Abuchian v Maksoud [2014] EWHC 3104 (Fam)

Case No FD14F00249[2014] EWHC 3104 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of JusticeDate Friday, 19 th September 2014
Before
MR JUSTICE HOLMAN
B E T W E E N:
Between
MELINA O. ABUCHIANApplicantSHEIKH ABDUL MAKSOUDRespondent
Transcribed by BEVERLEY F. NUNNERY & CO.(a trading name of Opus 2 International Limited)Official Court Reporters and Audio TranscribersOne Quality Court, Chancery Lane, London WC2A 1HRTel: 020 7831 5627 Fax: 020 7831 7737info@beverleynunnery.com
MR T. AMOS QC (instructed by Stephenson Harwood) appeared for respondent/husband.MRS. R. CAREW POLE (instructed by Schillings) appeared for applicant/wife.
J U D G M E N T
[1]I have heard the whole of this case today in public, and I now give this judgment in public.[2]There are currently several sets of proceedings before this court arising out of, and relating to, the marriage between these parties. In March 2014, at a time when she was either unable or unwilling to seek a divorce, the wife issued proceedings under the Married Women’s Property Act 1882, and the Family Law Act 1996, in relation to the legal or beneficial ownership of certain properties and her right to occupy a flat in Northern London. The husband has countered by a claim for possession of the flat in question. (He may not be the legal owner but is the effective claimant.)[3]In due course the husband, who lives in Saudi Arabia, purported to divorce, or did divorce, the wife by a Talaq procedure there. The wife was initially uncertain as to the effect and validity of that procedure in Saudi Arabia, but after taking advice she has accepted that she became, and now is, validly divorced from her husband. This, of course, had the immediate effect that it was no longer open to her in any event to seek a divorce here or anywhere else world-wide. So she issued an application under section 13 of Part III of the Matrimonial and Family Proceedings Act 1984 for leave or permission to apply for financial relief after an overseas divorce pursuant to the provisions of that Part. Leave was granted at a without notice hearing by Sir Peter Singer, sitting as a judge of the High Court.[4]By then, hearing dates had been fixed in relation to the wife’s applications under the Married Women’s Property Act 1882 and the Family Law Act 1996, and the husband’s claim for possession. Those dates were a pre-trial review with one hour allowed on Monday, 29th September 2014, and a four day final hearing fixed to start on Tuesday, 11th November 2014. As he was, and is, fully entitled to do, the husband has issued an application to set aside the grant of leave or permission by Sir Peter Singer. That application now requires to be heard at an on notice hearing, which is currently listed to be heard on 26 November 2014, when a judge will decide whether or not the grant of leave or permission should be set aside. If it is set aside then, subject to any further appeal, the wife’s claim under Part III of the 1984 Act will of course reach a dead end. If the grant of leave or permission is not set aside, then the court requires to consider sooner or later not only the wife’s claims under the Married Women’s Property Act 1882 and the Family Law Act 1996, and the husband’s cross-claim for possession of the flat, but also exercise of the discretionary powers of the court under Part III of the 1984 Act.[5]Two applications have been issued and listed returnable before me here today. The first in time is an application issued by the husband on 27th August 2014 for the whole of the wife’s applications under the Married Women’s Property Act 1882 and the Family Law Act 1996 to be struck out. In that application notice the husband’s solicitors estimated a time of 30 minutes for this hearing. The second application was issued by the wife on 5th September 2014. By her application she seeks that the hearing of the husband’s application to set aside the grant of permission or leave should be brought forward from26th November 2014 (when it is currently listed to be heard) to 29th September 2014 so that it can be heard during the course of the same hearing as has already been fixed as a pre-trial review in relation to the wife’s claims under the Married Women’s Property Act 1882 and the Family Law Act 1996, and the husband’s cross-claim for possession. In their application notice the wife’s solicitors also estimated a time of 30 minutes for the hearing of their application. I mention that although, therefore, the solicitors estimateda combined time for these two applications of one hour, they have now already occupied several hours of hearing today.[6]I turn, first, to the husband’s application to strike out the wife’s applications under the Married Women’s Property Act 1882 and the Family Law Act 1996. The formal application notice asks that they be struck out:
“Pursuant to rule 4.4(1)(c) of the Family Procedure Rules on the ground that the applicant has failed to comply with, and is in breach of, the order of Sir Paul Coleridge dated 13th May 2014.”
