England and Wales High Court (Family Division) Decisions

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Cite as: [2010] EWHC 2392 (Fam)

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This judgment is being handed down in private on 6 October 2010 It consists of 3 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

		Neutral Citation Number: [2010] EWHC 2392 (Fam)
		Case No: FD05D01396

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

06/10/2010

B e f o r e :

SIR NICHOLAS WALL,
THE PRESIDENT OF THE FAMILY DIVISION
____________________

Between:

	Mr T	Applicant
	- and -
	Mrs T	Respondent

____________________

The Applicant appeared in person assisted by his McKenzie Friend Mark Windsor
Gail Carrodis (instructed by Fisher Meredith) for the Respondent
Hearing dates: 28 July 2010
____________________

HTML VERSION OF JUDGMENT
____________________

Sir Nicholas Wall P:

I heard this case at the end of a busy applications list on 28 July 2010. Given the time at which the argument concluded, and the fact that I had not had the opportunity properly to study all of the documents in the case, I reserved judgment.

Mr. T (as I shall call him) seeks a variation of a Mareva injunction initially made ex parte by Kirkwood J on 24 February 2006, and subsequently varied. The current order, which is dated 28 April 2009, freezes Mr. T's assets to the tune of £500,000. Mr. T seeks a variation in that amount to £68,000. Mrs T, his former wife, who is the respondent to the application, accepts that some variation is appropriate, but submits that the variation should be down to £150,000.

Mr T also seeks to strike out an application by Mrs. T for a Civil Restraint Order against him. This is due to be heard (according to the summons) by a Judge of the Division on 6 October 2010, with a time estimate of two hours Mr T says that this application is an abuse of process, and can properly be dealt with here and now, since both parties are before the court and it will save costs to deal with it immediately.

I decline to deal with the second limb of Mr T's summons for three reasons. The first is that there is already a date fixed for its hearing. The second is that Mr T's summons had a time estimate of one hour (whilst the application for a civil restraint order has a two hour time estimate). One hour was insufficient (if reading time and time for a judgment were included) to deal with the first limb. Thirdly, there is no prejudice to Mr T in dealing with the matter on 6 October. If Mrs. A's claim fails on that day, he will get his costs as a litigant in person, and in any event, having now read the papers, Mrs. A is entitled to advance her case for a civil restraint order. There is, accordingly, no basis upon which that process can properly be short-circuited by a premature order. I propose, therefore, to say no more about the application for a civil restraint order, which will be dealt with in due course on 6 October.

The Background

In the background are long standing and acrimonious proceedings for. ancillary relief between Mr and Mrs T, which resulted in an order made by district judge Bowman as long ago as 10 March 2008. It is most unfortunate that satellite litigation is still continuing, For the purposes of this summons, I need say no more.

The parties' respective cases

The basis upon which Mr. T puts his case is set out in a statement in which he asserts that all that remains to be charged against him is £79,937.10 for costs yet to be assessed, which he is challenging, less, he says, £33,000 already paid and $33,000 interest, leaving a balance of £68,000.

Mrs T's case is set out in an affidavit sworn by her solicitor, Eileen Pembridge, on 6 July 2010. Ms Pembridge set out the history of the proceedings in some detail, and exhibits to her affidavit a number of the orders and applications made in the proceedings, along with judgments given district judge Bowman and Bodey J, as well as proceedings taken by Mr. T in the Lambeth County Court. Mrs T has also produced a schedule which, including anticipated future awards of costs, amounts to £148,590.80.

I have also read correspondence passing between Mrs T's solicitors and Mr T, in which the former make it very clear that they will agree to a variation to £150,000 but no less. The Emails from Mr T, by contrast are obscure and, I have to say, in places offensive. For example – and I choose one only – he accuses Ms Pembridge of seeking "a social audience" with District judge Bowman.

Discussion and conclusion

Having now read the judgments of Bodey J and district judge Bowman, I am, of course, bound by their findings. Mr. T inevitably suffers from the fact that adverse assessments have been made of his credibility by both the district judge and the judge, and he does not help his cause by correspondence which, no doubt, he sees as vigorous and justified, whereas to the objective reader it appears both aggressive and offensive.

I fully appreciate that Mr. T is not a lawyer, and that he accuses Mrs. A of prolonging the proceedings. Having read the papers, however, I agree with Mrs. A's solicitors that they need to retain an appropriate degree of security over Mr. T's assets in order to ensure that she receives her due. Equally I can see no prejudice to Mr T in the limit being reduced to £150,000. I readily acknowledge that the schedule produced by Mrs. T includes future costs, but if the matter is resolved without them being incurred, then no doubt any balance outstanding can be paid to Mr T.

Against this background, it seems to me that Mr T should have accepted Mrs T's offer to reduce the sum outstanding on the Mareva injunction to £150,000. Since Mrs. T made an open offer to this effect – see the letter and Email of 20 July 2010 - it follows that the hearing before me was unnecessary and that Mrs. A is entitled to her costs of that hearing. In my judgment, the unreasonable refusal to put into effect an open offer of this kind warrants an order for indemnity costs.

I therefore accede to Mrs T's suggestion that the assets of Mr T which are subject to the injunction be reduced to £150,000 and that Mr T pay the costs of Mrs T incurred in relation to the summons before me on the indemnity bases. I should be most grateful if counsel would draw the appropriate order

Finally, I express the hope that this litigation can be brought to an end without the further expenditure of costs. Mr T must realise, however, that if he loses an application, he is liable to be ordered to pay Mrs. T's costs of that application. The remedy, therefore, lies in his hands.