England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		The Royal Courts of Justice Strand London WC2A 2LL
		31st July 2015

MR JUSTICE HOLMAN:

1. This is an ex tempore judgment which I begin at 4.50pm on the very last Friday of the summer term after a hearing which has occupied two days. Frankly, the entangled complexities of the relationship between these parties and their litigation could be the subject matter of a book. In the circumstances, I can only touch upon the more significant matters in outline.
2. I have before me a number of applications by a former wife, Vivien Rosalind Welch, and a cross application by her former husband, Denis William Welch. They are in fact now divorced by decree absolute, and the husband has remarried. This was a second marriage for both of them. They first met through some form of online agency. They began to live together in early 2007. They finally separated in 2013. They both have children from their previous marriages but none jointly of their own. The husband is now aged 66, and the wife is now aged 59.
3. It is quite clear that during the course of much of this marriage the wife continued to be engaged in litigation against her previous, first husband, Mr Harrison. As will emerge, that has had a profound effect upon their subsequent financial situations. In judgments in the present proceedings District Judge Hess has, in a number of places, described the approach of the wife both to that litigation against her first husband and this litigation against her second husband as obsessive, or obsessional, and indeed irrational. By way of example only, District Judge Hess said at paragraph 87 of his judgment dated 9 September 2014 that '…in this litigation, and in the previous litigation, the wife has…been obstinate, unrealistic and obsessive'. I stress that those are his words after hearing evidence over several days. They are not my choice of words; I merely repeat as part of the background what that judge concluded.
4. There was a final hearing as to financial remedies before District Judge Hess during September 2014. At that time, effectively, the wife had no remaining assets or funds of her own at all. Prior to this marriage she had owned the property in which in fact she still lives, called Inglenook in or near Guilford. But during the subsistence of the present marriage that had been transferred into the joint names of the wife and the husband, on trust, as to 99% to him and 1% to her. Therefore, at the time of the hearing last September that was effectively his house, not hers, although she remained, and does remain, in occupation. He in fact lives in Singapore. Therefore, she had no assets. She had no income. She owed an enormous debt standing, at that date, at about £414,000, as a judgment debt, together with interest thereon, to her previous solicitors, Withers LLP.
5. The district judge was faced with a dilemma that if he ordered the husband to pay a lump sum to, or make any other capital provision for, the wife, Withers, being possessed of their judgment, would be likely at once to seek to enforce it against the lump sum or capital so awarded. The way that District Judge Hess avoided that was to say that the wife must vacate Inglenook so that it could be sold, but that the husband must purchase a property, chosen by her, to a value not exceeding £250,000, in which she must be permitted to live for the rest of her life. Insofar as maintenance was concerned, he considered, and this is a matter to which I will return again later, that the wife did have an earning capacity, but that she still had a need for maintenance at the rate of £1,000 a month, or £12,000 a year.
6. The wife was dissatisfied with that outcome and applied to the High Court for permission to appeal. That application came before Roberts J. It became linked also with an application firmly rooted in the proposition that there had been non-disclosure by the husband, and deception by him of District Judge Hess. Roberts J ruled upon those applications in two written judgments which she handed down during February 2015, although I am unclear as to the precise date of the principal one. At all events, there is a typed judgment by Roberts J extending to some 34 pages, and 89 paragraphs, dating from February 2015 and an 'addendum' judgment extending to some further seven pages and 20 paragraphs, which does bear the date 20.2.2015. If I may say so, in those carefully crafted, written judgments Roberts J clearly considered both the relevant law and the factual matrix and circumstances of this case with very great care. Her conclusion was that there had not been any significant non-disclosure, or lies, or misleading of the court. She refused permission to appeal. It is important to stress that I, sitting at the same level as Roberts J, cannot of course in any way sit on appeal from her decision to refuse permission to appeal.
7. Economy and proportionality require that I do not again set out at great length the history and all the matters so fully and carefully described and analysed by Roberts J, in those two judgments. Therefore, so far as I am concerned, and this judgment is concerned, I incorporate them by reference. Anybody wishing to have a full appreciation and understanding of this case, and indeed this judgment, must first read those judgments.
8. It might have been thought that the matter would then have come to some rest, but the wife issued a further application to vary the maintenance order that District Judge Hess had made so relatively recently as 9 September 2014. In this regard it is relevant to mention that at preamble, or recital 2(a) of the order of 9 September 2014, District Judge Hess had recorded the following:

'District Judge Hess has expressed the following views in relation to any future application:- that, whilst it is not possible to debar a person from making an application under section 31 Matrimonial Causes Act 1973 to vary a spousal periodical payments order, the circumstances of the making of this order are such that a court would be very unlikely to consider favourably a variation application by either party'.

Clearly, therefore, an application issued and coming before him within nine months of that order, particularly containing that recital, was not perhaps the most promising of applications.

9. At the hearing on 2 June 2015 the wife, who on that occasion appeared in person, first made an application that District Judge Hess should recuse himself from hearing her application. The essential basis of that seems to have been that the wife believed that District Judge Hess and leading counsel, who from time to time acted for the husband, namely Mr Patrick Chamberlayne QC, had some sort of familiarity with each other, and specifically that they had both spoken together at some seminar a few months earlier. It appears that the truth with regard to the seminar was that on the same day they were both speaking at seminars organised by the same company, Jordans, but that one of them was speaking in Newcastle and the other in London. More generally, District Judge Hess was to explain in his ruling on the recusal application that it was probably true of every single barrister practising in this field that there may be casual social encounters between the barrister and judges, either after the judge became a judge, or indeed earlier when the judge was still a practitioner. As District Judge Hess said in paragraph 10 of his ruling on this point:

'This is probably true of every single barrister in this field. These social events have many hundreds of people at them at any one time. To suggest that a judge should recuse himself, or herself, on the basis of having attended an FLBA event at the same time as a barrister appearing before him/her is a completely inappropriate suggestion and totally without merit.'