[7]One turns, therefore, to the material part of the order of Sir Paul Coleridge of 13th May2014, which is paragraph 18. The whole order may, of course, be considered by anybody with a proper interest in this matter, but I can mention in summary form the material parts of it. Paragraph 18(b) required the wife to file and serve points of claim and other material in relation to her applications under the Married Women’s Property Act 1882 and the Family Law Act 1996, by 9th June 2014. The order then made provision for the husband to serve points of defence, which he duly did. The order then provided that the wife shall: “not more than 14 days after service of the [husband’s] defence” file and serve a reply thereto. The first limb of the application to strike out is based on the fact, as is admitted, that the wife was two days late in filing her points of claim, and one-and-a-half days late in filing her reply.[8]The order of Sir Paul Coleridge then went on to provide as follows:
“(e) Disclosure shall be by way of questionnaires directed to the issue of the beneficial ownership of [certain property].”
Pausing there, it is to be noted that that part of the order of Sir Paul, which indicated, or directed, that disclosure shall be by way of questionnaires, did not itself contain any kind of time limits.[9]One turns, next, to the rule upon which this application is based, namely, rule 4.4(1)(c) of the Family Procedural Rules 2010. That rule provides that the court may, as a matter of discretion, strike out a case if it appears to the court:
“(c) that there has been a failure to comply with a rule, practice direction or court order...”
The case and argument of the husband was very fully set out in a skeleton argument prepared for today by his leading counsel, Mr Tim Amos QC, dated 18th September 2014, and is, as one would expect, robustly argued. In fact it is not possible to say in relation to the supply of answers to the questionnaire that there has been any failure to comply with a rule, practice direction or court order since, as I have already explained, the court order did not itself fix any timetable within which the questionnaire should be answered. The highest that it can be put in this case is that the wife supplied her answers later than the date that she had agreed to do so in inter-solicitor correspondence. There has, of course, been a failure to comply with a court order in relation to filing and service of the points of claim and of the reply. As I have indicated, the first failure was one of two days, and the second one of one-and-a-half days. These parties were married (in fact twice, for they divorced and re-married) for around 33 years. The mother bore two children, although sadly one of them later died. She is currently resident in a very valuable property in North London. It is said (although I do not have the slightest idea as to the truth of the matter) that her husband is a wealthy man. He is now aged 89; she is aged 63. Subject to the success or otherwise of the husband’s application to set aside the grant of leave or permission to apply for financial remedies under Part III of the 1984 Act, her other claims are effectively her only remedies for seeking to establish her financial position for many years to come. It would, frankly, be utterly disproportionate and unjust to strike those claims out on the basis of aggregate slippage of three-and-a-half days.[10]For those reasons, I indicated to Mr Amos at a very early stage during this hearing that it seemed to me that the application to strike out was not likely to succeed. In fairness to Mr Amos I should make clear that he rapidly took the point on that indication and did not strenuously press his claim, although, so far as I am aware, at no stage today has it been formally withdrawn. For those reasons, therefore, I do now formally refuse, or dismiss, the application notice dated 27th August 2014 seeking to strike out the wife’s claims under the Married Women’s Property Act 1882 and the Family Law Act 1996.[11]I turn now to the later application that was issued by the wife. This also was strenuously resisted by the husband through Mr Amos’ skeleton argument to which I have referred. It seemed to me, frankly, obvious when I looked at these papers this morning that there was everything to commend the course proposed by the wife in her application notice. As I understood the written argument of Mr Amos, it was that chronologically, and also logically, the wife’s claims under the Married Women’s Property Act 1882 should be considered first, the argument being that it is necessary first to determine what assets do or do not belong to one or the other party. For many, many years, however, the approach in the matrimonial courts has been that it is wasteful of time and resources to consider separately and discretely matters of ownership when there is before the court an all embracing claim for the exercise of discretionary powers. I absolutely understand Mr Amos’ point that unless and until the court has heard and adjudicated upon the husband’s application to set aside the grant of leave or permission to apply under the 1984 Act, there is no way of knowing whether the wife’s claim for discretionary relief will, in the end, subsist and be effective. To my mind that is all the more reason why it is essential to have as early a resolution as possible of the question whether or not the grant by Sir Peter Singer of leave or permission to apply should be set aside. Further, it is an obvious application of the overriding objective in the rules that all these issues should be corralled together and dealt with as early as possible with as few hearings as possible.