Moore v Moore [2009] EWCA Civ 433

Case No B4/2008/1651/B[2009] EWCA Civ 433
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(MR JUSTICE BODEY)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday, 3 rd April 2009
Before
LORD JUSTICE WALLMR JUSTICE HOLMAN
Between
MOORERespondent/Claimant
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr A Khan (instructed by Messrs C T Emezie) appeared for Appellant.Mr G Crosthwaite (instructed by Messrs Crowther) appeared for Respondent..
Judgment
[1]This is an application by a husband by notice dated 26 March 2009 in which he seeks variation of an order made by this court in a constitution comprising Thorpe LJ and my Lord, Mr Justice Holman, on 17 March 2009. The order made by the court on that date was that the husband should give security for costs of an application he has made for permission to appeal and any appeal subsequently heard until further order, in the sum of ₤15,000, and the order was that that sum should be made available by cleared funds to the Court Funds Office by no later than 2:00pm on 23 March 2009. Unless security was given as ordered, the application for permission to appeal was to be dismissed and the respondent was ordered to pay the wife’s costs of the application for security. I will, as is common and I hope it does not offend either side, refer to the parties as husband and wife even though there are very substantial divorce proceedings between them.[2]The case has a hugely complex background, and I have before me some eight or nine files. It has fluctuated as a jurisdictional issue between Nigeria and this country. Speaking for myself, I do not think it necessary in order to determine this application to go into any of the background detail. The husband has today, if I may say so, been ably represented by Mr Arfan Khan, who, in the best traditions of the Bar, has acted pro bono. The application, however, is resisted on the wife’s behalf by Mr Crosthwaite. We have before us detailed skeleton arguments and, speaking for myself, I feel, though I was not here on 17 March, I have ample information upon which to decide the application itself.[3]The first proposition, it seems to me, is that I would take a great deal of persuading, speaking for myself, to go behind or seek to go behind the order of this court for security in the sum of ₤15,000 made on 17 March. I propose for the purposes of this judgment to assume that there is jurisdiction so to do, but it seems to me that as this is a matter of discretion ultimately. The fact that this husband has not paid a penny piece towards a very substantial order for maintenance payments due, which is clearly outstanding; the fact that he is, as I understand it, largely resident in Nigeria, and the fact that the only security for any award the wife ultimately achieves is a property in this country which clearly has a value which is controversial, all those factors in my judgment make it appropriate for the figure of ₤15,000 to stand.[4]We have today gone through the sums, and we have also gone through the various applications made to the court to determine the value of the property and what the court was or was not told on 17 March. Speaking for myself, I do not propose to reiterate that detail, but I have made a careful note of it. In my judgment the ₤15,000 should stand. That seems to me to be in accordance with the later thinking of this court, including the judgment of Jacob LJ in the case of Experience Hendrix LLC v Purple Haze Records Ltd & Anr[2005] EWHC 249 (Ch), in which the learned Lord Justice took the view that whereas it was appropriate to consider an extension of time on an application of this nature, it was not appropriate to consider a variation in the figures.[5]For the reasons I have given, albeit in very shorthand form, I would not interfere myself with the figure of ₤15,000. Time to pay seems to me, however, a different issue, because it is pretty clear to me on the material available that this court only ordered the sum of ₤15,000 to be paid by 23 March because the application for permission to appeal with the appeal to follow if permission was granted was due to be heard on 2 April; and therefore if there was to be security, it had to be provided very quickly. That date has, of course, passed; and accepting as I do that there is jurisdiction to entertain the application, and accepting as I do that the application for permission raises an unusual point in relation to maintenance payments due for proceedings which have been discontinued in this country, it seems to me that justice requires the husband’s application for permission to appeal to go ahead, but that he should be given further time to make the relevant payment. His ability to make the relevant payment is, of course, itself an issue. However, I was shown a copy of a letter dated 27 March 2009 from the solicitors instructed on the husband’s behalf to Master Hendy in the Court of Appeal office, in which it says this, and I quote in terms:
“The Appellant’s friends and relatives have agreed to come to his assistance and raise the ₤15,000 ordered as security for costs. It is likely that he will be able to obtain the money and bring it into this jurisdiction within 6 weeks.”
