W. J. Bailhache, Q.C., Deputy Bailiff, sitting alone.
Ann Tennant Thompson
Advocate H. J. Heath for the Appellant.
Advocate T. T. H. English for the Respondent.
the deputy bailiff:
1. This is an appeal by the appellant against the decision of the Registrar, Mrs Canavan, on 29th May, to refuse to refer to the Royal Court the application of the respondent wife for ancillary relief under the Matrimonial Causes (Jersey) Law 1949. The reasons for the Registrar's decision were distributed to the parties on 23rd June.
2. The Registrar noted that the question of referral of the respondent's application up to the Royal Court had been raised on four occasions prior to the present application and that in November 2013 advocates then representing the parties had confirmed that their clients were willing for the case to continue in the Family Court. This was confirmed again at the hearing on 19th February, 2014. She noted that no allegations of lack of impartiality had been made and she was not asked to recuse herself. In giving her decision she said that she:-
(i) She did not accept that the appellant's perception that the lawyers for the respondent wife were running a campaign against him as a valid reason for saying he would not get a fair hearing;
(ii) the fact that the appellant had not been wholly successful in seeking a release of funds from an escrow account did not justify an allegation of a lack of impartiality even if the appellant might consider that to be so.
(iii) The proceedings had been ongoing since August 2012 and needed to reach a conclusion as soon as possible;
(iv) the fact that there might well be an appeal by one of the parties was not a reason for referring the matter up to the Royal Court and preventing the Family Court from dealing with it;
(v) the facts are not so complicated as to necessitate a referral up to the Royal Court and;
(vi) in dealing with the matter before the Family Court would provide finality more quickly and further delay would increase legal fees and stress.
3. I note that at the time of her decision a final hearing of the application had been fixed for 7th-10th July inclusive. This hearing was adjourned by consent on 2nd July and has been re-fixed for 8th-12th December. There will be a number of factual issues in dispute at the time of that hearing including the true capital positions of the parties, the extent to which the respondent has contributed towards those assets, the identity of what assets should be regarded as matrimonial assets, the earning capacity of the respondent, the length of time the respondent and the appellant actually lived together in Jersey and whether the respondent has been guilty of financial misconduct. There will be other issues raised by the respondent which may also require to be dealt with. There have been ongoing arguments about disclosure and about the release of funds to meet various expenses which both the appellant and the respondent have separately incurred.
4. I pause there simply to say that I have been advised in the course of this appeal that the amount of capital, involved, according to the document presented by the wife, shows a negative equity of some £4 million, although Advocate English, who was instructed by the wife, could not identify whether this was his document or not. I was also told that the appellant husband's assessment of the negative equity was that it was higher than that amount. I have been told that the fees incurred so far by the appellant husband are just short of £79,000 and at the last hearing the wife's fees were something in the order of £90,000. First of all, if these figures are accurate, one simply cannot understand what the argument is about and secondly, there is a real duty on the part of counsel and indeed the Court, to ensure that we cut to the chase as quickly as possible to avoid what is already a bad situation becoming worse.
5. I turn next to the Law on appeals. It is well established that the Family Court deals with the overwhelming majority of applications for ancillary relief consequent on a divorce. There is provision in the Matrimonial Causes (Jersey) Rules 2005 which enables such applications to be referred to the Royal Court. It is Rule 61, which reads like this:-
"The Greffier may (which is obviously discretionary) at any time refer an application for ancillary relief, or any question arising on such an application, to the Inferior Number for its decision."
6. As I say the first thing to note is that this is a discretion conferred on the Greffier to refer a matter to the Royal Court. Like all judicial discretions, it must be exercised reasonably and in accordance with the law. The Registrar should take into account all relevant factors and should disregard all irrelevant factors. I remind myself that the test on an appeal from a decision of the Family Registrar is that such appeals should only be allowed if there has been a procedural irregularity or, if in exercising his or her discretion, the Registrar has taken into account irrelevant matters, ignored relevant matters or otherwise arrived at a conclusion which the Royal Court considered to be wrong. That test places significant weight on the Registrar's findings of fact and exercise of discretion to discourage litigants from seeking a different result in the Royal Court. But of course the Royal Court retains the ability to intervene if it considers that the Registrar went wrong to the extent that intervention was required in the interests of justice and fairness and the authority for that proposition is the case of Downes-v-Marshall  JLR 265.
7. There is no decision of this Court which sets out when the Greffier should refer an application for ancillary relief to this Court for its decision nor is it desirable, in my view, that the Court attempts to be prescriptive about the matter. The Registrars are all experienced family practitioners and are well-placed to exercise a discretion as to whether a case is better dealt with in the Royal Court as opposed to the Family Court.
8. In the bundle of cases put before me there was reference to the decision of Commissioner Clyde-Smith in Warn-v-Konetta  JRC 202 where he said this:-
"At the request of the Respondent, her application for ancillary relief was referred up to the Inferior Number of the Royal Court because complex issues of law may arise, namely:-
(i) The validity of a separation agreement
(ii) The relevance of the value of the former matrimonial home, now owned by the Respondent's parents, subject to a life interest in the name of the Respondent."
