Jersey Unreported Judgments

[2005]JRC035B

royal court

(Family Division)

 

30^th March, 2005

 

 

 

 

 

Appeal, under Rule 15/2 of the Royal Court Rules 1992, as amended, by the Plaintiff/ APPELLANT from an Order of the Master of 16^th November, 2004, striking out the Order of Justice for want of prosecution.

 

 

Advocate C.G.P. Lakeman for the Plaintiff/APPELLANT.

First Respondent/RESPONDENT on his own behalf.

The Second, Third and Fourth Respondents /RESPONDENTS did not appear and were not represented.

 

 

judgment

the COMMISSIONER:

1.        This appeal from the decision of Master Wheeler given on 16^th November, 2004, is both unusual and complex.  It is unusual because the decision (for which the Master gave detailed reasons on 7^th February, 2005) arises from a divorce between the parties, which was made absolute in September, 1985, almost twenty years ago.  The parties have been in antagonistic dispute since that time.  We shall need to examine some of the matters that have been raised in other actions, during the course of what can only be described as a war of attrition between the former husband and wife.

2.        As we said in Heseltine-v-Strachan [1989 JLR 1], this is a hearing de novo and the Court's decision is not fettered by the decision from which the appeal is made, although, of course, in this particular case, due weight will be given to the Master's decision.

3.        We also have to say that the husband appeared in person.  We allowed him more latitude than we would have given had he been represented, but all in all we have no doubt that each party detailed the relevant arguments, so that we had a full grasp of the issues to be decided.

4.        The Master in his reasons says that: "the current proceedings were brought by the Plaintiff by way of Order of Justice in November, 2001."  That is not correct. The Order of Justice (brought by the former wife) is dated 22^nd October, 2001.  This is not the only Order of Justice brought by the former wife, for there is a further Order, obtaining injunctive relief and disclosure orders.  That Order of Justice, granted ex parte by the Court on notice on 8^th May, 2001, is extant and does not concern this hearing.  The extant Order of Justice is in the Family Division.  The present Order of Justice is in the Samedi Division.

5.        The Order of Justice that the Master ordered to be struck out is summarised by the Master in this way (we adopt his wording):

"The Order of Justice refers to the divorce in 1985 and says that the third defendant was the owner of the former matrimonial home.  The third defendant was itself owned by the first defendant until February 2000.  Subsequently, the first defendant transferred his shares in the third defendant to the second and fourth defendants.  The Order of Justice also states that maintenance orders were made and varied by the Matrimonial Causes Division of the Royal Court and there were a number of defaults by the first defendant.  As at the date of the issue of the Order of Justice in November 2001, arrears of maintenance amounted to £3,271.02.

The plaintiff claims that the transfers of shares made by the first defendant were shams or pretences and he remains beneficially entitled to the shares in the third defendant.  Furthermore, the plaintiff contends that at the time of the transfers she was a creditor of the first defendant and a victim of his fraud in effecting those transfers.  She alleges that the defendant was insolvent at the time of the transfers or became so as a result and the transferees were volunteers.  The plaintiff seeks declarations that the purported transfers were a sham or pretence or alternatively are voidable by virtue of the first defendant's fraud.  She seeks a revocation of the transfers and the transfer back to the first defendant of the shares concerned.  Various other orders are also sought concerning the sale of the property owned by the third defendant which was the former matrimonial home.

In his Answer the first defendant admits being the owner of the third defendant which in turn owned the former matrimonial home.  He admits transferring shares to the second and fourth defendants but contends that there was sufficient "cause" for those transfers.  In relation to the second defendant that cause was the provision of financial and emotional support and with regard to the fourth defendant the latter's support and involvement in the running of the first defendant's business. 

