Minwalla v Minwalla & Ors [2004] EWCA Civ 1589

Case No B1/2004/1393[2004] EWCA Civ 1589
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
PRINCIPAL REGISTRY OF THE FAMILY DIVISION
(MR JUSTICE SINGER)
Venue Royal Courts of JusticeDate Wednesday, 3 November 2004
The Strand
London, WC2A 2LL
B E F O R E:
LORD JUSTICE THORPE
LORD JUSTICE WALL
MRS JUSTICE BLACK
Between
MEHER ROHINTON MINWALLARespondent-v-
Between
DARAYUS CYRUS MINWALLAAppellantDM INVESTMENTS SAAppellantMIDFIELD MANAGEMENT LIMITEDAppellantCI TRUSTEES LIMITED AS TRUSTEES OF THE FOUNTAIN TRUSTAppellant
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
The First Appellant appeared in person for in personMR MARTIN POINTER QC AND MR GEOFFREY KINGSCOTE (instructed by Mishcon de Reya, London WC1R 4QD) appeared for Respondent
J U D G M E N T

LORD JUSTICE THORPE:

[1]On 15 June 2004 Singer J made an assessment of Mr Minwalla's obligation to pay maintenance pending suit to his wife. He assessed first, what monthly sum he should pay to the petitioner, and second, what monthly sum he should pay to her solicitors. The rough total of the two obligations was something in the region of £8,000 a month. The respondent husband has largely ignored his obligations. He has paid only the sum of £3,250 against his liabilities, and accordingly the current arrears are approaching £40,000. Singer J reserved the question of the wife's costs.[2]An application for permission to appeal was lodged within time and referred to me on 21 July. On the following day I made an order refusing an application for a stay and adjourning the permission application to an oral hearing on notice with appeal to follow if permission granted. The only reason that I took that course was that the permission application was supported by an erudite skeleton settled by Mr Justin Warshaw, dated 12 July, in which he developed the argument that the trial judge had no jurisdiction to include within an order for maintenance pending suit an obligation to pay monthly sums, effectively to the petitioner's solicitors.[3]The jurisdiction so to do has been recognised in reported decisions. First, the decision of Holman J in A v A and then the decision of Charles J in G v G [2003] 2 FLR 71. Mr Warshaw made the point that these first instance decisions had never been directly supported by the Court of Appeal, and indeed in G v G permission to appeal had been granted by this court, although the appeal had never proceeded to judgment as a consequence of an omnibus settlement between the parties.[4]When I made the order for an oral hearing I directed that it should be listed before me in September if possible. Clearly, the listing officer was not able to comply with that suggestion and the case was fixed for 3 November.[5]It is unfortunate that, when I considered the case on paper, I was not aware of the fact that on 15 June Singer J had directed that the final hearing of the wife's ancillary relief claims should be listed before him on 22 November with a five to eight-day time estimate. Whilst recognising that the point elaborated by Mr Warshaw is a point that merits consideration by this court, a point of pure law, I doubt that I would have seen this case as a suitable vehicle had I appreciated the brevity of the interval between the pending suit order and the final trial, and had I also appreciated that the husband had little intention of complying with Singer J's order in the interim.[6]The Court of Appeal office sent a standard communication to the respondent on 29 September, acknowledging receipt of notice of change to acting in person. The letter continued:
"... your hearing will now be fixed for the 3rd November 2004. If you are unable to attend you must inform the listing office as soon as possible, so that the hearing can be adjourned. You must also provide this office with a United Kingdom contact address where correspondence can be sent."
That letter was dispatched to the respondent at an address in Karachi. The respondent's answer of 7 October was to the writer, Miss Tailor, of Case Management Section B. He said:
"Dear Miss Tailor Thank you for your letter dated ... 29/9/04. As you are aware I am in considerable financial difficulty and am seeking legal firms to represent me, who can apply for financial aid on my behalf. I would therefore seek an adjournment for the hearing fixed for 3rd November 2004 to enable me to find a suitable law firm to represent me and I would seek an adjournment till early in the New Year by which time I hope I can be suitably represented. At this time I have no mailing address or contact address in the UK where correspondence can be sent, but may be contacted on the fax number above or by mail to the address you have sent your letter."
[7]In accordance with the practice of the Court of Appeal office that application for the adjournment of a fixture was referred to me with a request that I make a paper order. Having considered the content of the letter of 7 October, I directed that the adjournment application be refused and that the fixture stand. It was then the responsibility of Case Management Section B to communicate that refusal to the respondent at the only available address namely the Karachi address. However, the section had the advantage of a fax number which appeared below the printed address on the respondent's printed writing paper. I was told by Miss Tailor that considerable efforts were made to fax the refusal through, that initially there were difficulties in obtaining any confirmation of fax received but eventually a confirmation was received, and that accordingly she was satisfied that the respondent knew that he had to prepare for the hearing on 3 November.[8]Unfortunately, the order that I made and the copy of the letter communicating the refusal to the respondent and any confirmation of a successful fax transmission have escaped a recent search of the office and must be regarded as lost or mislaid. Therefore it is difficult to assess the bona fides of a letter of 2 November sent by fax to Miss Tailor yesterday from the respondent, which reads:
