Appeal No. 2017/0028
ON APPEAL FROM HIS HONOUR JUDGE O'DWYER
SITTING AT THE CENTRAL FAMILY COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
|- and -
Mr Alex Tatton-Bennett (instructed on a direct access basis) for the Respondent
Hearing dates: 5 March 2018
Crown Copyright ©
Mr Justice MacDonald:
GROUNDS OF APPEAL
"AND UPON it being noted (i) that the underlying issue in the court below was whether it is the Husband or the Wife who is possessed of the parties' savings of about £340,000.00 and (ii) the two main sub-issues which fell for determination concerning the withdrawal of the said sum from Barclays Bank on 28 March 2013 were as follows:
a) whether the husband knew about the said withdrawal (which he denied he did) or whether, as asserted by the Wife, he participated in the said withdrawal by driving the Wife to the Bank, parking outside and driving her home;
b) whether, having got home with the money, the parties participated in a 'Skype' video call with the Wife's mother and sister in which they (the Husband and Wife) were both seen together with the said cash.
IT IS ORDERED THAT
1. Pursuant to FPR R 30.3(7) the Husband do have permission to appeal the orders and decisions herein dated 23 January 2017 on the basis of his case that, by reason of the evidence referred to in paragraph 2 below, the Judge erred in not changing his original conclusion to the effect (a) that the Wife was the one telling the truth about the said withdrawal of the cash and (b) that it was therefore the Husband who took and retains that cash.
2. The evidence referred to in paragraph 1 above is the following evidence provided on behalf of the Husband, namely:
a. that there had been no camera device on the relevant laptop in use on 28 March 2013, being the laptop said to have been used for a Skype video session that day;
b. that there were no traceable Skype video sessions on the said laptop that day;
c. that the Wife's mobile phone as at 28 March 2013 had no facility for video calls;
d. that the Wife 'texted' her sister Lyuda at 13.01 hours on 28 March 2013 in terms and at a time which, on the Husband's case, are inconsistent with the Wife's case in respect of there having been a Skype video session with her mother and sister;
e. that, on the Husband's case, it is most improbable that a car would have been parked on the pavement right in the front of the door to the bank concerned without coming up on CCTV and attracting a penalty, which did not happen."
The Final Hearing
"[The husband] is from Cyprus and his main savings account was held with the Bank of Cyprus. At the beginning of 2013 there were financial problems in the Eurozone and particularly in Cyprus. The Bank of Cyprus was in trouble and it was my understanding that they were taking steps such as freezing client's accounts. [The husband] was worried about his savings held with the Bank of Cyprus because he felt the bank's problems meant his money was at risk. Therefore, on 4 March 2013, he transferred his savings which amounted to £119,000 into my account. The other money in the account (£221,000) was my own personal savings. [The husband] however remained paranoid that other banks would face similar problems to the Bank of Cyprus and that we would lose all our savings. He therefore insisted that we withdraw all our money from my savings account. The withdrawal was his idea and done entirely with his knowledge and his help. I had to attend a meeting with an individual called Gina R in Barclays before withdrawing the money because it was such a large amount to withdraw. I do not recall Ms R's specific role but I believe she was a cashier manager or supervisor. [The husband] and I attended that meeting together. As the account was in my name, I had to sign a piece of paper confirming that I was aware of the risks of taking out such a large amount of money. I believe that I signed this piece of paper on the day of the withdrawal which was 28 March 2013. [The husband] had full knowledge of the money being withdrawn – as well as attending the meeting with me he drove me to Barclays Bank so that I could withdraw the money. The bag with the money in it was very heavy and as I was pregnant, [the Husband] waited for me with the car just outside the bank's front door. "
" Dr S called into the branch with a gentleman who was introduced as her husband and requested to cash £340,000 from her account. I took both individuals into the office to discuss further in private, explaining to them that this was a large amount of money to take out in cash and offered alternative ways to move this sum of money. I suggested that they take the funds in smaller amounts over a longer period of time for security reasons however the gentleman insisted the cash was to be withdrawn in one transaction. When I asked why, he commented on how he had withdrawn funds from the bank of Cyprus due to the financial crisis at the time and he didn't trust Barclays as he believed they were going the same way. I informed the customers that I would get back to them in the next few days, as this was such a large amount of money I had security procedures to follow. I placed a special cash order for the customer and made a telephone call to advise that the money was ready for collection. Both Dr S and the same gentleman came into the branch to collect the cash a few days later.