A procedural history of this action is not complicated.  The Order of Justice was issued by the plaintiff on 22nd October, 2001.  It came before the Royal Court as against the first, second and third defendants on 2nd November, 2001 when it was placed on the pending list.  The action against the fourth defendant came before the Royal Court on 23rd and 30th November, 2001.  Answers were filed by the first and second defendants on 12th December, 2001.  From the Court file it would appear that neither the third nor the fourth defendants have ever filed an Answer.  On 24th April, 2002, I ordered the first and second defendants to provide further and better particulars of their respective Answers.  This was done by the first defendant on 8th May, 2002 and by the second defendant on 17th May, 2002.

There was no further procedural activity in relation to the case until July, 2004, when the plaintiff issued a summons for directions.  Apparently in direct response to that summons the first defendant issued a summons seeking to dismiss the Order of Justice.  He subsequently issued a further summons in September, 2004, asking that the present proceedings be transferred back to the Matrimonial Causes Division from the Samedi Division.  Apparently, the action had originally being commenced in the Matrimonial Causes Division but had then been transferred to the Samedi Division."

6.        This is an opportune moment to consider the Memorandum of Agreement.  Although it is undated it was ratified by the Court on the 7^th June, 1985.  It was entered into by the parties prior to the decree absolute.  At the time the wife was advised by an Advocate with whom she has parted company.  That cannot concern us here.  We had to remind Mr Sloan from time to time during the hearing that he could not give evidence before us.  When he did so, the learned Jurats have been strongly advised by me to ignore such information and they have done so.

7.        There are two passages in the Memorandum that are particularly relevant:

"8.       That the Petitioner abandons any claim or interest she may have, as a beneficial owner of the shares or any part thereof in the property holding company and undertakes to execute on demand any documents by way of transfer of shares or otherwise as may be necessary for this purpose.

9.        That subject to the foregoing terms and arrangement".

(that referred particularly and inter alia to maintenance payments)

"The Petitioner waives and abandons any claims she may have for transfer of property or variation of a settlement or lump sum payment or any other transfer or payment of a capital nature which said claims do stand dismissed".

8.        On the 13^th August, 2003, there was a hearing before the Registrar of the Family Division where a maintenance order made by the Bailiff on the 1^st July, 1988 was reduced.

9.        The learned Registrar gave detailed reasons on the 11^th September 2003.  On the 1^st July, 1988, a review of maintenance was made by the Royal Court.  The learned Registrar said:

"Experience has shown that maintenance orders which are to continue "during the parties' lives or until further order" can cause problems as the parties approach retirement age. 

In this case, the husband is, and I believe the wife also, are both indeed beyond the normal age of retirement.  The husband has no provision for a pension, other than the States of Jersey Old Age Pension.  The wife, on the other hand, has been relying on fairly regular payments of maintenance from the husband.  To adjust to doing without such payments will be hard for her, however just the conclusion may be that the point has come when maintenance has to cease.

The 1988 order was varied in April 1991 by consent and it was these orders that both parties applied to vary by summons filed in the Family Division for hearing before me."

10.      The Registrar also said this:

"Clearly these new proceedings had all the hallmarks of an on-going matrimonial feud between the parties, in that they alleged that certain property, had been wrongfully transferred by the husband into the name of his partner, thus avoiding any potential claims from the wife.  It needs to be said again at this point that the decree absolute in this case was issued in September 1985 and the subsequent order made in 1988.  One has to ask oneself, whatever the past omissions or behaviour of the husband with regard to disclosure, when will the court bring to an end further opportunity of the wife to have another bite at the proverbial cherry and ask for more?

I had been asked in June 2001 to make an order pursuant to Rule 3/2 of the Royal Court Rules to transfer the Order of Justice proceedings to the Samedi Division.  I am, not sure why I acceded to the request, because it now seems to me appropriate that all matters connected with the on-going dispute between husband and wife should be consolidated and finally dealt with by the same Court.

On 28^th June, 2001, the wife filed an affidavit of means.  Apart from the submissions of her lawyer, Advocate Sowden, this was the only source of information I relied on at the hearing of 19^th April to represent her present situation.  She attended neither the hearing which eventually took place on 19^th April, 2002, nor the hearing on 12^th August, 2003.

On 1^st June, 2001, the husband swore his affidavit of means.

