wife has failed to adduce any material and/or sufficient evidence which would entitle her to…set aside the order”. It is further relevant to record that Holman J had dealt with and rejected an identical application on 31^st July 2015. It was my task to determine whether the wife could point to evidence which had not been available to Roberts J or Holman J in 2015, but was now available and established at least an arguable case that the husband was guilty of material non-disclosure in September 2014. I invited the wife to show me any material which came into this category:-

 

(i)                 The wife invited me to investigate the husband’s disclosure in relation to three business entities: Sherpa Offshore, Basic Offshore and Gas Partners. On investigation it was clear to me that the wife’s views on these matters had been fully ventilated before Roberts J and Holman J and rejected (see Holman J’s judgment at paragraph 49 et seq and Roberts J’s judgment at paragraph 70 et seq). I was not presented with anything to cause me to interfere with their conclusions.

 

(ii)               The wife invited me to investigate the husband’s disclosure in relation to another business entities: Ind-Aust Pte Ltd. On investigation it was clear to me that the wife’s views on these matters had been fully ventilated before me in September 2014. I was not presented with anything to cause me to doubt the conclusions I reached about this in September 2014.

 

(iii)             The wife sought to place reliance on correspondence between the husband and his own solicitors in divorce proceedings with an earlier spouse in 2003. Leaving aside the question of how the wife came to be in possession of this correspondence it was my view that this correspondence was irrelevant to the exercise being conducted by me in 2016.

 

(iv)             The wife raised the issue of the husband’s 2014 tax position in Singapore. For the most part this was a re-run of the arguments put before me on 2^nd June 2015 (where it was argued that the absence of a particular document was significant) and fully reinvestigated before Holman J on 31^st July 2015, at the end of which Holman J concluded (at paragraph 29) “At all events, in my judgment, the absence of those particular documents at that hearing does not in any way whatsoever undermine the decision which DJ Hess reached at that hearing”. The additional documents (an exchange of email correspondence in November 2015 between the wife and Mr Awan, a Singaporean Tax Officer) seemed to me to add little to the available information and certainly did not significantly change the overall position or to cause me to interfere with Holman J’s conclusions.

 

(v)               The wife had found evidence to suggest that the husband had commenced some work with a business entity called the BMT Group in late 2015. It was conceded by Mr Collins that this was indeed the case. Given the nature of my 2014 judgment (which contemplated that the husband would still find some work), the age of the husband (66, older than state pension age in the UK), the nature of my decisions on disclosure by the husband (see my order of 26^th October 2015) it seemed to me that this information had little relevance to the issues before me. Even Mrs Welch had to accept that this information (having happened in late 2015) could not possibly fall into the category of material non-disclosure in 2014. She went on to suggest that this might be a Barder event – which it plainly was not – and I was reminded of the arguments to this effect dismissed by Holman J (see paragraph 41 of his judgment of 31^st July 2015).

 

 

23. Having surveyed the material put before me by the wife I have reached the clear view that a fresh application to set aside my order of 9^th September 2014 stands no realistic prospect of success. Accordingly, I refuse the wife’s application for leave to pursue this application.

 

 

24. I turn to the second proposed application – for permission to make an application to publish the transcript of the husband’s cross-examination of 2^nd June 2015 for the purpose of writing a book or a television documentary. This is opposed by the husband. Looking at the merits of the application there is something to be said for it. All the judgments in this case have been released for publication (save for some agreed redactions) and have received press coverage in various ways. The husband has himself promoted publicity by making an application (which I granted) for me to publish certain of my judgments on BAILII and by issuing a press release which was taken up by a number of media outlets.

 

 

25. The hearings before Holman J in July 2015, Roberts J in February 2016 and me in March 2016 have been held in open court and there is not very much of this case which is still protected by privacy considerations which would ordinarily prevail. Although the husband is understandably concerned that the wife wishes to use the transcript for mischievous purposes, I am not at all convinced that there is much mischief she can make of it which she cannot already make with the material already available via the published judgments and I do not want it to be said that the court is making decisions in secret in this case.

 

 

26. Holman J (in his order of 31^st July 2015, paragraph 7) has already given her express permission to disclose any material to the Police/CPS/Attorney-General so any order by me would not affect that. Equally his order has denied her permission to use the material in support of an application to commit or an associated damages claim in the Queen’s Bench Division so an order by me in the terms sought would not interfere with that mischief.

 

 

27. Accordingly, I am minded to give the wife leave to make this application. I am very anxious, however, that this should not extend into another protracted and costly dispute and I therefore propose to make the following direction:-

 

(i)                 The wife has permission to make an application in the following terms:-

 

“The wife shall have permission to publish the transcript of the husband’s cross-examination of 2^nd June 2015, or any part of it, for the purpose of inclusion in a book or a television documentary.”

 

(ii)               If the husband wishes to oppose this application he shall make written submissions by 31^st March 2015 (which shall sent by email to [an email address] and [an email address] and copied to [an email address]. If he does not propose to make any submission he should confirm the same by the said date to the same email addresses.

 

(iii)             Depending upon these submissions the court may proceed to call for further submissions from the wife or may grant the remedy.

 

(iv)             For the avoidance of doubt the court does not propose to make any order which interferes with paragraph 7 of the order of Holman J of 31^st July 2015.

 

 

28. I now turn to the third proposed application. Since this relates to costs I am going to deal with this alongside the overall question of costs in a separate section.

 

 

 

 

Costs

 

 

29. It is very clear that the husband has incurred very significant costs in dealing with all of these matters:-

 

(i)                 A number of costs orders have already been made against the wife relating to the hearings, mostly in 2015. These were to be subject to detailed assessment as a result of my order of 2^nd June 2015.