9. I note that that description was one of the reasons of the respondent's request in that case. They may or may not have been sensible reasons and the Commissioner's judgment does not indicate there was anything contentious about the desire to refer the matter up to this Court. Now without being prescriptive about the circumstances which might lead to a decision to refer a matter up it is obvious that sometimes it will be more convenient for such a reference to be made. These cases will, no doubt, include big money cases, in which one frequently finds that more refined legal or factual issues arise for determination than would be the case in matrimonial proceedings where the extent of the assets is much more limited and certainly than in cases where, if it is so, the extent of the assets is represented by a negative equity. Even in cases which do not fall into the big money category, there may be complex points of law which can be identified at a relatively early stage where again it would be desirable to refer the matter up to the Royal Court. In all these cases the Registrar will be balancing the advantages of having the matter heard in the Royal Court as a court of first instance, including sometimes the saving of costs by following that course, against the undoubted disadvantage that the Family Court is able to provide, generally, a speedier and, accordingly one hopes, a less expensive route for resolving the difficulties between the parties. In this case the Registrar was also concerned at delay which would cause increased stress to the parties; and I entirely endorse as a relevant factor the question of stress which parties go through in handling emotionally challenging proceedings of this kind. Advocate Heath did not really contend that this was a very factually complex matter with the legal issues which are not straight-forward, although if I may put it this way, she hinted at it.
10. The Registrar clearly did not consider that there were any particularly novel points of Law which required the attention of this Court or that the facts were so complex that they could not be dealt with by her. I cannot say she was procedurally irregular in reaching that conclusion nor that she had taken into account irrelevant matters or ignored relevant matters or otherwise arrived at a conclusion which was wrong. It was said that she was wrong to indicate that she did not take into account the probability of an appeal by one of the parties. What she said was:-
"The fact that there would probably be an appeal by one of the parties is not, in my view, a reason why the matter should be referred up to the Royal Court and the Family Court level cut out."
11. I do not think she was wrong in reaching that conclusion. No-one can know whether it is likely that there will be an appeal in the majority of cases. People no doubt may be anxious about a hearing before the Family Court if interlocutory decisions have not gone their way but it is a very strong principle of law that the litigants should not be able to select their own judges and if it were the case that a litigant should say to the Family Registrar "well I am going to appeal your decision and that is why you should not deal with it", that would have the effect of a litigant being able to select his or her judge. So I do not find that the Family Registrar was wrong in principle in finding as she did there and I think generally there is nothing in that ground of appeal which Advocate Heath proposed.
12. The second ground of appeal is that the Registrar clearly concluded as a reason for rejecting the application that there was enough time to deal with documentary disclosure and evidential disclosure prior to the final hearing which at the time she gave her decision was expected to take place some two or three weeks later and yet, as has been indicated, the parties were not in fact ready for the final hearing and only a few days after the delivery of the Registrar's reasons agreement was reached that the final hearing should be adjourned.
13. I note that on 18th August the Relief Registrar made a number of orders in relation to an escrow account and in doing so he added:- "As soon as this case is heard the better, a final hearing will deal with the case comprehensibly and there will no longer be any need for succession of interim orders of this nature which only contribute to the legal costs." The views then expressed at that later date resonate with the Registrar's comments at paragraphs 10 and 14 of her reasons that this case has been going on for a long time and has undoubtedly cost the parties a considerable amount in terms of legal fees. These were good reasons why the Registrar could properly reach the view that the progress of the application to date should not be disregarded and that a final date for the hearing should be a priority. It was not her decision to have the matter adjourned because that was a proposal which was agreed with the consent of both parties. I do not see anything in the criticism that the Registrar's view that disclosure issues could have been sorted out has been shown to be wrong in practice. There is no evidence which conclusively demonstrates that it was.
14. I think the final point which was raised on this appeal is that the Registrar did not properly understand the nature of the appellant's application to her which was not that he would not receive a fair hearing but that he perceives he would not receive a fair hearing and as Advocate Heath expanded that in her submissions to me, it was on the basis that so much had gone on in the history of the interlocutory applications that she, the Registrar, would be unfairly influenced against him. In that context the following points need to be made:-
(i) Experience has shown that it is not at all uncommon for a party to lose a number of interlocutory applications all along the line and then find that he or she has been successful when it comes to trial;
(ii) The second is that the test is not whether a party believes that he may or may not get a fair hearing. When one is dealing with questions of apparent bias, and there is a very strong corollary here, the Court should ascertain all the relevant circumstances and then ask itself whether a fair minded and informed observer would have concluded that there was a real possibility that a Judge was biased. That is an objective test;
(iii) The next reason is that it is obvious that the fact that some preliminary applications made by a party were unsuccessful may well lead to that party feeling aggrieved and sometimes may lead regrettably to that party having a perception that he will not have or has not had a fair hearing. That of itself does not give rise to any objective fair-minded and informed observer considering there was a real possibility of bias and it is worth just referring back to the comments of Lord Hope in Helow v Home Secretary  1 WLR 2416 as to what the informed observer and fair-minded observer is. He said this:-
"The observer who is fair-minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious. Her approach must not be confused with that of the person who has brought the complaint. The real possibility test ensures that there is this measure of detachment. The assumptions that the complainer makes are not to be attributed to the observer unless they can be justified objectively. But she is not complacent either. She knows that fairness requires that the judge must be and must be seen to be unbiased. She knows that Judges, like anyone else have their weaknesses, she will not shrink from the conclusion if it can be justified objectively that things they have said or done or associations that they have formed may make it difficult for them to judge the case before them impartially."