"I sent you by fax and by mail the attached letter dated 7th October 2004, requesting for an adjournment of the case, which was originally fixed for 3rd November 2004. I have now been informed today by Mishcon De Reya that the case is to proceed tomorrow. This has come as a complete shock to me, as neither I have appointed legal consul[sic] nor am I in the country and if the case proceeds in my absence, I will be greatly prejudiced and denied my human rights to be represented. I would request that this matter be placed before the Judge to prove my bonafides that I did fax you on 7th October 2004, asking for an adjournment of the case."
[9]What is established beyond doubt? First, that a letter of 29 September was sent to the respondent, which perhaps carried the inference that if he was unable to attend on 3 November all he had to do was to inform the listing office quickly so that the hearing could be adjourned. Second, it is established beyond doubt that he wrote on 7 October requesting adjournment and that that letter was duly received by the office. The missing piece of the jigsaw is the communication of refusal of the adjournment application and any proof of receipt. So as a matter of ordinary fairness, it seems to me that I must assume that, for whatever reason, the respondent never received the notification of the refusal of the adjournment application and therefore was indeed surprised and disappointed to learn on 2 November that the case was at risk of proceeding today.[10]That history might suggest that the inevitable course was to adjourn this permission application. However, the wider reality is that this applicant for ancillary relief has already incurred costs of £200,000. It is anticipated that her total bill with her solicitors will rise to £400,000 by the conclusion of the trial in the Family Division. An independent application for adjournment of the fixture on 22 November has been made by the respondent to the Clerk of the Rules and that application is fixed for hearing before Singer J on 8 November.[11]The only asset within the jurisdiction that is available to enforce whatever orders may emerge at the final hearing is a flat in Portland Place, which is thought to have a value of £1.2 million but which seems to be charged to two mortgagees collectively for almost £0.5 million. So the frightening prospect for the petitioner is that orders in very substantial sums made by a Family Division judge will prove exceedingly difficult to enforce worldwide.[12]Mr Minwalla is one of these litigants who has asserted that the balance of his assets and liabilities is a negative figure of approximately £400,000. However, recent investigations, which have been made possible by the court's powers to order disclosure and also appointments for examination of relevant fund-holders, reveal that the respondent has relatively recently self-assessed his worth at something in the order of US$20 million. So there must be a real possibility that this is one of those respondents who is ruthlessly pursuing a strategy of falsely presenting himself as insolvent, when in truth he is very substantially rich, and whose further strategy is to provoke the wife into running a costs bill with her own litigation team that will effectively exhaust whatever funds are available within the jurisdiction to secure orders.[13]What is of greatest significance is the very brief life that the judge gave to this maintenance pending suit order on 15 June. That brevity of life in itself raises considerable doubts as to whether this is a suitable vehicle for the determination of the point of pure law. Those doubts are reinforced by the fact that (a) the judge did not order him to pay the costs of the maintenance pending suit inquiry, and (b), that no substantial sums have yet been paid under the order and no enforcement proceedings have been taken. So on 22 November the judge can not only make a realistic assessment of Mr Minwalla's prospective liability, but he can also carry out a retrospective inquiry, should it emerge that his provisional conclusions on 15 June were in any way unfounded. The likelihood of that in this particular case seems extremely small, given the product of the further investigation into the husband's means that has taken place in the interim. So for this court to adjourn the application would only risk supporting the husband's possible strategy of destroying the wife by provoking her into running an all-consuming bill with her own lawyers. If we adjourn the case, there will be inevitable amplification of her costs. That is something which weighs heavily in any proportionate assessment of this application for permission.[14]Do we do any injustice to the husband if we refuse the permission application? Superficially he will assert, and perhaps genuinely feel, a sense of injustice, in that the letter of 29 September suggested that he only had to give notice in order to postpone the hearing of the appeal and that the reality that November 3 stood was perhaps not communicated to him until 2 November. But that superficial view has to be weighed against the fact that there is actually no prejudice to him in the order below, given the eminence of the final hearing. In effect, the only prejudice to him in refusing this permission application is the inevitable consequence that he will pay the costs of the application. That is something that he had the opportunity to consider before instructing his counsel to settle the skeleton of 12 July and thereafter to pursue the application in this court. It must have been obvious to his legal team, and I suspect also to him, that he was(a) incurring costs risks in initiating the process, and(b) that the application to the Court of Appeal was inappropriate, given the time-scale fixed by the trial judge. Thus, he has brought upon himself the consequence. I would, accordingly, for myself, on grounds of overall proportionality, refuse to allow this permission application to go a yard further. I would dismiss it and say that the respondent should pay the costs to be assessed by a costs judge.[15]A schedule of costs has been laid before us. It seems to me that there must be considerable doubt as to whether the disbursements, in particular, are allowable on an ordinary basis of taxation.

LORD JUSTICE WALL: I entirely agree and do not wish to add anything.

[17]MRS JUSTICE BLACK: I agree, and do not wish to add anything either. (Application dismissed; Applicant do pay the defendant's costs, such costs to be the subject of detailed assessment).