 

(ii)               The husband’s costs lawyers drew up schedules which put these costs at £77,765.90.

 

(iii)             Various attempts were made to serve these costs schedules on the wife – these were described in recital 4 to my order of 15^th January 2016. Paper copies of the schedules were offered at court on 3^rd December 2015, but declined. Paper copies were offered by courier on 2^nd December 2015, but declined. A PDF version was sent by email, and received by the wife, on 17^th December 2015.

 

(iv)             Since nothing further had been heard by the wife’s Solicitors they applied for default costs certificates on about 29^th January 2016. These arrived on my desk in Portsmouth at about this time. Such matters are dealt with by District Judges in Portsmouth and I passed on the applications together with a copy of my order of 15^th January 2016 to District Judge Veysey. He issued the certificates. Accordingly the husband is, in principle, entitled to take such enforcement action as he thinks fit. This is, of course, subject to the agreement recorded in my order of 15^th January 2016 to the effect that the wife is entitled to credit against the first £64,000 of any costs enforced against her.

 

(v)               The wife now wishes to set aside these certificates. She told me that her costs lawyer had advised her that service by the above means did not represent good service and that she had instructed him to draft a detailed challenge to the costs certificates. She told me that the challenge would be partly based on the long sequence of lies by the husband and partly on the use of over-expensive lawyers by the husband. I formed the clear impression that another challenge to substantive issues was being teed up and am concerned that this route will be used as another way of dragging on this dispute into another area of satellite litigation. I am very concerned that the wife wishes to use this route as a way of oppressing the husband in a way which falls into the category identified by Morgan J in Forrester Ketley v David Brent  [2008] EWHC 3150 (Ch). I can readily envisage a situation where the husband is put to significant extra cost in dealing with a complicated assessment process where a fresh tribunal is confronted with the issues already dealt with extensively.

 

(vi)             Further investigation of the relevant Civil Procedure Rules (CPR PD6A, paragraph 4) by the court, however, has suggested that the wife probably has a good technical point in relation to service. A party is not obliged to receive these documents by email. On the other hand, I am quite satisfied both that the wife’s difficult behaviour impeded service and that she did in fact have the relevant documents in her possession by PDF from 17^th December 2015 and I note that her costs lawyers are not having any difficulty working from this. If she has a good technical point it is not necessarily a meritorious point, and I am dealing with a Civil Restraint Order which gives the courts additional powers to decline a remedy.

 

(vii)           In the meantime, on 22^nd January 2016 Roberts J made a further order for costs against the wife in the sum of £5,750.

 

(viii)         In addition to the above I have to deal with four reserved costs orders and the husband’s legal team have produced schedules which purport to establish the following cost claims:-

 

Costs of and related to the hearing on 5th October 2015	£4,612.50
Costs of and related to the hearing on 26th October 2015	£7,064.40
Costs of and related to the hearing on 15th January 2016	£12,150.88
Costs of and related to the hearing on 2nd March 2016	£13,364.40
TOTAL	£37,192.18

 

 

30. In terms of the merits of the issues which have been ventilated before me since October 2015 I have no hesitation in concluding that the fact that costs have been incurred is very substantially the wife’s fault. She has pursued a variation application and then abandoned it without going through the proper procedures. She has pursued another meritless application to set aside my order of 9^th September 2014 which I have declined to allow her to pursue. She has been uncooperative throughout (for example in the preparation of bundles and in declining to deal with directions on 5^th October 2015) and the husband has been accordingly put to extra cost. Such successes as she has had (for example in relation to publishing the cross-examination transcript) have been a fairly small part of the overall case. There are undoubtedly good reasons for making inter partes costs orders against her. In saying this I am cognisant of the fact that part of the costs exercise should be conducted, in part anyway, by reference to “the general rule in financial remedy proceedings is that the court will not make an order requiring one party to pay the costs of another party” (see FPR Part 28).

 

 

31. On the other hand I am very conscious of the fact that the assessment of costs here has to take into account the wife’s ability to pay. Having conducted the proceedings in 2014 I know enough about the wife’s financial circumstances to reach the conclusion that there is almost no prospect of any of these costs being paid. The assessment of Holman J (see his judgment at paragraph 62) is correct when he says “the fact of the matter is that this lady has absolutely no funds and no assets”. It seems to me that the argument over costs is almost entirely academic and it is very unattractive to me to allow further hearings on these issues. If I can bring all matters, including costs matters, to a final conclusion then that seems to me to be all the better for both parties, as well as avoiding using up further court resources to allow the argument to continue.

 

 

32.  Taking into account all of these matters I have decided that the fair way to proceed is as follows:-

 

(i)                 I shall refuse the wife’s application for leave to issue an application to set aside the default costs certificates.

 

(ii)               I shall make no order as to costs in relation to the proceedings since October 2015.

 

(iii)             I shall leave the existing costs liabilities in place, whilst noting that any enforcement is subject to the £64,000 credit figure.

 

 

33. In reaching these conclusions I hope to reflect the fact that the wife might have succeeded in diminishing the amounts in the default costs certificates, but that the husband might ordinarily have been entitled to some costs from the proceedings since October 2015. I hope to bring to an end once and for all these unhappy and costly proceedings.

 

 

34. All of these conclusions are predicated on the basis that the Court of Appeal does not release the wife from the terms of the agreement entered into on 15^th January 2016. Plainly, if the Court of Appeal does so allow her to be released then many of these conclusions will have to be reviewed.

 

 

 

35. If either party wishes me to place this judgment on BAILII  and requests the same in writing I shall do so.

 

 

 

 

 

 

 

 

 

His Honour Judge Edward Hess

Portsmouth Family Court

9^th March 2016