England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		03/02/2012

Mr Justice Mostyn:

1. Mr Scot Young ("H") applies for the release of his passport which has been impounded by the Court, and held by the tipstaff, pursuant to a sequence of eight orders which started with an order of Hogg J dated 12 March 2009 and culminated in a consent order made by Parker J on 28 September 2009. It is opposed "with the utmost resolve" by Michelle Young ("W") who seeks a continuation of the impoundment until the final hearing of her claims for financial remedies following divorce which will be heard over 10 days on 12 November 2012 before Moor J. The effect of the current order has been, and will be unless discharged, to confine H to the United Kingdom and the Republic of Ireland. A British citizen does not need a passport to travel to the Republic.
2. When the matter first came before me on 20 January 2012 I was concerned that the issues may give rise to a consideration of the engagement or otherwise of Art 5 European Convention on Human Rights 1950 – the Right to Liberty and Security, which is, of course, one of the rights referred to in s1 of and Sch 1 to the Human Rights Act 1998 ("HRA"). I therefore declined Ms Bangay QC's application for a lengthy adjournment of the application to July 2012, but ordered this matter to be heard one week later on 27 January 2012.
3. H acts in person and has put no written argument before the Court. W is represented by Mr Edward Fitzgerald QC, Ms Deborah Bangay QC and Mr Joe Middleton who have submitted a 24 page written argument accompanied by a thick file of authorities.
4. Before turning to the relevant facts I intend to seek to summarise the relevant legal principles.
5. I agree with the submissions of Mr Fitzgerald that the question of the impoundment of a litigant's passport pending the final trial of the claims for financial remedies following divorce does not specifically engage Art 5 of the Convention. There has been a deal of jurisprudence as to what constitutes a deprivation of liberty for the purposes of Art 5. Recently a sizeable quantity has emanated from the Court of Protection. In A Local Authority v A (A Child) & Anor [2010] EWHC 978 (Fam) Munby LJ stated at para 48:

"It was correctly common ground before me that in determining whether there is a 'deprivation of liberty' within the meaning of and engaging the protection of Article 5(1) three conditions must be satisfied (see Storck v Germany (2005) 43 EHRR 96 at paras [74] and [89] and JE v DE (By his Litigation Friend the Official Solicitor), Surrey County Council and EW [2006] EWHC 3459 (Fam), [2007] 2 FLR 1150, at para [77]; see also now G v E and others [2010] EWHC 621 (Fam) at para [77] and Re MIG and MEG [2010] EWHC 785 (Fam) at para [151]):

i) an objective element of "a person's confinement to a certain limited place for a not negligible length of time";

ii) a subjective element, namely that the person has not "validly consented to the confinement in question"; and

iii) the deprivation of liberty must be one for which the State is responsible."

6. Thus, in SSHD v AP [2011] 2 AC 1 the Supreme Court held that a control order imposing a 16 hour daily curfew attended by various further restrictions would only amount to a deprivation of liberty for article 5 purposes if there were additional restrictions which gave rise to "significant social isolation", and were "unusually destructive of the life the controlee might otherwise have been living". It is true that in B v B (Injunction: Restraint On Leaving Jurisdiction) [1997] 2 FLR 148 at 154F Wilson J (as he then was) stated that "Mr Mostyn suggests that a restraint upon leaving England and Wales is wholly unlike imprisonment. I disagree", but that was decided before the advent of the Human Rights Act 1998 and without consideration of the Strasbourg jurisprudence. I am clear that the continuation of the order that is sought by W does not engage Art 5 as it does not confine H to a "certain limited place". While a small island did amount to such a "limited place" in Guzzardi v Italy (1980) 3 EHRR 333, the same cannot be said of the British Isles.
7. Equally, I am clear, at least on the fact of this case, that the order sought by W does not engage Art 8. There has been no suggestion in this case that the passport order has restricted H's family life. Mr Fitzgerald submits that the notion of private life is a broad one. It is "primarily intended to ensure development, without outside interference, of the personality of each individual in his relations with other human beings" (Botta v Italy (1998) 26 EHRR 241). The development of relationships with others includes not only personal relationships but also professional and business activities.
8. The implications of retaining a passport under article 8 were recently considered by the Administrative Court in R (Atapattu) v SSHD [2011] EWHC 1388 (Admin). In that case, the British High Commission in Sri Lanka had failed to return the claimant's passport, despite repeated requests for its return. The claimant claimed damages inter alia for breach of his right to respect for private life under article 8. His ability to work as a seaman was hampered, but there was no evidence that he was unable to work at all. This was relevant because article 8 does not give a right to choose one's particular occupation. Nor was there any other evidence "that the withholding of his passport had any other particular effects on the ability of Mr. Atapattu to enjoy his private life, on his relations with other human beings or on his personal development" (para. 150). There was accordingly no interference with respect for his private life.
9. In Atapattu the Court further held the retention of the claimant's passport did not amount to a violation of article 1 of Protocol 1 (Right to Protection of Property). This was on the basis that a passport is an intangible object with no marketable or monetary value and accordingly, on the authorities, is not a possession within the meaning of Article 1, Protocol 1 (paras 160-174).
10. Mr Fitzgerald also drew to my attention the right to freedom of movement under article 2 of Protocol 4 of the ECHR and its verbatim reproduction in Article 12 of the International Covenant on Civil and Political Rights. This states that "everyone shall be free to leave any country, including his own." But the UK has not ratified Protocol 4 and none of the rights mentioned there are "Convention rights" under the HRA 1998, s. 1(1). The International Covenant on Civil and Political Rights has not been incorporated into our domestic law.
11. Before parting from the ECHR 1950 I want to make a basic point. Lord Bingham of Cornhill has written that "it would of course be a travesty to suggest that people living in this country enjoyed no rights until 2 October 2000 when the Act came into force throughout the UK" (Lives of the Law, OUP 2011, p178). It is well known that the draftsman of the Convention sought to express in a straightforward code the rights already largely bestowed on the citizens of this country by common law, statute and Royal Charter. As was said during argument we like to think of ourselves as one of the freest peoples in the world. While our rights and freedoms were not all collected in one place, and were in many instances differently expressed from the language used in the Convention, we had them nonetheless. A high right is the liberty of the subject, which encompasses freedom of movement, and which was historically guaranteed by the judiciary by means of the ancient writ of habeas corpus. So the non-engagement of Arts 5 and 8 does not mean that when considering an application to impound a person's passport, questions concerning the liberty of the subject do not loom large. Far from it. As will be seen this is, and always has been, as key question in deciding whether to grant relief of this nature. As long ago as 1628 Sir Edward Coke declared that "the law favours liberty" (Institutes of the Laws of England, First Part (London, 1628) p124b.
12. Historically a restriction on the right of a citizen to leave the country in order to aid the prosecution of a law suit was effected by means of the issue of the writ ne exeat regno. The history of the writ was explained in a pellucid judgment of Megarry J (as he then was) in Felton v Callis [1969] 1 QC 200. Before 1869 at law a litigant had available the power of arrest and in this way a defendant could be coerced into giving bail. Equity lacked this power and came to adopt and adapt the writ ne exeat regno to achieve the same result. In Ex parte Brunker (1734) 3 P Wms. 312 at pp 314 Lord Talbot LC stated:

"…this writ should be taken out and granted with caution, as it deprives the subjects of their liberty: neither ought it to be made use of, where the demand is entirely at law; for there the plaintiff has bail; and he ought not to have double bail, both at law and in equity"

13. I note the early reference there to the use of the writ depriving a subject of his liberty.
14. In 1869 Parliament restricted the powers of the court to imprison for debt by passing the Debtors Act. The liberty favoured by the law had not extended much in favour of debtors, who were liable to indefinite incarceration in debtors' prisons. A specific debt-based power of imprisonment was preserved by s6. This remains in force and provides:

"Where the plaintiff in any action in any of Her Majesty's superior courts of law at Westminster in which, if brought before the commencement of this Act, the defendant would have been liable to arrest, proves at any time before final judgment by evidence on oath, to the satisfaction of a judge of one of those courts, that the plaintiff has good cause of action against the defendant to the amount of £50 or upwards, and that there is probable cause for believing that the defendant is about to quit England unless he be apprehended, and that the absence of the defendant from England will materially prejudice the plaintiff in the prosecution of his action, such judge may in the prescribed manner order such defendant to be arrested and imprisoned for a period not exceeding six months, unless and until he has sooner given the prescribed security, not exceeding the amount claimed in the action, that he will not go out of England without the leave of the court "

15. Thus under this provision four conditions must be satisfied before an order can be made which had the effect of preventing a defendant to a claim from leaving the country viz:

i) The action is one in which the defendant would formerly have been liable to arrest at law.

ii) A good cause of action for at least £50 is established.

iii) There is probable cause for believing that the defendant is about to quit the jurisdiction unless he is arrested.

iv) The absence of the defendant from the jurisdiction will materially prejudice the plaintiff in the prosecution of his action.

16. In Felton v Callis Megarry J had to decide whether s6 had abrogated the writ, and he decided that it had not. But he decided that:

"Accordingly, in my judgment, the writ can issue in the present case only if the requirements of the Act of 1869 are satisfied. Authority binds me to this result, but even if it did not, I should reach the same conclusion myself. Today, if Parliament intends a statute to apply to some equitable right or remedy, one expects Parliament to say so. But in times past Parliament was frequently not so explicit, and equity often acted by analogy. Thus, in a number of instances equity acted by analogy with the Statutes of Limitation; but now the comprehensive scope of the Limitation Act, 1939, has removed virtually every need or possibility of this. In the present case, I am concerned with an Act nearly a century old; and it is the standards of those days, when the administration of law and equity was still separate, that must be applied for this purpose. Colverson v Bloomfield was, as counsel for the plaintiffs emphasised, a case of a future debt, rather than a present debt; but this does not affect the basis on which the Court of Appeal dealt with the case, namely, that equity acted by analogy."

17. Megarry J then went on to consider the four conditions. In relation to the first he held that "in applying this to the writ ne exeat regno, what must be shown is that there exists the equitable equivalent of an action in which the plaintiff would previously have been liable to arrest at law". He went on to point out that confinement of the writ to equitable debts and claims was always subject to two exceptions one of which was a claim for alimony, because before 1857 the matrimonial courts had no jurisdiction to exact security. I do not consider that the arrival of that power deprived the matrimonial court from issuing the writ, and on occasions it has done so: see for example, Thaha v Thaha [1987] 2 FLR 142 (although in the circumstances of that case the writ was incorrectly issued after judgment as an aid to enforcement).
18. In Bayer AG v Winter [1986] 1 WLR 497 the claimants, a pharmaceutical company, began an action against the defendants, claiming damages in respect of the alleged wrongful worldwide distribution and sale of counterfeit insecticide purporting to be a product of the plaintiffs. Pending the hearing of the action the plaintiffs applied to the High Court for a freezing injunction and a search order requiring (i) that the defendants disclose the whereabouts of documents relating to transactions worldwide in which the counterfeit insecticide had been supplied or offered for sale; (ii) that they swear an affidavit setting forth particulars of such transactions; and (iii) that they deliver up the relevant document to the claimants' solicitors. The claimants feared that the first defendant would evade the effect of such orders by leaving the jurisdiction. They accepted that the writ of ne exeat regno was not available as the defendant would not have been liable to arrest at law before 1869 and therefore sought further injunctive relief, namely (i) that the first defendant deliver up his passports and (ii) that he be restrained from leaving the jurisdiction until the search order had been executed. The judge granted the freezing and search orders but refused to grant the further relief. The claimants appealed to the Court of Appeal, contending that the court had jurisdiction to grant the further relief under s 37(1) of the Supreme Court Act 1981, which provided that the court had jurisdiction to grant 'an injunction … in all cases in which it appears … to be just and convenient to do so'. The Court of Appeal granted the injunction. Fox LJ held at p502 B-D and 503C:

"The court has to exercise that discretion according to established principles, and the particular matter with which we are concerned at the moment, namely of an injunctive restraint on a person leaving the jurisdiction, is not one on which there appears to be previous authority. It is clear, however, that the law in relation to the grant of injunctive relief for the protection of a litigant's rights pending the hearing of an action has been transformed over the past ten years by the Anton Piller and Mareva relief which has greatly extended the law on this topic as previously understood so as to meet the needs of justice.