Well, in this case no point was taken before the Registrar that she should recuse herself and, in fairness to Advocate Heath, she has not suggested that before me either. The only point that has been made is that the appellant perceives that he may not get a fair hearing and that subjective test is one which I reject; I do not think it is appropriate, once again because it could too easily lead to a litigant in practice choosing his or her own Judge.
15. Advocate Heath also relied on a dicta from the judgment of Bennett JA in the case of In the matter of II  JCA 126 at paragraphs 59 and 60. In that case the Family Registrar had stated that:-
"Unpalatable though it might be, it may be for the Court above to consider dismissing some or all of her claim for relief. The ongoing dispute with her husband could, in my view, be described as a "vendetta"".
It was alleged in the Court of Appeal in that case that a case summary provided by the Registrar had been put before the Jurats whereas the appellant considered that the Commissioner had misled her by suggesting that it would not be before the Jurats and the Court of Appeal judgment shows that neither advocate had any recollection of the Commissioner saying that the Registrar's summary would not be before the Royal Court. Indeed the respondent did not allege or place before the Court any evidence that the appellant was in fact conducting a vendetta against him. What Bennett JA said was this:-
We have to say we cannot see that the Registrar's comments in his summary played any part whatsoever in the hearing before, or in the decision of, the Royal Court. We completely reject the implied suggestion in the penultimate sentence of Ground 2(h) that the respondent's lawyers had any hand in the compilation of the Registrar's summary. This ground of appeal is without foundation."
16. When one reviews those comments in the context of the whole judgment it appears to me to be clear that Bennett JA was not suggesting that the Registrar had expressed any point of principle when he indicated his reasons for referring the matter up to the Royal Court and in particular when he asserted that the appellant appeared to have lost confidence in the Family Court. The same is true of the judgment of the Royal Court which Advocate Heath passed up to me in the course of argument.
17. In my view there is no such point of principle. It may well be that on rare occasions a Family Registrar may take the view that in all the circumstances it is in the wider interests of justice, perhaps for example if there are ongoing acutely sensitive issues involving a continuing relationship with children, then the better course where a party has, without objective justification, lost confidence in the Family Court is to refer the matter up to the Royal Court. But that is, at its highest, only one factor which is capable of being taken into account because the fair-minded observer starts from the premise that the job of the Family Court is to deliver justice and any perception that it will not deliver justice has to be shown to be reasonably founded on some factual basis. Nothing of that kind arises here and I think the Registrar was perfectly entitled and right to take the decision which she did. I have noted the UK Civil Procedure Rules which Advocate Heath drew to my attention and which at paragraph 30.3 (ii) make clear the criteria for a transfer of case from the County Court to the High Court. These criteria understandably seem sensible and it may be for consideration as to whether they should be adopted to explain the way in which Rule 61 of the Matrimonial Causes Rules should be applied but there would be a need for consultation with all the relevant parties including the profession and the Registrars and the Bailiff before that took place. I have to say that if those criteria had applied here they would not justify a transfer from the Family Court to this Court in my judgment.
18. It would have been obvious from what I have said earlier that I am very troubled by the apparent level of costs being incurred and the negative equity which is asserted and indeed, when Advocate English said to me that more disclosure was needed to deal with what was apparently an income stream difficulty, at the moment I cannot quite see how that income stream difficulty, even if it were to exist, is going to have much of an impact on the negative equities which the parties assert exist. That is of concern because clearly courts must be especially astute to examine very carefully the complaints of non-disclosure but there is a threshold which needs to be passed, namely that if there is any non-disclosure it is likely to make a difference before very heavy costs should be incurred, but I do not know enough of the circumstances which apply in this case. I just have been told enough to make me worry about the extent to which further costs are going to be incurred on arguments of non-disclosure. At all events, whether they are incurred is a matter for the parties and for adjudication by the Family Registrar but my comments may be of some assistance in that respect.
19. I have also noted the application for ancillary relief is down for final hearing before the Family Registrar in December. I am told by Advocate Heath that if this appeal were to be allowed then the earliest dates for hearing in this Court would be mid-May. Well it would be very undesirable to have this final hearing adjourned again and that is another reason for refusing the present appeal.
20. In the circumstances the appeal is dismissed.
21. I am not going to allow costs against the appellant in this case. I looked at the wife's skeleton argument. The first 34 paragraphs are completely irrelevant to this case, the legal test is not identified correctly, paragraphs 35-39, and in the circumstances I think costs have been wastefully incurred. There is going to be no order for costs in this appeal. Each party will bear their own.
Matrimonial Causes (Jersey) Law 1949.
Matrimonial Causes (Jersey) Rules 2005.
Warn-v-Konette  JRC 202.