 I can confirm that I met with Dr S and the gentleman prior to the Applicant withdrawing the £340,000 cash from her account on 28 March 2013 for the cash request.
 I can confirm that the £340,000 was then withdrawn on 28 March 2013, following the previous meeting with Dr S and the gentleman. I can confirm that both parties attended the bank that day."
"Q. Do you remember anything that Dr. S said about why she wanted the cash?
Q. But you do remember her saying to you she wanted the cash arranged also?
A. Yes, because it was such a large amount and I did not really want to get this in and also from a safety point of view of actually leaving the branch with this kind of money.
Q. Did they have any answer to your point? Did you raise the safety point with them?
A. Yes, that was not a problem with them.
Q. Why what solution did they give to you?
A. They would have a car outside waiting and that was not a problem.
Q. Who said that they would have a car waiting outside?
A. I think it was Mr. S. I am not 100% sure.
Q. So you are not sure who said this?
A. No, it was a while back. It is hard to remember the little details.
Q. No, I understand that and sometimes memories are funny things. They can come back and play tricks on you or they can come up with what actually happened. So you said it was going to be to be difficult taking the cash and they said they could bring the car to the door?
A. So if that is what they wanted like I said
Q. How could you bring the car to the door?
A. On the side bit, you can park on the side.
Q. What do you mean by the side bit?
A. Just by the side of the branch it is by our front door."
"Q. Did you have any discussion with her as to how she was going to carry the money?
A. They said they had a car outside.
Q. Who said they had a car outside?
A. Dr. S.
Q. She said she had a car outside?
A. Yes, they were both there Mr. and Dr. S at the same time saying they had a car outside because I was worried about walking out of the branch with that kind of money.
Q. Where was the car outside?
A. I believe I was told it was just on the side road. I did not physically go out and check.
Q. When you are sitting at your desk, as I recall the bank, your desks face out towards the side right, is that right?
A. No, it faces the main road.
Q. Can you see the entrance door to your bank from the desk?
A. You can, yes.
Q. Do you remember seeing any car outside or being pointed to any care or any comment about it?
A. No, just that they had a car outside.
Q. You have handed over the money. Who has put it in the bag?
A. Dr S I think. Again I am not 100% sure.
Q. When you were handing the money over are you sure that there was someone else with Mrs S or are you guessing in the bank?
A. At the time, yes, there was two of them, yes, definitely.
Q. Because I think Mrs S told me she was the only person in the bank.
A. I am sure that there were two people or he had then got out to get the car.
Q. Just take it slowly. What do you recall?
A. There were definitely two people. I cannot remember if she then said, "My husband has gone to get the car" or "He is in the car waiting."
Q. No you're guessing again.
A. No, I do remember something about he has gone to get the car or he is in the car or are you sure you are safe taking it out.
Q. But you have told me there were two of them in the bank?
A. That is what I am saying he then went to get the car.
Q. Are you fairly sure about that?
A. I remember saying, "Are you okay taking this money out", and she said, "Yes, my husband is in the car outside."
Q. But you have already said there were two of them in the bank?
A. Yes, there were two in the bank but he then left to get his vehicle to bring it nearer to the branch.
Q. And this enquiry that you made are you definitely safe he was not there at that point, is that right?
A. No, he was in the car by then.
Q. So when you were handing over the money he was not there, is that right? Are you saying that or were they both there when you were handing over the money?
A. I cannot remember.
Q. Just take your time.
A. It is so hard to remember exactly who was where at what precise time. I cannot be 100% sure so I really cannot comment.
Q. When you were handing over the money it is not often in your life as a cashier that you hand over £340,000 in brown envelopes, so can you remember when you were handing over the money, it was being put in the bag, whether there was someone in addition to Mrs S or do you only remember her being there at that point.
A. No, I definitely remember I am sure there was two people.
A. When you were handing over the money.
Q. And at what point do you recall someone saying that their husband was getting the car?
A. I think I said, "Are you okay taking that money outside", and she commented that her husband was right outside the door with the car.
Q. Did she point out where her husband was?
Q. Did you watch her leave the bank.
A. Only so far as the front door."
"Q. If you just look at the first of those photographs...That is corner just outside your front door.
A. That is our front door, yes.
Q. You can see that front door?
A. From our tills you can see the front door.
Q. I have been told that on the pavement parked directly in front of the front door, probably about three or four feet away from it, yes, right there, sticking out into the middle of the road was a large silver Mercedes when Mrs S left. That is what someone has said. Do you have any recollection of seeing such a car?
Q. You saw her going to the door. The thing would have been parked immediately outside the door, about three feet away from that front door?
A. No, I do not have any recollection of that at all.
Q. Would you have noticed it had been there?
A. It is very hard to say.
Q. From where you were sitting in the bank?
A. I could have seen it, but I cannot remember.
Q. My concern is that if you have a large car park there it is likely to be very noticeable from inside the bank perhaps. I do not know. I was not inside the bank.
A. Yes, but it was not something I was looking out for.
Q. You saw her going to the door?
A. Once I had seen her leave the building that was it.
Q. But cannot say one way or the other?
A. No, I definitely cannot.
Q. If there had been a large car just parked immediately outside the front door that day right across the pavement all the way up there might someone have not commented about it or does the bank security not bother about that sort of thing?
A. No, we have always got things like that happening there.
Q. Things like what, sorry?
A. People double parking on the bus lane.
Q. What about parking right across the pavement, right across the front door, that is what I am talking about. Are you following what I am saying?
A. Right across here.
Q. Is that always happening?
A. No. Sorry, I thought you meant across where the bus lane is?
Q. No, I meant literally on the pavement right in front of the bank's door. You cannot recall seeing that?
Q. And you cannot say whether you would see it whether or not it was there?
" I heard from Mrs R in oral evidence. She was a clear and independent witness. At times course, as are many witnesses, she was little inclined to move to conclusions before identifying the evidence that supported them but she was clearly truthful and had a good recollection.
 She was clear that it was the husband who had also pressed for the withdrawals of the money. H told me the discussion had primarily been about raising a mortgage. Ms R was clear this was not the case. The reason she said for the husband's urgency was that he said he was worried that the savings would not be safe in the accounts should there be another recession or banking collapse. They explained to Ms R that they would have a car waiting outside the bank to collect the money.
 She also initially was clear in recalling H coming into the bank on the 28th. The Wife had no such recollection. Ms R in cross-examination says that she believed the same man attended who had been at the meeting on the 25th. Identification evidence is always difficult and I am very cautious about this finding. Nonetheless on the balance of probability I am satisfied that it was indeed H. The account of the Clerk does more realistically fit with the practical scenario that H parked up nearby, dropped in to check that W was collecting the money and then went to drive the car right up to the front of the bank. The brief time then necessary for the car to be parked outside the bank makes it more feasible that it could have occurred without comment from inside the bank. W had not initially recalled H coming into the bank itself."
" Having heard the evidence of the parties I went on a site visit with the parties and their solicitor. I found the following matters:-
(i) The bank was on the corner of a very busy road. I had been very sceptical about the W's account of the car being parked on the pavement outside the bank. However the account of the car having been parked outside the bank became possible in the light of the bank clerk's evidence (not given by the wife) that the husband had left shortly before the handing over the money to bring the car forward. There was space on the pavement just to help with the car for a very short time. It was unlikely but possible and I have concluded in the totality of the evidence probable.
(ii) From the bank clerks' position it may not have been possible to notice whether there was a car parked on the pavement outside the front door or not. Again I had been sceptical that a bank would have not been alarmed as a large car parked blocking the exit."
" ...Had it not been for evidence of the bank clerk I would have been extremely distrustful otherwise of both parties' evidence.
 The evidence of the bank clerk however was compelling. It was in contradiction on every significant point to the husband's account. It agrees substantially with the wife's account. Neither of the parties knew that the bank clerk was going in fact to be giving oral evidence until a late stage (although she had filed a witness statement) as she attended only at my insistence. Ultimately I make decisions on the balance of probability. The evidence of the bank clerk places that balance firmly in favour of the wife. I am satisfied that the husband was took part of the removal of the money from the bank. It was the husband's insistence that the monies were removed in cash. The husband was with the wife when the monies were removed and has lied about not being present."
" Those findings feed into my ultimate conclusion that although an extraordinary tale the wife's account is likely to be true. The money was shown to her relatives. The money was put in the bucket. And the money was retained by the husband. I am satisfied on the balance of probability Mr S had possession of the money and that he knows where it is now currently.
 H produced a text message which he says was inconsistent with W's account. However I am not satisfied with the reliability of the origins of the purported transcript. It is clear that the W was at work that afternoon from 4.28 pm."
The Application to Re-Open
"I made a request under the Freedom of Information Act about the cameras in Green Lanes in the vicinity of Barclays Bank. The response is exhibited showing that the cameras were active and that penalty charge notices were issued on 28 March 2013 using those cameras. I also include in that exhibit confirmation that no penalty charge notice was issued in relation to my car that day."
" The respondent, her mother and her sister have lied about making a skype call to her mother and sister in Belarus on 28 March 2013. I commissioned a computer forensic report by Computer Forensics lab to examine the equipment used to make Skype calls in the home. The investigations did not find any Skype communications between 1200 and 1400 hours for the user/ skype screen names 'pinsk4546', 'Tatyana' and 'Kolobok'. I attach and exhibit marked 'KV4' the report dated 2 February 2016 confirming the qualifications of the investigators, the methods used and the results. Further, I attach the whole log of Skype calls uploaded by the investigators marked 'KV5' to show the original source was the one used by the respondent at that time."
"The Skype history that has been served shows that there are no records of any calls being made or received after 18 January 2011 (i.e. no records of calls at all in 2013), only chat messages. This adds to lack of credibility in the report and W's belief that the data has been manipulated by H. The history which has been disclosed also show another significant gap of time between 23 June 2013 and 13 November 2013 – the assertion that there was no Skype communication of any kind in this period is simply not credible. Further, the assertion (in the report, rather than the history which has been disclosed) that there were no Skype communications between the dates 23 March 2013 and 3 April 2013 is implausible, given that W was (and is) in very frequent contact with her family in Belarus and these dates covered the Easter period and bank holidays in 2013."
i) Under records one 0556 and 10557 on 25 May 2013, only some 8 weeks after 23 March 2013, the wife is recorded as saying that she was "going to look for money under the house. I think he moved them somewhere else by now" and as saying "He does not give me money back. I only have 15,000. I won't be able to save even to pay tax by January. What am I going to do?"
ii) On 26 May 2013, again, only some eight weeks after the money was withdrawn, the wife is recorded as being encouraged by her sister to go look for the money. Having looked for the hole where it was said the money had been hidden the wife is recorded as saying, "the entrance itself is a small square hole. I would not be able to get through there even when not pregnant". The wife's sister told her not to try in case of injury and said "he did re-hide because he knows you won't be able to get there".
iii) Also on 26 May 2013, the wife is recorded as stating that "The problem is I am in a very difficult financial situation as [the husband] is keeping all our saved money (£350,000) and does not let me have anything from it".
" There is no evidence however of course that [in] this particular case all the movements of the car were picked up by the camera from the position they were while on the pavement in that side road.
 I am not satisfied that there is sufficient evidence of this matter that would cause me to reopen the findings as I made".
" Taking therefore the whole of the evidence I am not satisfied that the husband's evidence provides exclusionary evidence that the call did not take place as found in my judgment."
" The wife's case otherwise is that this is evidence that could have been obtained with reasonable diligence for use at the trial. It is submitted to rely upon this evidence the application set aside fails the Ladd against Marshall criteria.
 I have at this stage taken the broader view. I have considered each piece of evidence put forward by H both individually and in total setting all in the context of the evidence that led to my original findings.
 At the end of the day I am not satisfied that, if the evidence produced by the husband were taken into account in the matrix of the findings that I have made and in light of the other evidence received by the court, it would affect the balance of evidence so as to be capable of disturbing the findings that I made within the judgment. I have taken into account the full extent of the evidence produced by the husband and considered whether it is capable of affecting the findings made. I am not so satisfied.
 I should say that I reserved judgment given the amount of time taken at the hearing in order that I can review the whole of the evidence in this case. It is clear in my judgment that there were elements in relation to the wife's case that I was unsatisfied as to and I was anxious that the husband had full opportunity to expand against that background. Having reviewed all the evidence and having reviewed the evidence given before me I am not satisfied in the interests of justice that the husband's application to reopen the evidence in this case should now be refused and final orders made".
"The trial Judge has sat through the entire case and his ultimate judgment reflects this total familiarity with the evidence. The insight gained by the trial Judge who has lived with the case for several days, weeks or even months may be far deeper than that of the Court of Appeal whose view of the case is much more limited and narrow, often being shaped and distorted by the various orders or rulings being challenged."