Bearing in mind we are exercising a jurisdiction which is statutory, and which is expressed in terms of considerable width, it seems to me that the court should not shrink, if it is of opinion that an injunction is necessary for the proper protection of a party to the action, from granting relief, notwithstanding it may, in its terms, be of a novel character.

…

The time during which the first of those orders should run should, and counsel for the plaintiffs accepts this, be of very limited duration. It is an interference with the liberty of the subject, so that the period should be no longer than is necessary to enable the plaintiffs to serve the Mareva and Anton Piller orders which they have obtained, and endeavour to obtain from the defendant the information which is referred to in those orders."

19. The report of Bayer AG v Winter reveals that Felton v Callis was cited to the Court. However, there is no discussion in the judgment of the impact (if any) of s6 of the 1869 Act and whether it applied analogously to an application for an order of this nature under s37 of the 1981 Act (just as it applied analogously to an application for the issue of a writ ne exeat regno).
20. In B v B Wilson J considered an application made by a wife for an order to be made restraining the husband from leaving the jurisdiction until he had satisfied a costs order of £68,099. As the application was made after judgment the writ was not available, and so the application was made under s37 of the 1981 Act. Wilson J held that the Court had no power to make such an order as a free-standing coercive enforcement measure. He held at p154 B-E:

"It is clear from the above that there are a number of circumstances in which under s 37(1) it is possible to restrain a party from leaving the jurisdiction and to make a consequential order for the surrender of his or her passport. The jurisdiction exists where the other party has established a right to interlocutory relief (such as an Anton Piller order) which would otherwise be rendered nugatory. It exists where a hearing is shortly to take place, the efficacy of which would be frustrated by his absence. In my view it exists in principle in aid of all the court's procedures leading to the disposal of the proceedings.

I consider that the jurisdiction is also available in some circumstances after judgment. To be specific, it can be invoked to aid the court's established procedures for enforcement of the judgment. In Thaha v Thaha [1987] 2 FLR 142, Wood J issued a writ ne exeat regno so as to detain a husband within England for a few days until the hearing of a judgment summons which was to be issued against him for alleged arrears under orders for maintenance. Although, with respect, the use of the writ was inapt at a stage after the orders for maintenance had been made, it seems to me that the judge's order was entirely permissible under s 37(1). Equally, I consider, contrary to the submissions of Lord Phillimore, that in the present case Bennett J had the power to make the order which obliged the husband to remain within the jurisdiction for 26 days pending his oral examination under RSC Ord 48. A judgment summons and an oral examination are both established procedures for enforcement".

21. In my judgment, it seems to me to be unanswerable that if an application is made within pending financial remedy proceedings for an order restraining a party to a suit from leaving the jurisdiction, whether by means of an application for the issue of a writ ne exeat regno, or by means of an application under s37 of the 1981 Act, the second third and fourth conditions mentioned in s6 of the 1869 Act should be satisfied. Any other conclusion would surely lead to the intention of Parliament as expressed in s6 being outflanked. For the reasons explained by Megarry J, the first condition does not apply to such proceedings. As to the second condition, while £50 was a lot of money in 1869 I consider that nowadays it is better expressed, at least for financial remedy cases, as "a good cause of action for a substantive award is established".
22. Finally I would mention the right to freedom of movement incorporated in EU law by virtue of the Treaty on the Functioning of the European Union (the successor to the Treaty of Rome) which provides in Art 21:

"21. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect."

23. The principal measure adopted to give effect to the EU free movement right is the Citizens Directive 2004/38/EC, which has direct effect. Its provisions include the following:

"4(1) Without prejudice to the provisions on travel documents applicable to national border controls, all Union citizens with a valid identity card or passport and their family members who are not nationals of a Member State and who hold a valid passport shall have the right to leave the territory of a Member State to travel to another Member State."

24. The rights under the Directive are qualified. Proportionate restrictions are permitted on public policy and public security grounds:

"27(1) Subject to the provisions of this Chapter, Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends.

(2) Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned.

Previous criminal convictions shall not in themselves constitute grounds for taking such measures. The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted".

25. In Jipa, Case C-33/07, the Court of Justice confirmed the central importance of the proportionality of any interference with freedom of movement from one Member State to another. It is for the national court to determine whether the requirement of proportionality has been met. That case also confirms that EU free movement rights extend to EU nationals who are impeded from leaving their own country.
26. Pulling the threads together it seems to me that the principles applicable to the disposal of this application are:

i) The power to impound a passport pending the disposal of a financial remedy claim exists in principle in aid of all the court's procedures leading to the disposal of the proceedings.

ii) But it involves a restriction of a subject's liberty and so should be exercised with caution. The authorities emphasise the short-term nature of the restraint. The law favours liberty.

iii) A good cause of action for a substantive award must be established.

iv) The Applicant must establish that there is probable cause for believing that the Respondent is about to quit the jurisdiction unless he is restrained.

v) And the Applicant must further establish that the absence of the Respondent from the jurisdiction will materially prejudice her in the prosecution of her action.

vi) Provided that the principles in (i) – (v) are carefully observed a passport impounding order will represent a proportionate public policy based restraint on freedom of movement founded on the personal conduct of the Respondent.

This case

27. This is a case with a lengthy history. It is only necessary for me to set out those facts which are needed to dispose of this application. H is now bankrupt, he says to the tune of tens of millions of pounds. W argues that he is lying on a massive scale and that he has secreted hundreds of millions of pounds and that his bankruptcy is fraudulent. Last year I conducted, but did not complete, an OS v DS hearing which certainly gave some interesting insights into H's economic history. Unfortunately, while W was represented at that hearing her counsel did not have the material to hand to lead me to make any findings, even provisional findings, about the scale of H's wealth, if any. Late last year W secured funding for her case to be mounted properly. Earlier this month I vacated the dates then fixed for the completion of the OS v DS hearing as it was obvious that the professional enquiry that I judged that W needed to make would not be completed by then, and I allowed the final hearing to be re-fixed for November 2012. It is W's intention to send a fresh set of highly searching questions to H for information and documents. She argues that he needs to be here to answer them properly and that if he does not then she will seek to coerce replies by means of positive orders, if necessary enforced by committal proceedings. All this requires H to be here. Were he not to be here the prosecution of her claim would be materially prejudiced.
28. H argues simply that he wishes his passport to return so that he can join with a friend of his (who happens to be one of his creditors) to help set up a charity in Africa. He says that he has complied with all requests for information made of him. He says that he has attended all hearings hitherto and that if he had vast sums hidden abroad he would be able to afford representation for himself. He says that it is a breach of his human rights for his passport to be impounded by the Court.
29. Although Mr Fitzgerald relies strongly on findings of dishonesty made by the Divisional Court against H in proceedings in which he was not a party I do not place much reliance on that. Rather, the factual aspects which I regard as key are as follows:

i) While I do not have much information as to the evidence which was relied on which led to the first seven restraint orders it is plain that the application for the seventh order was part and parcel of an overall enforcement application made by W referable to H's breach of earlier disclosure orders. On 29 June 2009 Parker J found H to be in contempt of court for his failure to comply with prior orders for disclosure dated 24 October 2008 and 27 March 2009 requiring him to answer in full a supplementary questionnaire dated 25 July 2008.

ii) Parker J sentenced H to six months in prison suspended for 92 days, the condition of suspension being that he reply in full to the supplementary questionnaire within that period.

iii) The order of committal contained a provision requiring the tipstaff to continue to retain H's passport until the next hearing on 28 September 2009.

iv) At the hearing on 28 September 2009 an order was entered which recorded H's undertaking to answer the supplementary questionnaire by 9 November 2009 and to give weekly updates of his endeavours to do so. And by consent an order was made impounding H's passport "until further order".

v) On 9 November 2009 H delivered his reply to W's questionnaire accompanied by 50 files of documents. In an affidavit dated 10 November 2009 in support of an application for release of his passport (which, it seems, was not pursued at that time) H stated "I believe I have substantially complied with Parker J's order".

vi) On 9 November 2009 Bennett J further adjourned the determination of the issue as to whether the committal should be activated, listed the 4 day OS v DS hearing and listed a further hearing on 17 December 2009 to consider various matters including maintenance pending suit and whether the retention of H's passport should continue.

vii) On 17 December 2009 Black J determined W's application for maintenance pending suit. She found that H had the resources to pay a substantial maintenance to W; she ordered that H pay to W her rent, school fees for the children and maintenance at £27,500 pm. H did not appeal that order. H has paid nothing under that order to date. Currently H owes W for maintenance alone £715,000. H did not pursue at that hearing the return of his passport.

viii) W's solicitors wrote to H's solicitors on 19 November 2009 making a series of complaints about his disclosure. That led to a reply from H's solicitors dated 16 December 2009. As to many of the points raised, the letter claimed that "Mr Young will use his best endeavours to answer the question raised". Mr Fitzgerald correctly states that "he clearly did not, because he has nothing to show for it. Nothing more has been heard since".

ix) At the hearing before me on 20 January 2012 H stated:

"I gave the replies to the questionnaire some two years ago. I have had no schedule of deficiencies. I have had no correspondence whatsoever with regard to my replies. I feel I have fully complied with the Court and I am asking for my passport back on the grounds that I believe I am in compliance with everything and that is my case My Lord, nothing more, nothing less."

x) Mr Fitzgerald rightly states that this is obviously not true, pointing to the correspondence referred to above. Moreover, he put in a four page schedule from W's new forensic accountants FTI setting out pitilessly in a preliminary exposé the scale of H's non-compliance in his replies.

Conclusions

30. H remains in contempt of Court. He is grossly in contempt in relation to his maintenance obligations. It is hardly an excuse for him to rely on his bankruptcy. I recall evidence at the OS v DS hearing to the effect that he continued to live at his Bayswater flat, Barrie House where the monthly rent of £4,000 was paid for by his friend Justin Williams as were all the council tax and utility bills; that he carried around cash of £3-400; and that he admitted to having received substantial cash gifts from "friends" citing amounts of £10,000, £7,000 and £5,000. Moreover he positively asserted that in the early days of the separation his friends had paid £1.2m for the maintenance of his wife and children.
31. The finding of Parker J that H is in contempt of court in relation to his disclosure obligations remains extant. It is for him to show that he has fully complied with his disclosure obligations, not for W to show that he has not. A mantra that "I believe I have complied" does not amount to a clear demonstration of compliance. In any event Mr Fitzgerald has convincingly demonstrated that there remain many lacunae in the disclosure sought, largely admitted anyway by the correspondence of his then solicitors.
32. I have reached the clear conclusion that W has established a good cause of action for a substantive award. Plainly, H is about to quit the jurisdiction. His asserted intention to travel to Africa to engage in charity work strikes me as highly implausible, and I consider that there must be some ulterior reason for his wish to leave the country. I am wholly satisfied that were H to depart W would be materially prejudiced in the prosecution of her claim for financial remedies.
33. My concern is whether a restraint for a further nine months until the final trial can comfortably sit with the emphasis on the short term nature of the restraint referred to in the authorities. I believe that the period here is at the extremities of the court's powers but I am satisfied that on the exceptional facts of this case it is justified, provided that it is accompanied by a liberty to H again to apply for a discharge.
34. H's application is therefore dismissed. I will hear the parties as to costs.