10. One of the many applications before me is for permission to appeal from the decision of District Judge Hess not to recuse himself. I refuse permission to appeal. I absolutely agree with every word that District Judge Hess said in his judgment on that topic. Frankly, if every time a judge had had some passing encounter, social or otherwise, with a specialist barrister in a specialist field the judge had to recuse himself, there would be few cases that could be effectively heard.
11. The essence of the wife's application to vary at that stage was effectively a renewed assertion that the husband had failed to disclose material, and had lied to and misled District Judge Hess at the main hearing when the maintenance order had been made. At the hearing on 2 June 2015 the wife was permitted to cross-examine the husband at very considerable length over, as I understand it, about three hours. Notwithstanding the sustained cross-examination by the wife, the district judge clearly concluded in his substantive judgment of 2 June 2015 that he still considered the husband to be essentially an honest person who had been frank with his overall disclosure as to his financial circumstances. In the upshot, the district judge refused the application by the wife to vary upwards the maintenance order that had been made as recently as the previous September. In the course of his judgment that day he said, at paragraph 30:

'It seemed to me that the findings that I made about the way in which she has pursued litigation in September 2014 have, if anything, become worse. She is every bit and possibly more vengeful, obsessive, irrational and unjustified now than she was then…'

Once again, I stress that those are not my words, they are the words of the district judge who had, by then, heard from both parties at considerable length over an aggregate of about five days.

12. As well as rejecting the application for a variation upwards of the level of maintenance, District Judge Hess made what to my mind is a somewhat unusual order on 5 June 2015. Paragraph 16 of his order dated 5 June 2015 provides as follows:

'On the basis that the applicant will have a significant liability to pay the respondent's costs as set out in paragraphs 9 to 11 of this order, and on the basis that the amounts of costs sought (subject to detailed assessment) is in excess of the total liability the respondent has to the applicant under the term periodical payments order of 9 September 2014, the respondent's liability to pay periodical payments to the applicant under paragraph six of the order made on 9 September 2014 shall be suspended until such time as District Judge Hess shall further consider the matter following the outcome of the detailed assessments of the costs ordered at paragraphs 9 to 11 of this order and such other costs orders made from time to time hereafter. The court directs that the matter shall be considered by him by a paper application in the first instance following the detailed assessments of the costs orders herein. He may, at his discretion, decide to deal with the matter on paper or list a further hearing…'

That, as I say, is a relatively unusual provision in my experience.

13. As I understand the thinking behind it, the maintenance order was made at the rate of £12,000 a year for a fixed term (having regard to the age of the husband) of six years. In other words, the total amount payable by the husband until the ultimate termination of the maintenance order would have started out as £72,000. However, pursuant to costs orders already made, it was being asserted that (subject to detailed assessment) the wife already owed the husband costs of around £70,000. Therefore, District Judge Hess obviously took the view that it was wrong and unjust that on the one hand there should be an unsatisfied debt by the wife to the husband for costs of the order of £70,000, and on the other hand the husband should continue to be expected to pay, month in, month out, £1,000 a month to an ultimate total of about £70,000. Of course, one does understand the rough justice and thinking behind that approach. The other side of it is that the purpose of maintenance is to enable the payee, month in, month out, week in, week out, day in, day out, to provide a roof over her head, clothes on her body, and food and other necessities of life. It was indeed clear from paragraph 28 of the judgment of District Judge Hess of 2 June 2015 that his maintenance award had been designed simply to meet what he described as the 'basic need' of the wife, for he said at paragraph 28:

'This is not a case where I was attempting to share income, or award a percentage of the likely income. It seemed to me that the wife had a basic need of £2,000, some of which could be met by her own ability to earn and some of which should be met for a period of time by the husband…'.

Therefore, he was there clearly assessing her 'basic need' as £2,000 a month, or £24,000 a year, towards which he was requiring the husband to pay half.

14. It is not completely clear to me how, if the wife had a 'basic need' for the necessities of life of £2,000 a month, of which she herself could at best only contribute half by her own earnings, that 'basic need' could be justifiably put on hold in that way because of the outstanding amounts owed by way of costs. Clearly, in another case, and in different circumstances in which a maintenance order may have been made to meet more than merely 'basic need' but also a more generous standard of living, then there would be scope to restrict the payee to 'basic need' whilst there was an outstanding significant costs debt. However, given that the award itself was limited 'basic need', I have some reservations (I put it no higher) about the appropriateness of the order in paragraph 16 on the facts and in the circumstances of this case.
15. At all events, the wife was very dissatisfied also with the decision and order of District Judge Hess of 2 June 2015 and 5 June 2015, and so she added an application for permission to appeal from that decision and order to the raft of applications that are now before me today. As I understand it from the first page of her own 'position statement/skeleton argument' for the present hearing, dated 25 June 2015 (as revised 24/7/15), there are now the following applications, broadly, before the court, in the order in which she lists them. First, an application to set aside altogether the order of District Judge Hess of 9 September 2014. Second, an application to strike out the cross-application that the husband has made for a civil restraint order. Third, an appeal against the order for possession that District Judge Hess made in relation to Inglenook on 15 April 2015. Fourth, her appeal against the order of District Judge Hess, dated 5 June 2015, which is a reference, I think, to paragraph 16, which I have just quoted above. Fifth, an application that she has issued for permission to use documents from these proceedings in proposed proceedings in the Queen's Bench Division, and also in any prospective criminal proceedings. Sixth, an application to transfer all these matrimonial matters from the level of District Judge Hess to the Royal Courts of Justice. Although not expressly set out on that page of her position statement, there is also, undoubtedly, a current application for permission to appeal from the decisions of District Judge Hess not to recuse himself (which I have already refused) and his decision of 2 June 2015 not to vary upwards the maintenance.
16. I propose to refer first to certain aspects of the course of the hearing on 2 June 2015 itself. It is clear that the wife has a very, very longstanding complaint and belief that there has been repeated non-disclosure by the husband and the withholding of documents. The hearing on 2 June 2015 began, as I understand it, at the beginning of the normal court day, and during the course of the morning Mrs Welch (who was acting in person) was cross-examining her husband. She was very keen to see certain Singapore tax documents, and, in particular, his tax return in form B1, and the Singapore form IR8A for the calendar and tax year 1 January to 31 December 2014. The form IR8A is the Singapore equivalent of a UK P11D in which taxable expenses are returned.
17. No documents were produced during the course of the morning whilst the wife was clearly digging away to receive them. Immediately after the lunch break, as can be seen from the official transcript of the proceedings that day, now in the wife's red bundle at tab 4, page 32, Mr Jonathan Tod, who was appearing on behalf of the husband that day, produced some documents. Initially there was indeed a reference to 'the tax return'. It is, however, quite clear that the document which he produced was not the tax return but was the Singapore revenue authority's notice of assessment, dated 2 May 2015, with respect to the tax year 1 January to 31 December 2014. That showed, as Mr Tod explained, total income from employment of SGD$483,085, which I am told is approximately STG£240,000.
18. In an answer on bundle page 32, internal page 2 of the transcript, Mr Tod said:

'This is a notice of assessment of tax. It relates to the period from 1 January to 31 December 2014, so you see the top figure (employment) is SGD$483,000 gross…That I think is a mixture of various forms of income, including of course the SGD$339,000 net, which is the redundancy figure. The redundancy figure gross is SGD$413,540…'.

Mrs Welch clearly complained bitterly further down the same page that the document that was being produced was not the document that she was eager to see. It was the notice of assessment. She wanted to see the tax return, namely the form B1.

19. Moving on, and now at bundle page 33, internal page 3, Mr Tod also produced the accounts for the year ending 30 June 2014 from a firm called One World Maritime from which the husband derives income. The cross-examination then continued. It is quite clear that Mrs Welch was continuing to dig for production of the form B1. She said, at the top of page 35, internal page 5:

'…and that is a B1, and a B1, as you know, is a consolidated statement which adds in all your income, not just the tax return from IHC, because the tax return that you have produced here was from IHC…'.

In the middle of bundle page 36, internal page 6, the district judge said to Mr Welch, the witness: 'The simple question is do you happen to have the consolidated statement [viz the form B1] for the year 2014?' to which Mr Welch replied: 'I have submitted all the documentation I have, sir'. A little later, around bundle page 42, internal page 12, Mrs Welch started asking about the IR8A, to which Mr Welch said: 'I've got a copy of that document on my iPhone'. He appears to repeat that in an answer in the middle of bundle page 43, internal page 13. Also on that page Mrs Welch asked: 'Let's have a look at your phone again, shall we, to see if we can find the B1?' to which Mr Welch replied: 'This is the B…I've done a search of the documentation that I've received from my accountant. I've got the IR8A…'. It thus appears that, at any rate by that point of the cross-examination that afternoon, Mr Welch, who clearly had his mobile phone with him, had turned up, on the phone, both the B1 and the IR8A. Unfortunately, the questioning somewhat drifted away from those documents at that point and they do not appear actually to have been produced. Therefore, the first very strong point made by Mrs Welch during the course of this hearing is that there was continuing non-disclosure and deception by the husband in his failure at that hearing to produce the actual tax return, form B1, and the form IR8A.

20. There is then a further twist to the matter. There was a hearing before myself on 25 June 2015. On that date all these matters raised by Mrs Welch were listed, I think, for final hearing. Very, very tragically her own mother died about 24 hours before that hearing. Common humanity required that I should not embark upon a hearing of this kind when, understandably, Mrs Welch was deeply affected by grief, and extremely busy with organising the funeral. She did, however, appear before me that day. In court on that day she asked again to see the B1 for the year ending 31 December 2014, and the IR8A for that year. She said that she believed that the husband's solicitors were in possession of those documents. On that occasion Mr Patrick Chamberlayne QC was appearing on behalf of the husband. He said, on instructions, that Gordon Dadds, the husband's solicitors, did not have those documents, but to put the matter beyond doubt I made an order at paragraph 8 of my order that day as follows:

'Gordon Dadds must, in an open letter signed by a partner, and sent to the wife and lodged with the court…confirm, if it be the case, that they do not have in their possession now, and did not have in their possession on or before 2 June 2015, copies of all or part of any of the following documents in relation to their client, Denis William Welch:-

(i) his Singapore tax form or document IR8A…for the year ending 31 December 2014; or

(ii) his Singapore tax form or document B1 consolidated tax return for the year ending 31 December 2014; or

(iii) his Singapore B1 consolidated tax assessment for the year ending 31 December 2014.'

21. In response to that order a partner of Gordon Dadds called David Ruck wrote a letter dated 6 July 2015 to both the wife and, as it is headed, myself. That letter is relatively lengthy and I cannot quote from it at length in this judgment. It sets out, at the bottom of the second page, and going into the top of the third page, a number of tax-related documents in their possession, which they then attached to the letter in a bundle of documents which, during the course of this hearing, we numbered from pages 1 to 35. Mr Ruck categorically stated towards the bottom of the third page of the letter that Gordon Dadds have not come into possession of any other documentation relating to Mr Welch's tax affairs than those.
22. The letter also asserted that all those listed documents were disclosed to Mrs Welch 'in the lunch hour' at the final hearing of the variation application. It is now accepted by and on behalf of Gordon Dadds that that was an error. No documents at all were given to Mrs Welch during 'the lunch hour'. Rather, what happened was that the two categories of documents that I have mentioned, namely the Singapore notice of assessment and the financial statements for One World Maritime, were produced in the courtroom (and copies obviously handed at that moment to Mrs Welch) when the hearing resumed after lunch. In a case in which conspiracy theories abound, and Gordon Dadds know very well indeed that Mrs Welch is highly mistrustful of her husband, of any lawyers who act for her husband, and indeed of at least two judges, namely District Judge Hess and Roberts J (both of whom she has asked to recuse themselves), it was deeply regrettable that Mr Ruck did not take more care before drafting or signing off that letter to ensure its scrupulous accuracy. It has inevitably raised the index of suspicion by Mrs Welch during this hearing that Gordon Dadds asserted that that sheaf of documents were given to her during the lunch hour at the final hearing when in truth no documents were given to her during the lunch hour. Further, only a small part of the documents listed by Mr Ruck in the letter were actually handed to her at all during the day of the final hearing of the variation application.
23. Painstakingly, during the course of this hearing, we have, I think, finally established that all the documents, namely pages 1 to 35 of the documents attached to the letter of Mr Ruck fall in fact into three categories. A number of the documents were in fact exhibited to a statement of the husband, made on 27 May 2015, and were actually already in the hands of Mrs Welch prior to the hearing on 2 June 2015, so that is the first category of documents.
24. Some of them, namely the notice of assessment and the financial statements of One World Maritime, were handed across the table in the courtroom after lunch on 2 June 2015. That is the second category of documents.
25. There are in fact within the bundle two pages, now numbered 9 and 10, which were not exhibited to the statement of Mr Welch of 27 May 2015, and were not handed to Mrs Welch or District Judge Hess on 2 June 2015, and which, so far as I am aware, only first went over to her at all when she received this letter of 6 July 2015. That is the third category of documents. As it happens, those two sheets really do not take the case any further at all. They are essentially the statement of account as between Mr Welch and the tax authorities showing how much he has paid by monthly instalments, and how much he still owes at any one time, and they add nothing to Mrs Welch's knowledge and understanding, or that of the court, of the overall financial circumstances of the husband.
26. Therefore, it was, frankly, a bad mistake by Mr Ruck in the circumstances of this case to make the two categories of error which he made in that letter: first, saying that any documents had been handed at all to Mrs Welch during the lunch hour; second, saying that all the exhibited documents, that is pages 1 to 37, were handed to her at all that day, for actually most of them were not, although many of them she already had in her possession. Inevitably, this has raised in Mrs Welch a huge suspicion that, as she would say, 'once again' the husband and/or his solicitors are gravely misleading the court. She remained convinced that Gordon Dadds do have in their possession, and are withholding, the Singapore form B1 and the Singapore form IR8A for the year 1 January to 31 December 2014. For that reason I offered her the opportunity, which she rapidly accepted, to cross-examine and ask questions of Ms Emma Morris, the solicitor (though not a partner) in Gordon Dadds who has had considerable conduct of this case, and has been present in court throughout this hearing.
27. Ms Morris went into the witness box yesterday afternoon on affirmation. She was adamant that she had never seen the IR8A, or the B1 in question. She said, further, that she had caused a search to be conducted by various search names upon the computer system of Gordon Dadds to see if these documents were recorded anywhere in their system. She said she had 'put in every conceivable title' and the documents have not been identified.
28. In the light of that evidence of Ms Morris, which I unreservedly accept, I am personally absolutely satisfied that Gordon Dadds do not have in their possession now, and have not had in their possession at any time before or on 2 June 2015, either the husband's form B1, or his form IR8A for the tax year 1 January to 31 December 2014.
29. Insofar as those documents are concerned, it appears from the transcript that even during the hearing on 2 June 2015 Mr Welch had in fact identified them on his mobile phone, but at the last minute was not required or pressed to produce them. 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 District Judge Hess reached at that hearing.
30. I turn from that issue with regard to those documents to a number of other matters raised by Mrs Welch at this hearing. It is, I think, only fair to her to record that, if given the opportunity to do so, she could, over very many days, elaborate at very great length upon a vast range of matters in this case. She says, for instance, that there are still over 60 items of non-disclosure by the husband. She says that all this is part of 'a pattern of behaviour' and 'an abuse of process which has infected every single judgment in this case'. However, time has not, frankly, permitted me to go into the kind of intense and enormous detail that Mrs Welch would wish.
31. Her general attack on both the order of September 2014 and the order of 2 June 2015 broadly falls under two heads, which I take in no particular order. First, she says that as of today, late July 2015, there are a number of 'Barder' events. Here, it is perhaps appropriate to interpose that Mrs Welch is, if I may respectfully say so without wishing to be condescending, a woman of obvious high intelligence. She has addressed me throughout with great courtesy and charm. She is highly articulate. She has undoubtedly devoted immense amounts of time to her protracted litigation against two husbands over the last 15 years or so, and she knows a great deal more law in this general area of the law than most law students, if not their professors. Therefore, when I talk shorthand about Barder events, Mrs Welch, who herself uses that expression, knows exactly what I am talking about.
32. In a document addressed to me today, and dated 31 July 2015, she says at paragraph 8: 'Four major Barder events have arisen as at July 2015'. I will address each of those in turn. The first so-called Barder event is that she has produced a very recent email, dated 27 July 2015 (that is, earlier this very week) in which she says that Withers are now willing significantly to reduce or write off the debt. It will be recalled that as at last September she owed Withers, together with accrued interest, £414,000. We have roughly calculated that additional interest, to today, brings the debt today to around £440,000. However, she produces an email dated 27 July 2015 from Stephen Butcher, the revenue control manager for Withers, in which he says:

'Without prejudice, Dear Vivien, I have spoken to Andrew Wass [who I understand is a partner in the firm] who advises that if the sum of £150,000 (STG£150,000) is readily available, then Withers LLP will present you with a document that confirm that this amount would be accepted as full and final settlement of all amounts owing to them. Until you are able to confirm this as a formal offer of settlement, and the funds are readily available, then Withers LLP's position remains the same.'

Pausing there, I infer that the 'position' of Withers is that they will seek to enforce by any means available to them the full debt owing to them, together with interest thereon.

33. Therefore, the first point that Mrs Welch makes is that although District Judge Hess treated her as owing something of the order of £414,000 to Withers, and that that clearly influenced the manner in which he fashioned his award, she may now in fact only have to pay Withers £150,000, so, as she puts it in her document:

'Withers' debt being written off, save for £150,000, places £290,000 back on the assets schedule. The Withers' debt being central to the way in which the judgment was found, and how the assets were distributed, or not distributed in the wife's case.'

34. First of all, this is not in my view at all in the category of a Barder event. The fact that many months after the final hearing of ancillary relief a significant creditor may stretch out a hand of mercy and compromise to a debtor spouse is not itself a Barder event at all. Frankly, it may be no more than Withers feeling a sense of absolute desperation, having learnt the manner in which the district judge fashioned his order, which was highly benevolent to the wife in the circumstances, and highly disadvantageous to Withers. But in any event the email from Stephen Butcher is clearly on the basis that the sum of £150,000 'is readily available'. I am afraid that today Mrs Welch cannot put her hands to a pound, let alone £150,000. If (I stress if) I were to conclude that on the basis of this, or other so-called Barder events, the existing order should be set aside, the whole matter would of course have to be referred back to District Judge Hess for rehearing. I have no idea what he might decide, and, frankly, it could be many months indeed before there was any question of £150,000 being 'readily available'.
35. Further, before this could result in any benefit to Mrs Welch, whose overarching need is for a home, the district judge would have to conclude that she should receive capital which was the aggregate of what she reasonably requires for a home, plus £150,000. In view of the fact that the husband has already paid out very large sums towards the costs of the catastrophic litigation with the first husband, it may be that the district judge would take a great deal of persuading to make provision from the assets of the husband for £150,000 to pay to Withers. In my view, therefore, there is nothing in that alleged Barder event.
36. The next so-called Barder event is not, in truth, a Barder event at all. It is put as follows:

'New evidence proves funding of the historic litigation was not by the respondent, rather, by the wife, making a nonsense of the judgment's construction and meaning a total cost to the wife given the 100% add back of those costs…This new evidence (schedule of payments from Withers LLP) only arose as at 10 June 2015…'

In order to understand this point it is necessary to return to the judgment of District Judge Hess of September 2014.

[MR JUSTICE HOLMAN: I mention, for the record, that we have had a break now of about five to 10 minutes, between somewhere around 6.10pm and 6.15pm so that the staff could leave and probably most of us could go to the lavatory.]

37. In order to understand this point it is necessary to turn to paragraphs 31 and 32 of the transcript of the judgment of District Judge Hess of 9 September 2014. He dealt there with the extent to which Mr Welch, the husband, had funded, or contributed to the funding of the litigation by Mrs Welch against her first husband, Mr Harrison. District Judge Hess said:

'All of this litigation which took place between 2007 and 2012, almost exactly the span of the marriage, was disruptive and expensive. It is very clear on the evidence that I have been presented that this litigation was paid for entirely by the husband…' He then did some analysis of the figures and concluded that, '…something in the region of £500,000 was spent by the wife on her litigation, which was funded by the husband's money. That includes payment of Manches' indemnity costs order in the setting aside application.'

38. Therefore, there was a finding by District Judge Hess that the husband had contributed about half a million pounds of his money to funding the wife's litigation against her first husband. The document to which the wife refers, and upon which she relies as the so-called Barder event, is a schedule, apparently produced by Withers, showing the dates, and amounts, and descriptions of payments received on their ledger in 2006 and 2007. I infer that it does show the total amount received by Withers in relation to this litigation. The bottom-line total is, in round figures, £166,000. The first three items were received in or before August 2006, so Mrs Welch makes two points: first, those items, which total just over £40,000, could not have been funded by Mr Welch since she did not even know him at the time. Second, the bottom-line figure is £166,000, which is far short of the half million pounds referred to by the district judge.
39. There are, however, very considerable difficulties with this aspect of Mrs Welch's case. First, this material cannot possibly be regarded as a 'Barder event'. This is not something occurring subsequent to the decision and order of September 2014. Indeed it relates to matters occurring during 2006 and 2007, namely the making of the payments. Mrs Welch says she has only just received this ledger document from Withers. She says that solicitors who at one stage acted for her in the present litigation tried to get this information from Withers earlier, and that Withers, being themselves locked into litigation with her, were not forthcoming. Actually, I am not willing to accept that as an answer, since ultimately speaking the accountant, or a similar person, at Withers could have been required to attend the hearing on subpoena and bring his ledger with him, although patently it would never have come to that. The fact of the matter is that this material is not only not Barder material, but does not begin to satisfy the Ladd v Marshall criteria for adducing fresh evidence (I interpose that Mrs Welch is also very familiar with the case of Ladd v Marshall and that area of the law in relation to the admissibility of fresh evidence).
40. Further, this document does not in any way undermine the broad assessment by District Judge Hess that Mr Welch contributed something of the order of half a million pounds to funding the litigation. First, as the district judge himself said, he was including within that figure payment of indemnity costs of Manches, who I assume are solicitors acting at some stage for the first husband, Mr Harrison. The figure of those indemnity costs was apparently £221,000, so a total of the costs actually received by Withers of £166,000, and the costs paid to Manches of £221,000 is itself £387,000. Additionally, however, Mr Richard Bates, who appears today on behalf of Mr Welch (for him, like me, this is I believe a first appearance in this litigation, apart from my brief walk-on part on 25 June), has told me that additional payments were £126,000 to Charles Russell, and £93,000 to Mishcon de Reya. A total of all those figures is in fact £606,000, that is, over £100,000 more than the half million pounds assessed by District Judge Hess. Therefore, this is not a Barder event. The document from Withers is not admissible under Ladd v Marshall principles since the evidence was reasonably obtainable long before September 2014, and in any event it does not ultimately prove what Mrs Welch asserts.
41. I will refer next to the fourth of her Barder events. This is that:

'The respondent has not retired, has stated that he has no intention of retiring and was never unemployed, where the final judgment is completely predicated on that being true affecting the division of assets including the need to sell the family home…'

It does appear to be the case that Mr Welch has not yet retired, though whether not to retire amounts to an 'event' is perhaps something of a moot point, but at all events the district judge himself did not treat Mr Welch has having retired. At paragraphs 62 to 64 of his judgment of September 2014 he dealt with the working position and earning capacity of the husband. He quoted a passage in a statement in which the husband had said that he was trying to get work, that he had been unsuccessful and was fearing he might be at the end of his career, but went on to say that it may be that he will get work, and he is hoping he will get work to keep him going in Singapore, at least until next year. At paragraph 64 of his judgment District Judge Hess said:

'Broadly speaking, I accept that self-assessment. He may get something. I am not finding that for definite he will never work again, but it does not seem to me that he is likely to get anything very substantial, very long lasting and that he is very much towards the end of his working life.'

Therefore, in that passage District Judge Hess clearly foresaw that the husband might in fact continue to work, and was not making any definite judgment or assessment that the husband had retired, or would now retire. Therefore, the fact that the husband is currently apparently still working to some degree is not on any basis a Barder event. At most, it might impact on yet further consideration of the level of maintenance, which ties in with the alleged Barder event, number three. That is as follows. The wife says in her document, 'The wife, last week, was classified as disabled, being unable to work, by the health authority, and provides proof of that. The judgment relies upon her ability to work in order to support herself and the family…'

42. I make plain at once that this is not conceivably a 'Barder event' that in any whatsoever may undermine, or require reconsideration of, the decision and order of September 2014 in the circumstances as they then were. However, at that time, and indeed in his judgment of 2 June 2015, on the application to vary the maintenance, the district judge clearly took the view that the wife was, and is, capable of working and earning an income. He dealt with that at paragraphs 66 to 67 of his judgment last September. He said:

'The wife does not work at the moment, and has not really done any work since 2007, partly because she has been really a professional litigant in all of that time through all of this litigation, culminating in this litigation. She did work before that…I do not accept that there is any health ground which prevents her from working at the moment. She is resourceful and intelligent, and might have been rather better if she had put some of her energies into pursuing some work rather than pursuing litigation, but there we are. Even at age 58, it seems to me that it should be possible for her to find some work….There is no reason that I can see why she should not get some work. I accept that it is going to be a limited amount and for a limited number of years, but I see no reason why she should not earn at least £10,000, £15,000 perhaps, for the remainder of her working life until her state pension age probably'.

Pausing there, I believe that the current state pension age for a woman aged then 58, now 59, is probably about 67.

43. Therefore, in that passage the district judge was attributing to the wife an earning capacity of between £10,000 to £15,000 per annum, which indeed fits with a passage that I have already read out from paragraph 28 of the later judgment of 2 June 2015 in which he assessed her 'basic need' at £2,000 a month. Since he ordered the husband to pay £1,000 a month, there was clearly an assumption there that she could earn of the order of £1,000 a month herself. Quite clearly, in his June judgment, District Judge Hess did regard the wife as continuing to have an earning capacity of that order. He said at paragraph 29:

'It is perfectly plain that she is not seeing it in any way as her role to obtain remunerative employment. She has continued with her litigation mind set and the potential victim of that litigation mind set is the husband.'

At paragraph 34 he said:

'Her statement does not contain a single word about her attempts to get work. It is quite clear that she has not made any. She has told me that she has been "on the sick" as she put it since a day or two after the 2014 hearing. I have not seen the medical evidence which says that, I have seen some medical evidence from her purporting to justify non-attendance at particular court hearings, but it seems to me a fact that she has spent almost every working day since September 2014 pursuing this litigation. I repeat the point that I made in September that it would be far better if she put her energies into actually obtaining good remunerative employment than persecuting her former husband'.

It is therefore quite plain that in June District Judge Hess was continuing to treat her as having an earning capacity if only she diverted from pursuing this litigation to getting a job.

44. The document which Mrs Welch has produced at this hearing is a letter dated 20 July 2015 from Cosham Benefit Centre in Wolverhampton. This refers to 'a recent change' and 'a decision on your capability for work'. It continues, 'You meet the eligibility criteria for support group. This means you are not required to take part in any work-related activity…'. As a result of that, she is granted what is described as 'extra money' bringing her total weekly entitlement up to £123.70. The letter is certainly concise and I do not know what material or evidence was available to the benefit centre when making that assessment. That said, it appears, at least superficially, that the state (which is very sparing with spending money at the moment) has determined that the 'capability for work' of the wife is such that she is 'not required to take part in any work-related activity', and that the state will pay to her 'extra money'. If all that be right (and it may require a great deal of further investigation) it is of course possible that the conclusion of District Judge Hess in both September 2014 and June 2015 that Mrs Welch is fit enough to work, and capable of working, although correct then, may require reconsideration now. I stress that that is not a Barder event. However, whilst the very last thing I would wish to do is to encourage any further litigation at all, these new facts with regard to her health and work 'capability' may (I stress may) justify some reconsideration on a variation application, both of the level of periodical payments, and also of that provision in paragraph 16 of the order of 5 June 2015, which I quoted above. With regard to the level of periodical payments, District Judge Hess clearly thought that this lady requires approximately £2,000 a month to meet her basic needs. He assumed that she could herself earn at least £1,000 a month, and therefore required the husband to contribute only the other £1,000 a month. It may (I stress may) now appear that she cannot be expected herself to contribute £1,000 a month, and indeed that the most she can contribute is the monthly equivalent of £123.70 a week which she receives from the state. That would leave a quite significant shortfall.
45. The other point is that District Judge Hess reached the decision in June that the maintenance payments should be 'suspended' in view of the large amount of costs that the wife owes to the husband. As I observed earlier, in a case in which the maintenance order makes provision which has some 'generosity' within it, then it may well be an appropriate and acceptable approach to say that payments of maintenance should be suspended until the costs debt has been erased. In this case, however, we are now talking about subsistence. At the moment, the lady is apparently not capable of working. At the moment, she has a mere £123.70 a week, or £6,432 a year coming in, against an assessed 'basic need' of £24,000 a year. In those circumstances it may (I stress may) be that the provision of paragraph 16 of the order of 5 June 2015 requires reconsideration. Maintenance in a case like this is about subsistence. The lady has no capital assets whatsoever. She appears currently to have no income, or source of income other than £123.70 a week. It may be that there simply is not room in this case to suspend the maintenance any longer, leaving her on the breadline, however great her costs debt to her former husband. I stress these are not Barder events, but they do mean that I am not prepared in this case to make some kind of all-embracing extended civil restraint order that would preclude even the making of a further application to vary the level of maintenance.
46. I turn from those alleged Barder events to some of the other matters that Mrs Welch has raised before me today. In view of the hour, and the serious risk that this judgment may shortly cease to be being recorded because all recording machinery in the Royal Courts of Justice may get switched off, I must deal with this extremely shortly. She remains absolutely convinced that there has been serious non-disclosure in this case, notwithstanding, first, that District Judge Hess, although well aware of the contention, was quite satisfied that the husband was being open and honest. Second, that Roberts J, who scrutinised with the utmost care a great deal of further information introduced by Mrs Welch, concluded, most obviously at paragraph 18 of her addendum judgment, that, 'I did not, and do not, consider that this evidence is sufficient to justify a wholesale reopening of wife's financial claims against the husband…'. That, as I say, is a conclusion by a judge who is renowned for her ferret-like capacity to get to the truth of non-disclosure after a very careful scrutiny of the documents. She had said also, in paragraph 78 of her primary judgment:

'I can find no basis for finding that this is compelling material which justifies a reopening of these issues on the basis of a clear fraud perpetrated on the court by the husband. Contrary to the wife's assertions, in my view this "fresh evidence" proves very little, apart from the fact that the husband has been consistent in his efforts to secure further employment…I can find no cogent or reliable evidence to substantiate her allegation that he has placed funds out of the reach of the wife or the court, or that he continues a "champagne lifestyle", which would suggest that he has access to significant and (as yet) undisclosed funds…'.

47. During the course of this hearing, although undoubtedly she would like to have developed her arguments at far greater length, Mrs Welch has homed in in particular on the following matters. First, there is the question of whether or not there was undisclosed employment by a company called Ampelmann. At paragraph 14 of her addendum judgment Roberts J said, 'I have gone back to analyse the evidence which has been put before me on this issue and nowhere do I find corroboration for the wife's assertion that he was employed by this company prior to the hearing in September 2014…' Mrs Welch has returned to the fray and her profound belief that even before that hearing the husband was employed by, and in receipt of income from, that company. However, this was the subject of cross-examination and evidence during the hearing on 2 June 2015. At an answer at the bottom of the red bundle, tab 4, page 51, internal page 23 of the transcript, the husband said, in relation to that company:

'…I was first contacted by Ampelmann maybe in July or August…of 2014…I will make no bones about this. They had made some enquiries, then they went away. I heard nothing more until they had actually spoken to two of the ex-directors of IHC in Holland. It is a Dutch company. They didn't come back to me until I think it was November, and the first pay cheque that I got from them was in December, the middle of December, and I didn't get paid the full amount that we'd agreed in terms of my daily rate because I'd only worked half of the month…'.

He was asked whether he was still working for them, at the top of bundle page 52, internal page 24, and he said that he was still doing work for them, although he doubted that it would go on much further in view of the invasion of the company's staff by various private investigation enquiries that the wife had been making, and he continued by saying:

'I fully believe that my term with Ampelmann is going to be over in September [viz 2015] and what is more I am working under real duress with them. This is very young company. The person I report to is 34 years old, and I have been told variously by him to get my act together, and more recently that he was disappointed because I didn't have the killer instinct in terms of going for future business…'

48. Therefore, it seems to me that this whole issue about Ampelmann was further explored at the hearing on 2 June 2015 when Mrs Welch had the various documents that she now relies on. The husband was cross-examined. He gave that evidence, all of which is to the effect, as Roberts J had herself concluded, namely that he was not employed by that company prior to the hearing in September 2014. I am not in the least persuaded that there is now some basis for challenging and setting aside that order because of non-disclosure as at early September 2014 of some hidden employment with Ampelmann. In short, the employment with Ampelmann came later.
49. Next, Mrs Welch relies on an association between the husband and an organisation called GasPartners. At page 118 of tab 3 of her red bundle she produces a document downloaded from the Internet, headed 'Welcome to GasPartners'. This states that GasPartners is a joint partnership between various named people, one of whom is Denis Welch. A little further on there are photographs and brief biographies of the various so-called partners, and these include a photograph, which I am told is a photograph of, and a description of Denis Welch. Therefore, Mrs Welch has a deep conviction that this is a prosperous partnership from which the husband has been, and is, extracting a good income, and in which he may indeed have substantial capital. This also was the subject of cross-examination before District Judge Hess in the June hearing at bundle pages 20, 21 and 28, internal pages 38, 39 and 46 of the transcript, in tab 4 of the red bundle. In summary, Mr Welch described that GasPartners was a group of individuals, including himself, with whom he was trying to do business. He said, at bundle page 21, that he had had no income whatsoever from GasPartners, although he did not deny the existence of GasPartners. He explained that the purpose of the partnership was to try to develop an opening in Asia for the application of liquid natural gas as a fuel for vessels. The district judge asked, 'So have you earned any money from GasPartners since the September hearing?' Answer, 'None whatsoever. None whatsoever'. At page 28 there is the following:

'Mrs Welch: "So, Mr Welch, you lied to Roberts J…" Answer: "I've lied to nobody sir…What lie did I?" Question: "You did not disclose the GasPartners". Answer: "I've made no income from GasPartners…It's an opportunity to develop business in the future". Question: "No, it's more than income. It's", Answer: "It's not a going concern, it's not earning any money, and we have no contracts".'

50. Mrs Welch, of course, relies upon that downloaded document from the Internet, but that does not in fact disclose that it is generating any income, and so far as I am aware there is simply no reliable evidence to show that he does derive any current income of any significance from GasPartners.
51. The third area upon which Mrs Welch places much reliance is the whole area, which I have already described in considerable detail, of, as she would say, concealment and obfuscation with regard to his tax position.
52. I turn, therefore, to rule briefly upon the range of applications that Mrs Welch has made. I am not satisfied that any grounds whatsoever exist for successfully challenging and setting aside the order made in September 2014. There is no ground based in any significant non-disclosure. There is no ground based on a subsequent Barder event. I refuse permission to appeal from the decision of District Judge Hess not to recuse himself in June. I refuse permission to appeal, as an appeal, from any part of the decision and order of 2^nd or 5 June 2015. It has not been shown to me that at the time that he made those orders there was any error by District Judge Hess in his approach. I do, however, consider that grounds may exist now (I stress may) which would justify a yet further application to vary the level of maintenance and/or the current suspension on the actual payment of the maintenance.
53. Mrs Welch is required to vacate and give possession of the property at Inglenook by, I think, the end of today. She has of course already gained an extension of the giving of possession of roughly a month from my order of 25 June, which, as expressed in that order, I granted, '…as an exercise in common humanity, the wife's mother having just died and her funeral being on Friday 3 June 2015…'. Therefore, I suspended possession until at any rate the conclusion of this hearing, but I continued as follows:

'The wife must clearly understand that the possession order is necessarily consequent upon the underlying order as to financial remedies and that permission to appeal from that order has already been refused, and, accordingly, unless the underlying order is now set aside on some new and other ground, she must inevitably give possession of Inglenook and cannot expect further indulgence of the court.'

54. Therefore, as recorded there, Roberts J had already refused permission to appeal from the making of the possession order. For the reasons I have now given, I am unable, and unwilling, to set aside the underlying order of September 2014 on any ground, whether of non-disclosure or a Barder event, and so, very soon, the possession order must, without any possible basis for further extension, take effect. I will be willing, at the conclusion of this judgment, to hear an application as an act of mercy for some further relatively short postponement, because it would be inhumane and intolerable for Mrs Welch to be evicted by bailiffs tomorrow, or in the immediate future.
55. There is the application to transfer all these proceedings from the level of District Judge Hess (now His Honour Judge Hess) to the level of the High Court here at the Royal Courts of Justice. The essential effect of my decisions is that there is nothing now to transfer. There is a subsisting statutory right in Mrs Welch, or indeed Mr Welch, to apply to vary the continuing maintenance order, but there is not the least basis for transferring that to London, and indeed every reason why it should not be transferred to the Royal Courts of Justice. This is, in absolute terms, a very low maintenance order. This is a case which has been dealt with at considerable length by District Judge Hess, and it is a case in which any further application should be made to him with judicial continuity. It is no obstacle that he is now a circuit judge who sits in Portsmouth. Indeed, Portsmouth is every bit as local and convenient to Mrs Welch, who lives in or near Guildford, as is The Strand in London. In any event, the language of paragraph 16 of the order of 5 June 2015 contemplates continuing involvement by His Honour Judge Hess, as he now is, in this case.
56. That, I think, leaves the following further matters: Mrs Welch has asked on the one hand for some permissive order to use documents from these family proceedings in proceedings in the Queen's Bench Division. Mr Welch on the other hand has asked that I should make an extended civil restraint order. Mrs Welch has said today that she cannot in fact now afford to commence any further proceedings in the Queen's Bench Division, but, to put it bluntly, her mask slipped and she certainly would like to start suing Mr Welch for a range of matters, including perjury, and, she says, wrongful imprisonment in Singapore last summer.
57. In my view the conditions clearly exist in this case for the making of a civil restraint order pursuant to Practice Direction 4B attached to rule 4.8 of the Family Procedure Rules 2010, and the conditions exist for the making of an 'extended civil restraint order'. Mrs Welch has 'persistently made applications which are totally without merit'. Roberts J and District Judge Hess have both already certified that some of the applications made to them were totally without merit. I, for my part, am willing to certify, and do certify, that some of the applications made to me at this hearing are also totally without merit. Therefore, the essential requirement of paragraph 3.1 of the practice direction is satisfied.
58. Frankly, this bitter and intense litigation must be closed to the maximum extent possible, subject only to variation of maintenance, as I have described. It is quite extraordinarily destructive. It is phenomenally expensive. Mrs Welch, on top of all her other debts, now owes a costs debt to Mr Welch which has been billed at around £70,000, although it may be assessed as less. The very idea that she should now be permitted to start collateral litigation against him in the Queen's Bench Division is, in my view, beyond contemplation. I wish to make absolutely clear that I do not in any way whatsoever make a general civil restraint order. I say nothing whatsoever about any civil proceedings that she may wish to bring against any other person or body, for any reason, except Denis William Welch.
59. I make plain also that I intend specifically to exclude from the ambit of an extended civil restraint order the making of an application to His Honour Judge Hess to vary the current level of periodical payments, and/or for the discharge of the suspension imposed by paragraph 16 of the order of 5 June. Subject to that, however, there will be an extended civil restraint order. Mrs Welch strongly submitted that I should make a lesser 'limited civil restraint order', but the effect of that is only to prevent further applications within the proceedings in which the order is made. What she is threatening here is not merely further applications within these family proceedings, but applications against Mr Welch in the Queen's Bench Division.
60. For those reasons, there will be an extended civil restraint order in terms that have been drafted, and the draft of which has been discussed today, but the essential part will provide as follows:

'(i) Subject to subparagraph (ii) below, the applicant, Vivien Rosalind Welch, is restrained from making any further application against Denis William Welch in any civil court concerning any matter involving, or relating to, or touching upon, or leading to proceedings under case number GU13D00045, without first obtaining permission from His Honour Judge Hess sitting in the single Family Court at Portsmouth;

(ii) Nothing in subparagraph (i) above shall prevent the applicant from making a further application to His Honour Judge Hess for a variation in the level of periodical payments and/or the discharge of the suspension imposed by him in paragraph 16 of the order dated 5 June 2015, based on the grounds that in July 2015 Job Centre Plus determined that the applicant is not capable of working, and awarded her "extra money".'

61. Mrs Welch has also made plain that she would like to engage the police or other prosecuting authorities in an investigation of whether or not Mr Welch has committed perjury or other crimes. I do not of course in any way whatsoever prevent her from doing that, but, consistent with the making of the extended civil restraint order, I will refuse, or dismiss the application that she made for permission to rely upon documents disclosed in these proceedings in support of an action to commit Mr Welch to prison for contempt of court, false imprisonment, non-disclosure and any associated damages claim in the Queen's Bench Division, but that order will contain the following important words:

'For the avoidance of doubt, nothing in this paragraph of this order shall prevent either party, if he or she so wishes, from disclosing any document prepared of filed in these proceedings to the police and/or the CPS, and/or the Attorney General in support of any information he or she may wish to supply to them that a criminal offence has been committed by any person, or in defence thereof.'

62. That, I think, now rules upon all the applications that are before me by each of Mrs Welch and Mr Welch, save only the application by Mr Bates that I should make some order against Mrs Welch as to the costs of and incidental to this hearing, yesterday and today. I have already indicated that I refuse to do that. It may be that that decision of mine is not entirely in accordance with principle, this being an appellate stage, and ordinarily costs at an appellate stage follow the event. However, it is a decision sometimes necessary in family proceedings of this kind which reflects realities. The fact of the matter is that this lady has absolutely no funds and no assets. Currently, the only income available to her is £123 a week, payable by way of benefits. She already has phenomenal debts. She owes £441,000 to Withers, which she has not the slightest prospect of paying. She owes, it is said, £70,000 already to the husband under costs orders made to date. To my mind it is simply futile, and in the circumstances of this case, purely punitive, to add to that a yet further costs order for the costs of and incidental to this hearing, yesterday and today.
63. Further, there is an acute problem which now arises in these situations since the virtual total withdrawal of legal aid in private family law litigation. Formerly, a lady with absolutely no means such as Mrs Welch would most probably have been eligible for legal aid. That would have had two effects. One effect is that she would have been protected by provisions of the legal aid legislation against enforceable costs orders being made against her. The other effect was that people in the position of Mrs Welch were able at any rate to benefit from objective legal advice. It is, I am afraid, a problem which is increasingly faced now that litigants in person are denied any publicly-funded legal advice. They do their very best, and undoubtedly Mrs Welch has become a very proficient lawyer herself, but they are denied the advantage of objective legal advice. That has the effect that far too often we are now faced with days like yesterday and today in court. It is largely the responsibility of Mrs Welch, and in the words of District Judge Hess, her obsessive and irrational approach to these proceedings, but it may also be in part due to the denial to her of any publicly-funded legal advice.
64. Therefore, for all those reasons, albeit that it may be more merciful than principled, I refuse to make any order as to the costs of and incidental to the hearing, yesterday and today. I now record that it is 7.15pm, and on that note, I draw this hearing to an end.

End of judgment.

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