They then go on to make various suggestions, including the adjournment of the application.[6]This is, as I say, a matter of discretion and one has to approach it with a slightly broad brush. However, since a day -- realistically, in my view -- is set aside for the application for permission, it is certain that the case will not be heard this term, and it is unlikely that it will be listed, taking into account the convenience of counsel and the state of the lists, before May of this year at the earliest. Therefore, speaking for myself, I would vary the order of 17 March in one respect and one respect only, and that is I would substitute 2:00pm on 30 April 2009 for 23 March 2009. That effectively gives the husband six weeks from the date of the application made by him to vary the order and it will mean, if the application for permission is listed in May, that the court will have time to vacate that date if he does not pay, because the appeal will stand dismissed if he does not pay by 30 April of this year. That, therefore, is the limited variation which I would propose on the husband’s sums.[7]I agree. Nothing at all has been laid before us, or said, at this hearing to cause me in any way to revise our decision of 17 March to the effect that the wife should have some appropriate security against which she can enforce any costs order that is made at the conclusion of the permission application and appeal if it takes place. Nothing has been laid before us, or said, either, to cause me in any way to revise our view that ₤15,000 is an appropriate pre-estimate of the sort of costs that the wife would be likely to incur.[8]The only question fit for reconsideration is whether or not there is in fact sufficient security in the property that the husband beneficially owns at 71 Fairfield Crescent in Edgware. The hearing and argument before us on 17 March, as I recall, proceeded on the basis that that property was worth of the order of ₤275,000. That proposition gained much support from the terms of the order of Master Bragge of 26 January 2009, who varied an earlier order for sale so as to provide for a sale price “of no less than ₤275,000”.[9]Today, Mr Khan has very strenuously submitted and argued that the true worth and estimated selling price of that property is more in the region of ₤320,000. He bases that submission in particular on three valuation letters from firms of estate agents. There is a letter from Melvin Jacobs dated 30 January 2009 which suggests that the property may be worth in the region of ₤310,000 to ₤315,000. There is a letter from Winkworth dated 6 February 2009 which suggests marketing the property at ₤340,000, and continues:
“We would expect to achieve offers very close to this figure.”
Finally, there is a letter from Bairstow Eves dated 26 February 2009 which suggests an asking price in the region of ₤330,000.[10]It now appears that as long ago as 5 March 2009 the husband had issued a further application in the Chancery Division to vary upwards the minimum sale price in the order Master Bragge of 26 January 2009 from ₤275,000 to not less than ₤320,000. As the dates I have given indicate, all those valuation letters considerably pre-dated the hearing on 17 March 2009. It is unclear to me why counsel who appeared on behalf of the husband at that hearing did not place those letters in the forefront of his argument at that hearing. Further, as Mr Crosthwaite has pointed out today, a statement was made by the husband himself very shortly before that hearing in which he did not himself deploy those valuations. Clearly, it does cause pause for thought when no less than three appraisal letters from a range of estate agents are produced which indicate a value quite substantially higher than the minimum price of ₤275,000 fixed by the order of Master Bragge. However, we live in very uncertain times in relation to property prices. The fact is that the property is not currently being marketed. It is not even actually owned in the name of the husband but only of a company of his, albeit that Bodey J has already held that one can penetrate behind the veil and the reality is that it is the husband’s property.[11]I, for my part, am not satisfied that there is really going to be sufficient margin in that property to provide good and safe security for the wife in the event that she is successful on this proposed appeal. For those reasons I, too, am not persuaded or prepared to alter the essential decision that we made on 17 March that security must be given and that it must be in the sum of ₤15,000. As my Lord, Lord Justice Wall has said, we only fixed by that order a very tight timetable for producing security because of the imminence of the date that had then been fixed for the substantive application. That date has now passed, and I agree with my Lord, Lord Justice Wall that if we now give a further extension to 30 April it will have had the effect altogether of affording to this husband about six weeks in which to raise the money, and that is quite sufficient.[12]So the order of the court will be that in the order made on 17 March paragraphs 1 and 2 will be varied so that in paragraph 1 the date of 30 April 2009 is substituted for 23 March 2009. Otherwise, paragraphs 1 and 2 of the order will stand.[1]The Applicant/Defendant herein shall give security for the Respondent/Claimant’s costs of the application for leave to appeal and any appeal until further order in the sum of £15,000 by paying the sum of £15,000 in cleared funds to the Court Funds Office by no later than 2:00pm on 30th April 2009.[2]Unless security is given as ordered the application for leave to appeal shall be dismissed.[3]The Applicant/Defendant shall pay the Respondent/Claimant’s costs of the application for security for costs, to be the subject of detailed assessment if not agreed.

Order

The order dated 17th March 2009 be varied to read: