Bidaki, R (On the Application of) v Najafabadi [2013] EWCA Civ 1760

[2013] EWCA Civ 1760Case No B6/2012/3430
IN THE COURT OF APPEAL (CIVIL DIVISION)
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 17 December 2013
Between
THE QUEEN ON THE APPLICATION OF BIDAKIAppellant
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE PITCHFORD
LORD JUSTICE DAVIS
SIR STANLEY BURNTON
v
Between
NAJAFABADIRespondentComputer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)Mr I Mitchell QC (instructed by Balfour & Manson) appeared for AppellantMr F Feehan QC (instructed by Foster & Partners) appeared for RespondentJ U D G M E N T

LORD JUSTICE PITCHFORD:

Lord Justice Davis will read the first judgment.

LORD JUSTICE DAVIS:

[2]The divorce petition in this case was initially presented by the wife as long ago as 1 July 2011. There were thereafter numerous applications and from time to time the proceedings in the County Court were also adjourned. In the event, after a trial in part lasting over 3, 4 and 5 September 2012 (and then being adjourned by reason of the husband's health), and then concluding on 30 November 2012, a decree nisi was pronounced on that date by Ms Recorder Jacklin QC.[3]The respondent husband now seeks permission to appeal in respect of that order. Fundamentally, the application as currently constituted is based on two principal grounds, although there are others. The first is that, so it is said, the Recorder was wrong, on 30 November 2012, to decline to order a stay of the divorce proceedings under section 5(6) and paragraph 9 of Schedule 1 of the Domicile and Matrimonial Proceedings Act 1973 in favour of divorce proceedings then current in Iran. Secondly, it is said that the Recorder was wrong to refuse a further adjournment of the hearing of the matter on 30 November 2012.[4]At most stages in the litigation, the husband seems to have acted in person, latterly, at least, with the assistance of his partner, Katarina. It is said that Katarina has a legal qualification and certainly the indications are that she is in legal terms articulate and well able to research matters and in some depth.[5]It has to be said that in support of this current application for permission to appeal, vast quantities of materials have been sought to be put in by the husband, materials which it is to be apprehended have been drafted by his partner. Thus there have been lengthy further statements made and further supplemental skeleton arguments sought to be adduced.[6]To some extent those arguments seek to reprise virtually the whole history of the divorce proceedings. It is somewhat unfortunate that that has been done because when counsel had been instructed on behalf of the husband for the purposes of this proposed application (initially Miss Murphy, and then Mr Mitchell QC,) each of them had put in clear and concise skeleton arguments identifying the points sought to be raised. It was really not of any great assistance, with all respect to the husband, for him then himself to seek to supplement those arguments by such extensive further documentation. It is a common misconception that the length of documentation is to be equated with its substance.[7]So far as the original petition is concerned, that raised a number of grounds in support of the averment that the marriage had irretrievably broken down. On the encouragement of the Recorder, the trial was eventually confined to the first ground of the petition. That reads as follows:
"In or around 2007, the respondent left the petitioner and set up home with another woman. This woman had adopted the respondent's surname and he has represented to various members of the family that she is his 'Second wife.' Although the law of the party's country of origin, Iran, and of the party's culture permits the husband to take a second wife, he may do so only with the first wife's written permission, which permission has not been given."
[8]Although virtually everything in this case thus far seems to have been in dispute there at least has never been any dispute that the wife and the husband were married. The wife said that they were married in Iran on 28 May 1978, and produced a certificate to that effect. At various stages, the husband has sought to say that they had in fact entered a prior form of "holy" marriage, entered into in Iran in 1977.[9]However, as a consequence of various orders made by judges in the County Court, proof of marriage on 28 May 1978 as averred by the wife was accepted. That indeed was confirmed in the course of the trial proceedings by the Recorder. This nevertheless seems to be a continuing course of complaint to the husband; but there can be no challenge on at that point now.[10]After numerous applications to the County Court which it is not necessary to rehearse, the matter was listed for substantive hearing in the County Court on 16 to 18 April 2012. In the event that hearing was adjourned by consent, primarily if not solely owing to the ill health of the husband who was facing an operation. Thereafter, the husband unsuccessfully sought to have the matter transferred to the High Court and also various other applications on his behalf were dealt with.[11]The matter eventually came on for trial before the Recorder on 3 September 2012. The husband was representing himself initially but on the second day he was permitted to appear by his partner, Katarina, acting as McKenzie friend. On the third day of the trial there was an adjournment because the husband was taken to hospital.[12]The Recorder thereby adjourned the balance of the hearing for a date to be fixed: which in the event was fixed for 30 November 2012. In the meantime, the husband had made various other applications including an application that the divorce proceedings and the financial relief proceedings proceed together. Those were rejected and when the husband sought to appeal to the Court of Appeal, his application was refused by McFarlane LJ who certified it as totally without merit.[13]On the 30 November the husband did not appear in the morning. His partner Katarina, again, continued to appear on his behalf as McKenzie friend. In the afternoon it was said that the husband had had to be rushed off to hospital urgently. The Recorder had already declined to adjourn proceedings in the morning. She declined to adjourn proceedings in the afternoon and she proceeded in due course to make the order which I have indicated, giving full reasons for doing so subsequently.[14]The application for the stay of proceedings under the 1973 Act was only made on 30 November 2012. What was said, in a nutshell, was that the wife had instituted divorce proceedings in Iran during the course of June 2012. It was said that that had not been known to the husband at the time, and he only became aware of them on 16 October 2012. It was said that in the circumstances the Recorder should, in her discretion, have ordered a stay of proceedings under the 1973 Act.[15]In my view that was, and is, an untenable argument and the Recorder was quite right to reject it.[16]It is the case that both husband and wife were born in Iran, were married in Iran, and are Iranian nationals. But they have been living in the United Kingdom from 1988 as husband and wife (at all events until they finally separated in around 2008). The husband accepted that he was habitually resident in the UK. They owned a number of properties in the Bristol area and had lived in a property in Bristol as the matrimonial home. (It is, however, right to say that it is said that the wife at least also has substantial property also in Iran.) There are three children, all now adult. All are now (and have been) resident in the United Kingdom. It is said that the wife herself became a British citizen in 2009.[17]The husband had clearly perceived at the outset that he had an interest in seeking to stay the divorce proceedings because in his acknowledgment of service to the petition dated 7 July 2011, he had said this:
"The defendant has lodged copy documents of these proceedings in the Family Court of Tehran and is now applying for a divorce in the jurisdiction of Iran. The defendant wishes to apply to stay all actions in UK until outcome of the Iranian court action."
But the husband never at any time in the English proceedings before the 30 November 2012 sought a stay of the English divorce proceedings, or disputed the English jurisdiction. Indeed, he never has himself (contrary to what apparently had been alluded to in his acknowledgment of service) sought to institute the divorce proceedings in Iran. Indeed, in more recent statements it seems to be his position that he was advised by Iranian lawyers that it would not be in his own interests for him to institute his own divorce proceedings in Iran, perhaps in particular because that might prejudice his position as to whether or not he would be vulnerable to restore the 'mare', or dowry, said to be due on one version of events to his wife.[18]Thus, from his point of view, it can in one sense be said to be purely adventitious for him that his wife had thereafter instituted her own divorce proceedings in Iran in June 2012. But equally, it does seem to have been contemplated that at some stage Iranian divorce proceedings would be needed in circumstances where, so it is said, Iran does not recognise English divorce orders.[19]Exercising the power confirmed under the provisions of the 1973 Act in paragraph 9 of schedule 1 is, as well known, a matter of discretion. The principles are illustrated in such familiar cases as the Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 and De Dampierre v De Dampierre [1988] AC 92 which do not need further rehearsal here.[20]Mr Mitchell QC, appearing on behalf of the husband today, submits that the Recorder failed to give full and proper reasons for her decision and complains that her approach was not structured. At the very least, he submits, the matter should be remitted to the County Court for further reasoning: although he submits that the grounds are arguable in, as it were, a self-contained sense. But in my view it is wholly unsurprising that the Recorder gave the application short shrift. The summary background which I have already recorded plainly indicates that England was the proper forum for these divorce proceedings, and no factor was identified whereby nevertheless they should be stayed in favour of Iran.[21]It is also said that the Recorder fell into error by using the word "convenient" where the true test, as set out in Spiliada, was by reference to what overall was appropriate. But one can see exactly what the Recorder meant and in any event she can hardly be criticised for using a word which appears in the Schedule to the 1973 Act itself.[22]It is also complained by Mr Mitchell that the Recorder had been wrong to indicate that the husband had been way out of time in making this application. He says that that was an infecting error vitiating the entire exercise of her discretion. He emphasises that the husband (on his own case) only became aware of the wife's Iranian divorce proceedings in October 2012, a few weeks before the hearing in November. But as I have indicated, the husband had clearly at the outset focused on the question of jurisdiction. He had elected not to pursue any steps in that regard at the time. The Recorder's comments have to be read in that particular context. Indeed, the simple fact is that by mid 2012 the divorce proceedings in the Bristol County Court were by then well advanced. Read in that context, the Recorder's remarks as to delay make sense.[23]Overall, therefore, in my view the conclusion of the Recorder was manifestly one that she was entitled to reach. Indeed, any contrary conclusion would, to my way of thinking, have been most surprising. At all events, I consider that this proposed ground is not realistically arguable.[24]The second principal ground of complaint is as to the Recorder's refusal to grant an adjournment of the hearing on 30 November 2012. The Recorder gave a very full judgment in this regard. She had all the relevant authorities and principles in mind, and a number of those authorities had been referred to her. It was of course ultimately a matter for the Recorder's discretion as to whether or not the proceedings should be adjourned.[25]It is quite plain, indeed the Recorder said so, that by this stage (she being well familiar with the case) she considered that the husband was in part using his illness with a view to stalling and delaying the further proceedings. Moreover, as the Recorder pointed out, a letter from the husband's general practitioner of 28 November 2012 had been somewhat hesitant in its expression, referring only to the "possibility" of the husband not being fit to attend the hearing.[26]It has to be noted that notwithstanding the events of September, no hospital evidence had been put in. Clearly the judge was, in all the circumstances, justified in refusing the application to adjourn made on the morning of 30 November.[27]It appears that thereafter during the course of proceedings in the morning, the position was indicated whereby the husband should be prepared to give evidence in the afternoon. What is said by his partner, who was present as his McKenzie friend, is that she then contacted him to tell him of that and thereafter he was immediately taken to hospital. Thus it was at all events that he did not attend in the afternoon.[28]Mr Mitchell says that in such an situation the Recorder's only proper option was to adjourn the proceedings at that stage. I do not agree. This was still a matter for the Recorder's discretion. She had to bear in mind the whole context of this particular case. She had noted that there had by then been an extensive cross-examination of the wife. It was also the position that the husband had at least been able to attend during the morning. The circumstances in which, so it is said, he went to the hospital in the afternoon are not satisfactorily explained. Even now, no hospital record of his attending on that afternoon has been provided to the court. What

the judge had to say in the course of her lengthy judgment was this:

"I am not satisfied that the medical evidence is such that I could find that the respondent is truly so unwell that he could not have attended court for the time necessary to give evidence on the one remaining ground of the petition."
In my view, overall, there is no arguable basis for challenging the Recorder's exercise of discretion in refusing on each occasion to adjourn matters on 30 November.[29]Then it is said that the Recorder was, at least arguably, wrong to take into account the submission on behalf of the wife that in any case the husband had no realistic defence to the petition. In my view, however, the Recorder, given the circumstances, was entitled to form a preliminary view on that at that stage and to take it into account in exercising her discretion. She had borne in mind that the wife had been cross-examined over many hours by this stage. Indeed, the ultimate conclusion of the judge by reference to ground 1 is, given the evidence which she recounted, wholly unsurprising.[30]Further complaint is made by Mr Mitchell, as a proposed ground of appeal that the proceedings had been unfair. The references made, as is all too familiar in this context, are to Article 6 of the European Convention on Human Rights; and it is said that here there was an unequal contest in terms of equality of arms.[31]It is said that whilst the husband's partner, Katarina, had some legal training she was in reality out of her depth, as can be seen from the transcript, so it is said, and was not in a position to deal with the legally represented wife. It has to be said in my reading of the passages of the transcripts, howerver, that the partner seems very well equipped to argue the case on behalf of the husband, and indeed did so at great length. But in any event, as the Recorder pointed out, the position had to be dealt with fairly having regard to the interests of all the parties: not simply the interests of the husband. The Recorder was also entitled to bear in mind the lengthy delays that had already occurred. Furthermore, it was open to the husband to retain lawyers (as he has done for this present application) even although one of course accepts the financial constraints that anyone in his position must be facing.[32]Overall, in my view, there is no arguable basis on appeal by reference to Article 6 and the lack of fairness of the hearing.[33]Considering all these various points that have been put forward, I do not think for my part that any arguable appeal is shown on the papers.[34]I would only add that this morning, Mr Mitchell sought to add a further ground of a proposed appeal. This is by reference to what is said to have been a divorce decree granted by the Tehran Province Court of Appeal Branch 2 on 22 September 2013.[35]The first time that this court was made aware of the proposal that this point be argued was yesterday. All that has been exhibited is a copy of the order said to have been made with a translation. Amongst other things, the translated version so produced refers to the Court of Appeal in Tehran confirming a lower court order and that it "issues the divorce order": those words being in bold type. Mr Feehan QC for the wife says that that wording does not correspond with or appear in their own preliminary translation of the alleged court order. Furthermore, it was said by Mr Feehan, although Mr Mitchell disputes this, that the husband in any event is seeking to appeal further in Iran.[36]In such circumstances, Mr Mitchell understandably withdrew his application to amend to argue this ground. But it has to be said it could not have prevailed in any event. Firstly, it has been raised far too late. On any view, the husband would have known of this order for several weeks now, given that it was, on the face of it, his own appeal that that was being dealt with. Secondly, the Recorder was pronouncing a decree nisi on 30 November 2012. It may be, I know not, that this further order of the Iranian court -- to the extent that it is proved -- may or may not be capable of being invoked in the Bristol County Court, either with a view to rescission proceedings or with a view to avoiding the decree being made absolute. That, if raised, would be a matter for the County Court. But it could have had no possible bearing on this proposed appeal from the order of the Recorder.[37]Accordingly, I would refuse this application in all respects.

LORD JUSTICE PITCHFORD: I agree.

SIR STANLEY BURNTON: I also agree.