DISCUSSION - PRELIMINARY APPLICATIONS
Application for Permission to Amend Grounds
i) The lateness of the details of the alleged facts asserted by the Wife in mounting her case which prevented him from obtaining evidence in rebuttal;
ii) There was no sworn evidence from the Wife in the proceedings and the Learned Judge wrongly relied on counsel's submissions;
iii) The husband was a vulnerable witness/party;
i) First, the application to amend was not only made late, but well after the deadline for making the application to amend set by Baker J on 8 November 2017. The order of Baker J of that date required the application to be issued and served by 29 November 2017. In the event the amended grounds were email to the wife on the afternoon of 21 December 2017.
ii) Second, I can see no reason why these grounds were not advanced at the time the original Appellant's Notice was lodged. There was no reason given as to why permission was not sought in respect of these points at that stage.
iii) Third, the additional grounds set out by Ms Moore appear to relate to the final hearing rather than the hearing of the father's application to re-open the findings made by the learned judge. Permission to appeal matters concerning the final hearing was refused by Bodey J. Permission was only given in relation to certain matters concerning the application to re-open. In any event, with respect to Ms Moore's assertion that the husband was "a vulnerable witness/party", Ms Moore conceded that at the final hearing the learned Judge agreed to all measures that Ms Moore requested for the husband and that no other requests for special measures were made. Ms Moore further conceded that her assertion that at the final hearing the husband did not have sufficient time to respond to the wife's case was, in effect, remedied by the fact that the learned Judge heard the husband's application to re-open his findings based on evidence he had by that time had time to gather.
iv) Fourth, all my attempts to clarify with Ms Moore what criticisms of the learned Judge were being made by the amended grounds met with failure. Ms Moore not able to articulate in any clear way what the new grounds contended that the judge did wrong. Thus, for example, it was not possible to obtain from Ms Moore any understanding of what criticism of the learned Judge was encompassed in the words "The husband was a vulnerable witness/party". Indeed, on the three occasions I attempted such clarification, Ms Moore simply came back to the narrow issues that Bodey J gave permission on, namely whether the judge reached the right decision in not reviewing his draft findings in light of the additional evidence by then produced by the husband in relation to the car and the Skype call.
Application to Admit Fresh Evidence
Application for Adjournment
i) The husband was the author of his own absence from the hearing. The husband chose to act in a manner that required him to absent himself from the courtroom, either by taking an overdose of medication or pretending to have done so. In the circumstances, the husband chose to absent himself from the hearing after it had commenced.
ii) The husband remained legally represented by counsel at the appeal hearing. Within this context, it is important to note that at the point the husband claimed to have taken an overdose and absented himself from the court room, Ms Moore had already taken instructions from her client at court and had commenced her substantive submissions on the appeal.
iii) Whilst I accept that the absence of her client deprived Ms Moore of taking instructions during her substantive submissions, I bore in mind that this is an appeal hearing on which the husband had given his instructions and not a first instance hearing at which a client is listening to evidence on which that client may need to give instructions as the evidence proceeds. Within this context, I note that at no point during the submissions she made subsequent to the husband leaving the courtroom did Ms Moore suggest that this court had reached a point where it could no longer proceed fairly without affording her the opportunity to take further instructions from her now absent client.
iv) I accepted Mr Tatton-Bennett's submission that the balance of prejudice caused by any adjournment would fall on the wife in circumstances where she was waiting to implement the order for sale of the former matrimonial home and where the husband remained in the former matrimonial home pending implementation of the final order. Within this context, I was not prepared to permit the husband to further frustrate the progress of these proceedings.
v) Whilst Ms Moore had informed the court that she took the view that the husband no longer had litigation capacity in light of his conduct in the courtroom and that, if the court did not agree to adjourn the case, it would be proceeding in circumstances where the husband lacked capacity to conduct proceedings, Ms Moore had been satisfied at the outset of the appeal that the husband had litigation capacity. Indeed, during submissions as to the admission of a medical report, Ms Moore confirmed in terms, and having checked again with her instructing solicitor, that the husband's legal team were satisfied having taken instructions that he had litigation capacity. There was no evidence before the court, beyond the husband's conduct in the courtroom, that this did not remain the case.
vi) More importantly still, at no point was it suggested that the husband lacked capacity when he had instructed his lawyers to appeal, when giving the instructions that informed the Appellant's Notice, the Grounds of Appeal and Ms Moore's Skeleton Argument or when giving instructions on the morning of the appeal before Ms Moore commenced her substantive submission, which, as I have noted, had commenced before the husband purported to harm himself. In the circumstances, at all relevant points during the course of the appeal save, possibly, during the balance of Ms Moore's substantive submissions after the husband left the courtroom, there is no suggestion the husband lacked capacity.
vii) Within the foregoing context, I was satisfied that any questions that the husbands conduct subsequent to the commencement of submissions on his behalf may have raised with respect to litigation capacity did not prevent the court from proceeding to hear the appeal.
DISCUSSION – SUBSTANTIVE APPEAL