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 12 ^th September 2016

 

See also: [2016] EWFC B65

 

1. This judgment relates to another application, in relation to which I received oral and written submissions from each party earlier today, 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.

 

 

2. I do not propose to set out the background to this application at great length as this is set out fully, inter alia, in:-

 

(i)                  judgments given by me as a District Judge of the PRFD/Central Family Court on 9 ^th September 2014 and 2 ^nd June 2015;

 

(ii)                judgments given by me as a Circuit Judge at Portsmouth Family Court on 9 ^th March 2016 and 7 ^th June 2016;

 

(iii)              judgments given by Roberts J on 16 ^th and 23 ^rd February 2015;

 

(iv)              a judgment by Holman J given on 31 ^st July 2015; and

 

(v)                decision records of McCombe LJ in the Court of Appeal dated18 ^th February 2016, 15 ^th August 2016, 16 ^th August 2016 and 26 ^th August 2016.

 

 

3. In summary form, the most relevant sequence of events are as follows:-

 

(i)                  After a four day final financial remedy hearing I made orders on 9 ^th September 2014 which included:-

 

(a)     an order for sale "forthwith" of the property (in joint legal names) at Inglenook, 22 Roseacre Gardens, Chilworth, Guildford, Surrey (hereinafter "Inglenook"); and

 

(b)    provision (by way of the husband's undertaking) for the husband to purchase a property selected by the wife within England and Wales up to the value of £250,000 for her to occupy on terms set out in the original order.

 

(ii)                The reasons for these decisions were fully set out in my judgment of 9 ^th September 2014. The wife has always considered, and continues to consider, this order to be grossly unfair to her. She retains her optimism that she will one day be vindicated and told me today that she remains confident of extracting £10,000,000 from the husband or his solicitors and that she continues to expect a criminal prosecution of the husband. In my view these thoughts echo the unrealistic thoughts she has about the injustice delivered to her by the courts in relation to her first marriage. In answer to my enquiry as to whether she now wished to take advantage of the provision in my original order for housing worth up to £250,000 she made it clear that she regarded this provision as insulting and certainly has no present intention of making use of it (although the obligation on the husband remains if the wife changes her mind).

 

(iii)              The wife has made numerous attempts to undermine the substance of my original order (by way of appeal or set aside).The wife failed to persuade either Roberts J or Holman J of the merits of her case in this respect. Further, as I understand the recent decisions of McCombe LJ, the Court of Appeal has now ruled that all such attempts have been dismissed and declared to be " totally without merit" such that the wife " may not request the decisions to be reconsidered at an oral hearing".

 

(iv)              The wife has also made numerous attempts to impede the enforcement of the order for sale of Inglenook contained in my original order. She made a number of, ultimately unsuccessful, attempts to overturn the possession order I made in April 2015; but in the end, after the decision of McCombe LJ in February 2016, she had to give up possession.

 

(v)                Once the husband had possession of Inglenook he sought a purchaser. By June 2016 he had found a prospective purchaser and a price was agreed at £860,000. The wife did not cooperate in the execution of the transfer and the husband brought an application before me on 7 ^th June 2016. I indicated in my judgment that I was prepared to execute the relevant documents if the wife continued to refuse to do so. The wife indicated that she remained unwilling to cooperate. I accordingly made an order which, I believed, legitimately authorised my execution of the conveyancing documentation. Accordingly, I executed the conveyancing documentation on 8 ^th June 2016.

 

(vi)              The wife appealed against my order of 7 ^th June 2016. A significant number of grounds were put forward. One was based on the proper construction of Senior Courts Act 1981, Section 39. All the others related to the same arguments being pursued in relation to the then ongoing appeals against the substantive orders. McCombe LJ held that, in relation to the Section 39 point, there was an argument which had a sufficient prospect of success to justify the granting of permission to appeal. If I have understood the decision record of 26 ^th August 2016 correctly, McCombe LJ's ruling on all the other grounds was that they fell into the category of arguments which were totally without merit - hence his comment that, for these points, " all avenues of appeal have now been exhausted". I have also noted McCombe LJ's comments to the effect that the Section 39 point, whilst " technically arguable...has no underlying merit and (the wife) ought to be co-operating in procuring the sale of this property rather than obstructing it...the appeal will have been a futile exercise".

 

(vii)            As it happens, in the midst of the appeal process, the husband and the prospective purchaser of Inglenook have renegotiated the contract price downwards from £860,000 to £835,000 and so the documents actually executed by me on 8 ^th June 2016 are redundant in any event.

 

(viii)          Assessing the situation, and taking cognisance of CPR PD 52A, paragraph 6.4, the husband's solicitors have, in my view sensibly and legitimately and appropriately in the circumstances, taken the decision that it is a more time and cost efficient exercise to permit my order of 7 ^th June 2016 to be set aside without determination of the merits and to seek a fresh order, one which incorporates the new and correct sale price, and one which (without doubt) complies with Senior Courts Act 1981, Section 39. The husband's solicitors have informed both the wife and the Court of Appeal Office (in the form of Mrs Rita Downes) of this decision. She (Mrs Downes) has reminded the parties (in an email dated 8 ^th September 2016) that " the Court of Appeal will not hear academic appeals...wherever possible parties should settle academic appeals by consent at an early stage. There may be costs consequences for failure to do so". The wife has made it clear that she does not accept this position at all, continues to challenge the appropriateness of the execution of a sale and declines to cooperate. In particular she has made it clear that she will not sign the draft consent order put forward by the husband's solicitors which would have the effect of setting aside the relevant parts of my order of 7 ^th June 2016.

 

(ix)              Accordingly, an application was made on 2 ^nd September 2016 to the effect that I should make a (definitely) Section 39 compliant order:-

 

(a)     making provision for the delivery of the updated conveyancing documentation to the wife by email (i.e. the contract of sale, the Law Society Fittings and Contents form and Form TR1 and any further documents relating to this sale of the property, or any other sale of the property should the current sale process fall through) ;

 

(b)    giving the wife 7 days to execute the documents and deliver them up to the husband's solicitors; and

 

(c)     authorising, in the absence of cooperation, the court to execute the documents on application without further notice to the wife.

 

 

 

4. Having listened to and read the arguments advanced by both parties (i.e. Counsel, Mr Ken Collins, for the husband and the wife in person) I have reached the clear conclusion that I should accede to this application. Accordingly I will make the order sought in the terms advanced and incorporated in the trial bundle (pages 31-32 and 6-30).

 

 

5. In reaching this conclusion I have in particular taken into account the following matters:-

 

(i)                  In essence this order does no more than implement the order I made as long ago as 9 ^th September 2014. It is simply unfair to the husband for him to be denied the fruits of his 2014 litigation. This argument is even more powerful than it was on 7 ^th June 2016, now that the wife has no remaining substantive appeal routes open to her.

 

(ii)                I can see no merit in the argument that the residual existence of the appeal against my order of 7 ^th June 2016 prevents my making the order sought.

 

(iii)              It is clear beyond doubt that the wife has no intention of cooperating with the sale process, notwithstanding the clear written warning given to her by McCombe LJ.

 

 

6. I am sending out this judgment by email in the early evening of 12 ^th September 2016. At the time of writing I have only a paper copy of pages 31-32 and 6-30 of the trial bundle. I would be grateful if the husband's solicitors could email to me a word version of pages 31-32 and a PDF of pages 6-30 so that I can construct an order in a form which I can ask the court staff in Portsmouth to process. I will make the order on 13 ^th September 2016 so the dates can be completed accordingly in pages 31-32.

 

 

7. Before finishing this judgment I want to mention a number of matters:-

 

(i)                  The wife gave me her view that I had misunderstood the decisions of McCombe LJ and that, following a subsequent telephone conversation between her and the Court of Appeal office, the Court of Appeal has in fact listed another oral hearing to consider the substantive issues in the case (i.e. alleged fraud, as opposed to the technical Section 39 point). She told me that in making any decision at all on this application I was being wholly disrespectful to the Court of Appeal and was acting unconstitutionally and unlawfully by causing a lower court to subvert an order of a higher court. My belief is that this assertion is based on a misconception by the wife as to what has happened, but I indicated, and the wife assented, that I would take the unusual step of sending a copy of this judgment to McCombe LJ by email. Plainly, if he agrees with the wife, then no doubt he will make sure that I am aware of this, hopefully before any conveyancing documents are executed. My intention is certainly not to undermine the intentions of the Court of Appeal.

 

(ii)                In my order of 7 ^th June 2016 I placed a condition on the execution of the conveyancing documentation, which was that the husband's solicitors retained £75,000 of the sale proceeds for a short period. I did this because I was cognisant of the outstanding appeals and the retention obligation was to be terminated on events which have now occurred. Now that these appeals have been dealt with I do not consider that such a condition is appropriate and I do not propose to include such a condition in my new order. The wife did raise the possibility on this occasion of my making a condition of the sale that £250,000 was retained so that this money was available to meet her housing fund. Having noted her response to my enquiry about this fund and having noted that there is no evidential basis to believe that the husband would not comply with his obligation if the wife chose to enforce it, I have decided not to accede to the wife's request in this respect.

 

(iii)              The inclusion in my order of service on the wife of documents by email (as opposed to any other form of service such as postal service) was specifically approved by the wife at the hearing today.

 

(iv)              The wife chose to attend today's hearing by telephone. Cognisant of previous appeal points, I took the step of ensuring that the wife heard and understood all that was said by me or by the husband's counsel. I have no doubt at all that this was achieved at today's hearing.

 

(v)                The wife asked me to declare that the husband's solicitor was guilty of contempt of court (such that I should decline to hear the application) by having sent an email directly to my email address, in particular his email of 8 ^th September 2016. Whilst I have requested both sides to direct emails to a named member of the court staff, and I want to repeat that request, I have declined to follow the remedy sought. For avoidance of doubt, this email was copied to the wife so there was no question of there being any absence of transparency.

 

 

8. The husband, having succeeded in this application, has asked for an inter partes costs order, and for that to be summarily assessed at £5,291.50. It is accepted that a costs schedule including this figure was served on the wife on 6 ^th September 2016.

 

 

9. In dealing with this request:-

 

(i)                  I note " 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).

 

(ii)                The figure of £5,291.50 does seem disproportionately high to the relative straightforwardness of the application - albeit that, as a Section 39 application, it has a number of very unusual features.

 

(iii)              I also acknowledge that I know enough about the wife's financial circumstances to reach the conclusion that there is almost no prospect of these costs being paid - the assessment of Holman J (see his judgment at paragraph 62) to the effect that " the fact of the matter is that this lady has absolutely no funds and no assets" remains apposite. Against this, she has a very small (1%) residual share in Inglenook to which she will be entitled on a sale.

 

(iv)              On the other hand, a sensible and reasonable litigant would not have conducted herself in relation to this application in the way which the wife has. Consistent with her approach throughout these proceedings she has wholly failed to exercise any sensible judgment. In the meantime the husband has to go on paying lawyers to argue against this apparently endless series of challenges to my September 2014 decision.

 

 

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

 

(i)                  I shall make an inter partes order as to costs of this application.

 

(ii)                I shall make a summary assessment in the sum of £2,000, payable within 14 days.

 

 

11. I would be grateful if this costs order could be incorporated in the draft order.

 

 

12. If either party wishes me to place this judgment on BAILII and requests the same in writing (copied to the other party) I shall do so.

 

 

 

 

 

 

His Honour Judge Edward Hess

Portsmouth Family Court

12 ^th September 2016