England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/11/2014

MR. JUSTICE MOOR:

1. This is an application for permission to appeal an order that was made by Deputy District Judge Stanton on 8th July 2014 when, in effect, she dismissed the applicant husband's application for financial provision and directed that he return a Porsche motor car to the respondent wife and imposed a clean break. It is clear that there are a number of procedural matters that could be raised. I take the view I should ignore these and deal with the application on the merits. For example, it is said that the husband never actually made a claim, but I consider that I should not deal with this case on that basis.
2. I will have to give some very brief background. The wife is aged 51. She is the Group Brand Director of the R Group. The husband is aged 42. As I understand it, he is unemployed and relying on the assistance of friends. In 1993 he was arrested entering the United Kingdom and eventually convicted of importing heroin and given a 10-year prison sentence. He was recommended for deportation. In March 1999 he unsuccessfully applied for asylum. He was deported back to Pakistan.
3. In November 2008 the parties met in Pakistan when the wife went there to play polo. They married on 2nd January 2009 in Pakistan. Initially the husband was not permitted to enter this country as a result of the deportation order. The wife paid for a rented flat in Lahore costing £250 a month and gave him an allowance of £1,000 a month.
4. There were no children of the marriage, although the wife has one child, now adult, by a previous marriage. On 15th May 2011 the husband was granted a spousal visa for 30 months. He came to this country and resided with the wife at her property. The marriage was clearly not a success. I do not need to go into the reasons for that. It certainly got into difficulties in 2012. The divorce petition was presented on 14th August 2012. There was a brief attempt at reconciliation thereafter. The decree nisi was pronounced on 10th April 2013 and shortly thereafter the husband vacated the matrimonial home.
5. The wife issued her Form A effectively for the dismissal of all claims on 17th April 2013. A decree absolute was pronounced on 4th June 2013. The wife's Form E is dated 22nd July 2013. It deposes to net assets of £1,948,695 and an income of £300,000 per annum gross plus bonus. The husband's Form E is dated 4th July 2013. He indicates capital needs of £825,000. The judgment suggests that he indicated income needs of over £200,000 pa. I suppose that depends on how you interpret it. My reading of the Form E was £23,000 per annum, but it may be that was per month. In any event, it does not matter very much.
6. There was a first directions appointment before Deputy District Judge Petrou. There is some dispute as to what actually the Deputy District Judge said, but the attendance note that I have is that he indicated that he thought that the eventual award would be a lump sum to the husband in the range of £20,000 to £30,000. On 1st August 2013 the wife made an open offer of £30,000. The husband's visa expired on 3rd August 2013. He decided to appeal. That appeal, as I understand it, was heard on 16th October 2014. I am told that he has not yet heard the result. Various people have bandied about various possible outcomes of that appeal. It seems to me that it is irrelevant to the matter I have to decide.
7. The matter came before Deputy District Judge Stanton for final hearing. The case took some five days. The Deputy District Judge reserved her judgment and her eventual order was dated 8th July, as I have already indicated. She rejected both sides' conduct allegations. She did however indicate that she considered that the husband had been guilty of litigation misconduct in the way in which he had run the litigation. By then, he was appearing in person although he had previously been legally aided. She took the view that the indication that had been given by the Deputy District Judge was, colloquially, "spot on". She decided that as a starting point:

"I have concluded that, had the husband taken a more realistic approach to this claim and his evidence had been honest and forthright, I would have concluded that an award of £25,000 was the right amount and I would have made that award."


8. She has not been asked for further explanation of that. Mr. Marshall QC, who appears today on behalf of the wife, tells me that he had put in evidence, on the Wife's behalf, of property particulars in Pakistan showing that property could be purchased for £20,000 or rented for something in the region of £225 per month. Indeed he says that the husband's own property particulars show a rental of £235 per month. His case was that the correct order would have been a rehabilitative order that would either enable the husband to purchase modest accommodation in Pakistan and perhaps have a few thousand pounds left to tide himself over until his earning capacity was re-established. The Deputy District Judge found that he could do that in approximately one year. Alternatively, argued Mr Marshall, he could rent and have a greater income from the award over a longer period.
9. The Deputy District Judge agreed. She concluded that an award of £25,000 was the right one. However, the wife had many months earlier made an open offer of £30,000. It is right to note that the husband has been legally aided. It was clear that the Deputy District Judge, faced with the wife having run up £150,000 worth of costs, took the view that the right approach would have been to have made a costs order in favour of the wife to penalise the fact that the husband had not accepted the open offer. This was particularly the case given the indication from Deputy District Judge Petrou as to the likely award. As a result, all the litigation was the husband's responsibility and the wife should be reimbursed for as much as was possible.
10. It is clear that the Deputy District Judge took the view that reimbursement to the tune of £25,000 was fair and therefore made no award. In coming to that conclusion, she relied on the case of M v. M [1995] 3 FCR 321. This supported the contention that litigation misconduct, although generally reflected in orders for costs rather than in the quantum of the award, could make a difference to the award itself, in an exceptional case, where the husband's strategy had been so extreme that it would be inequitable to disregard it.
11. The husband filed a notice of appeal. He stated in that notice of appeal that the Judge had erred in several ways. He submitted that it was wrong for the Judge to reflect his circumstances in Pakistan rather than in England. That ground of appeal cannot, in my view, succeed, regardless of the outcome of his immigration appeal. The Matrimonial Causes Act requires the court to consider all the circumstances of the case. The Deputy District Judge, having heard the evidence and having seen the parties over some five days, was entirely entitled to come to the conclusion that he should in reality return to Pakistan and make his life there. His needs should therefore be considered on that basis. If he decided to stay here, in effect, on his own head be it.
12. The second ground for appeal was that there was a good chance that his immigration appeal would succeed. In my view, that is irrelevant for the same reason. The third ground was that the case should have been adjourned until the outcome of the appeal. Again, that fails for the same reason.
13. However, Holman J. when he heard the husband's application on 7th October came up with a potential fresh ground. Indeed, I have canvassed yet another ground with Mr. Marshall this morning. I certainly do not take the view that this husband should be denied the opportunity to run a good point if it is a good point just because he is in person and has not put it in his notice of appeal. The two points are effectively as follows.
14. First, Holman's J.'s point was whether or not it might be arguable that the figure of £25,000 was too low a starting point. The matter that I have raised with Mr. Marshall today is the effect of the costs order and whether it is appropriate to deal with it in that way if £25,000 was the right figure for the award.
15. To succeed in an appeal the husband has to satisfy rule 30.3 of the Family Proceedings Rules 2010. Paragraph (7) says that:

"Permission to appeal may be given only where (a) the court considers that the appeal would have a real prospect of success, or (b) there is some other compelling reason why the appeal should be heard."

16. There is certainly no other compelling reason why the appeal should be heard. The only question is whether or not the appeal would have a real prospect of success.
17. In AV v. RM [2012] EWHC 1173 I decided that the court is bound by a Court of Appeal case called Tanfern Limited v. Cameron MacDonald [2000] 1WLR 1311 that no judicial gloss should be placed on the words of the rules other than to say that "real" meant that the prospect of success must be realistic rather than fanciful.
18. Rule 30.12 governs the eventual appeal. It makes it clear that every appeal is limited to a review of the decision of the lower court unless various considerations apply, in particular, if the court considers that it would be in the interests of justice to hold a re-hearing. I cannot see that that would be the position here. The rule goes on to say:-

"The court, unless otherwise directed, will not receive oral evidence or evidence which was not before the lower court", and "the Appeal Court will allow an appeal where the decision of the lower court was either wrong or unjust because of a serious procedural or other irregularity in the proceedings in the lower court."

19. It is clear that this is a stiff test. Financial remedy applications involve the exercise of discretion. The exercise by a judge of this discretion can only be wrong if it was outside the bound of reasonable decisions that the tribunal could have taken. This used to be described by the phrase "plainly wrong", although it seems that that particular way of describing it has been consigned to history. The test, however, is still the same. It is highly unlikely that two different judges will exercise their discretion in identical ways. That does not mean that one of them is wrong. I have to decide if the exercise of discretion was unreasonable. A judge has to be fair. Was the decision unfair? If it cannot be said it was unfair the appeal must be dismissed.
20. I have come to the clear conclusion here that I cannot say that this appeal has a real prospect of success. I consider that despite what might be viewed to be the reservations of Holman J., the £25,000 figure was undoubtedly within the bracket which the Deputy District Judge could find was appropriate to fix the husband's needs.
21. I have already indicated that I am sure he cannot challenge the finding that his needs should be calculated on the basis of a return to Pakistan. Given the evidence that was before the Deputy District Judge and the fact that she heard these parties for some five days, she was, I have no doubt, entirely within her appropriate discretion to fix £25,000 as the right figure.
22. So it really comes down to whether or not she was plainly wrong to then take into account the fact that the husband had refused the open offer of £30,000 without giving it any serious consideration as far as I can see. The Family Procedure Rules have been changed to include a presumption of no order as to costs. Such a presumption can have a terribly serious effect on litigants. It can almost be that they are effectively blackmailed into making open offers because of the costs of the litigation. This wife dealt with that. She made an open offer to this husband a very long time before the final hearing that was at the top end of what the Deputy District Judge at the First Appointment thought he should be awarded. He should have accepted that offer without hesitation. Can it really now be said that it is reasonable for this court to ignore that and give him the slightly lower award anyway after the wife has incurred such huge costs?
23. I do take into account that she was unsuccessful in her application to rely on his conduct, but it is quite clear to me that her costs would have been way in excess of £30,000 even if she had merely been defending a standard application for a needs-based award after a marriage of this length.
24. The Deputy District Judge was more than entitled to apply M v. M in the way that she did. It just shows how seriously offers and particularly open offers in litigation such as this have to be taken by the parties. The court can have no truck with litigants who ignore reasonable, well-pitched open offers, proceed to trial at huge cost and then lose. I take the view that the fact that the husband was legally aided is irrelevant to that process and the Deputy District Judge was entitled to take the view that she did. I further consider that it is impossible for the husband to say that he has a real prospect of success as a result. I have therefore come to the conclusion that this application should be refused.
25. I should mention one further matter. In his oral submissions to me Mr. S argued that the Deputy District Judge was wrong because she should not have treated the marriage as a one-year marriage. It should have been treated as a four to five-year marriage. In my view, that is a misconceived submission. It is quite clear that the Deputy District Judge did not take the length of the marriage from the date on which Mr. S arrives here. She considered it from the date of the marriage in 2009 in Pakistan. So it is impossible for him to rely on that either. I therefore refuse this application.