The hearing of 19th April 2002

On 19^th April, 2002, I heard the husband, now acting for himself, and the submissions of Advocate Sowden.  I also heard the oral evidence of his accountant A.  In a nutshell, the company S, still in existence was enjoying dwindling fortune.  The husband was still, himself, working hard.  The business relied on the use a particular industrial machine, now ageing, and it was difficult to train any one else to use it.  The husband's investments had crashed.  He had no pension.  The picture he painted was dire....    I was left with the impression that the husband was indeed telling me the truth.  I came to the conclusion that he no longer had the means to pay maintenance during the parties' joint lives.  Indeed, such an obligation would now be unfair to him.  I reduced the actual payment of maintenance by one half, ordering him to continue paying arrears which remained due, so that the amount received by the wife would remain the same for the time being.

I considered the idea that maintenance should be capitalised, or that some security be given, but such action would not have been appropriate.  If further consideration were to be given to such action, it would be right for such matters to be considered at the same time as the property matter (referred to in paragraph 13 above) was heard by the Court.

On making the order to cut on-going maintenance by one half, I also referred any further application by the husband to reduce the maintenance to the Inferior Number, with the intention that all matters would simultaneously receive the Court's attention 

Unfortunately that was not to be.  In fact, it does not appear that the wife has pursued the property matter at all.  The husband has, within the terms of the April 2002 order, now returned the matter of maintenance to me.

Hearing of 12^th August 2003 

As far as I can establish, the facts remain similar.  Both parties have filed further affidavits.  The husband works hard and is at last able to pay off the last of the maintenance arrears.  The company S depends entirely on his own efforts, despite his age.  He does not have any large capital resources. The wife has not, in my view, established any greater or any particular need for on-going maintenance".

11.      Mr Obbard reduced the maintenance to a nominal £1 per annum.

12.      There is a statement in the present case made by the Master to the effect that the terms of the Memorandum of Agreement is a binding document.  When the Master made his decision there were no summonses pending and all the arrears of maintenance had been paid. 

13.      The Master gave his decision on the 16^th November, 2004.  His Reasons followed on the 7^th February, 2005.  On the 1^st December, 2004, Mr Sloan served a summons on his former wife that she (or her advocates) attend the Chamber of the Registrar on the 15^th December, 2004, at 9.45 am to set the date "for a hearing of reduction of maintenance and related ancillary matters including ownership of a certain Co-Operative Insurance Policy".  That last point presents a strange anomaly.

14.      We know nothing more of the policy other than what is contained in the rather bland statement in Mr Sloan's summons.  If (as he told us) the policy is now worth some £30,000 it must have been a large policy in 1985.   We are perturbed that it appears to have been forgotten by both parties (who have each claimed shortage of cash) until one or both of them was advised by the Co-Operative Insurance Society that it had become due.

15.      If (and this is purely conjectural) the policy were taken out, in happier times, by the husband for the benefit of the wife to ensure that the wife be paid in the event of his death during the term of the policy outside of the estate and the husband not having died the policy has matured then some form of written confirmation is required.  Nothing in this unhappy scenario gives us any optimism and only a court order will resolve the matter.  The summons of Mr Sloan was delivered on 1^st December, a few weeks after the Master's order of the 16^th November 2004.  It does not seem to have been progressed with any enthusiasm.

16.      In his argument Advocate Lakeman says that "the delay in this action has not been caused solely by the Plaintiff and the delay on her part is reasonable considering the behaviour of the First Defendant.  He has aggravated and delayed the proceedings by refusing to take part in meaningful dialogues with the Plaintiff, even to the extent of refusing and/or ignoring requests for information".   That may be so and we can sympathise with Advocate Lakeman having to deal with a litigant in person and on behalf of a client who apparently is unable or unwilling to attend Court (she was not in Court before us, nor before the Master), but he has forensic means at his disposal to have brought this matter to a conclusion well within the three years of continuing family dispute.  The action was placed on the pending list on the 2^nd November, 2001.  The first and Second Defendants gave further and better particulars of their answers in May 2002.  They were acting on an order of the Master dated 24^th April, 2002. 

17.      It was only in July 2004, that the Plaintiff issued a summons "for directions" and it was then that the striking out application was made.

18.      In Beasant -v- Pavan and Public Health Committee [1997 JLR 270] the then Greffier Substitute cited a passage from Allen -v- Sir Alfred McAlpine and Sons Ltd (1968) 2 QB 229 where the Court said:

"It is thus inherent in an adversary system which relies exclusively on the parties to an action to take whatever procedural steps appear to them to be expedient to advance their own case, that the defendant instead of spurning the plaintiff to proceed to trial, can with propriety wait until he can successfully apply to the court to dismiss the plaintiff's action for want of prosecution on the ground that so long a time has elapsed since the events alleged to constitute the cause of action that there is a substantial risk that a fair trial of the issues will not be possible".

19.      The lapse of time was, of course, just one factor that caused the Master to reach his decision.  He has summarised the other leading factors.  He said that:

"(a)      It is accepted by the plaintiff that there are now no arrears of maintenance.

(b)       There are no outstanding summonses for hearing before the Family Division or any appeals outstanding from any decisions made by the Family Registrar or the Royal Court."

20.      We have, of course, the argument based on Mr Sloan's later summons.  A court will need to deal with the insurance policy.  It is too much to think that the parties will ever reach agreement.  Whoever hears the summons will no doubt bear the Master's decision in mind in considering whether the question of maintenance has been laid to rest.

21.      There is a default on the part of the Plaintiff in that she has delayed for a considerable time the issuing of a summons for directions. 

22.      Advocate Lakeman has gone to exhaustive lengths to show the reasonableness of his client's position.  He gave us an example.

23.      In her affidavit, the former wife says "that I have read the Affidavit of my son Stephen Peter Sloan (the Fourth Defendant where he states unequivocally that he did not authorise the transfer of his shares in the Third Defendant (Durisdeer Property and Finance Limited) to the Second Defendant (Sandra Valda Martin)".   We heard disturbing accounts of the same Stephen Sloan.  Letters of the 4^th July, 2001 were read where Mrs Sloan spoke of Stephen having delivered "unpleasant threats to her".  In an affidavit of means sworn in the course of this continuing war of attrition she swore that Stephen had lied to her when he told her that he had only six months to live.  She had offered to pay for his flight from Thailand to Holland.  There are continuing family disputes and medical problems within the family.

24.      We have listened carefully to everything that the parties have said.  We are particularly grateful to Advocate Lakeman who, in the absence of any agreed bundle of documents, has gone to some lengths to prepare a full bundle for our use.  We cannot say that the Master erred in his conclusion that to allow the proceedings by way of Order of Justice will cause any real problem to the former wife.  The Master has analysed the facts.  He has also given a fair review of the legal authorities upon which he based his decision and in particular the passages from the White Book.  As was said in that extract (paras 18/19/18).

"The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances and for this purpose considerations of public policy and the interests of justice may be very material".

25.      The White Book also speaks of the inherent jurisdiction of the Court in such matters.

26.      We entirely agree with the Master that to bring an action such as this after so long a time and which apparently seeks to revive matters that have been settled after detailed hearing is indeed an abuse of the process of the Court and accordingly, we uphold the Master's decision.

Authorities

Heseltine-v-Strachan and Co [1989 JLR 1].

Beasant -v- Pavan and Public Health Committee [1997 JLR 270].

Allen -v- Sir Alfred McAlpine and Sons Ltd (1968) 2 QB 229.

R.S.C. para 18/19/18.

Royal Court Rules 1992, as amended:  Rule 6/13.

Poole -v- Poole [1987 - 88 JLR N.5A].

Stephens -v- Stephens [1989 JLR 284].

Skinner -v- Myles & Public Health Committee [1990 JLR98].

Drake -v- Gouveia [2002 JLR N. 19B].

Garfield-Bennett -v- Phillips [2002 JLR N.42].