[12]I stress again the ages of these parties and the duration of their marriage. I sincerely wish a long life and every good fortune to the husband. I have no evidence whatsoever as to his health or well being, but it is a fact that he is aged 89, and it is only human nature that a person of 89 may be vulnerable to death or ill health. It is, therefore, of a special importance in this case that all these issues between these parties should be heard as soon as practicably possible. This is not the sort of case which can wallow or luxuriate in a delay of a year or more whilst procedures wend their weary way. Further, the husband himself has made very clear in his documents that he badly wishes to be able to sell the flat in North London in which the wife is currently residing. As I understand it, he feels, amongst other matters, that it may diminish in value, and in any event he is anxious to discharge a large mortgage upon it. So it is objectively very much in the interests of both these parties that all issues between them are brought to a head and a speedy resolution.[13]I made all these suggestions to the advocates at a very early stage at the outset of this hearing. I have made enquiries of the Clerk of the Rules during the course of the day. I have established that the hearing that was fixed on Monday, 29th September as a pre-trial review for one hour can in fact be enlarged to an entire day with nothing else at all listed before the identified judge. Mr Amos strongly submitted that he did not wish his application fora set aside to be squeezed for want of time, nor proper consideration of directions in the various sets of proceedings to be squeezed for want of time. But even Mr Amos accepted that if one full day is allowed and made available, that should be ample both for full, fair and just consideration of the application to set aside the grant of leave or permission, and also consideration of all necessary directions in all proceedings that then remain after the court has considered whether or not to set aside the grant of leave or permission. It seems to me, therefore, that there is absolutely no downside to either party, and every possible advantage to both parties (and also to other litigants and court time generally) if the issue whether or not the grant of leave or permission should be set aside is advanced from the hearing currently fixed for26th November 2014 to 29th September 2014. That is what the wife sought by her application issued on 5th September 2014, and it follows that that application is of course successful.[14]But my primary purpose, in advancing the issue of setting aside the grant of permission or leave, is to open the way to a full, fair, final hearing of all issues between these parties in November 2014. I have also been able to arrange with the Clerk of the Rules today that the four day hearing that had been fixed to start on Tuesday, 11th November 2014 can in fact be enlarged or expanded to a seven day hearing beginning on Monday, 10th November 2014 and ending on Tuesday, 18th November 2014. No party has suggested that seven days will not be ample time for the court fully and fairly to consider all issues between these parties including discretionary relief under Part III of the 1984 Act in the event that the husband’s application to set aside the grant of leave or permission is not successful.[15]I have made crystal clear to Mrs. Carew Pole, who appears on behalf of the wife today, that I fix that very rapid timetable for the overall advantage of the wife as well, of course, as of the husband. It is enormously to her advantage, bearing in mind in particular the age of her husband, that all these issues are very rapidly resolved. The alternative, if the existing timetable had remained, would be some final hearing date of her application under Part III, if it survives, many months hence during 2015. It would also necessarily involve two separate lengthy hearings, both in November 2014 and again sometime in 2015. So there is the enormous advantage to her of speed and of course reduction in costs. There is an advantage to the public in that one seven day hearing will be required rather than two lengthy hearings.[16]The possible price that the wife must pay, however, is that she will not be able in this case to press for weeks and weeks and months and months for forms of disclosure and discovery in the way that sometimes happens in these high value cases. I have made quite clear to Mrs Carew Pole today, in the presence and hearing of her client, that now that this accelerated timetable has been fixed it must be adhered to. If that involves compromise by her and her advisors on the degree of enquiry, they must accept that compromise as the price of the greater advantage of an accelerated global hearing.[17]So for those reasons I have made the two essential decisions which arise on today’s applications; first, that there is no strike out, and, second, that the whole timetable should be brought forward with the set aside application being finally considered on Monday, 29th September.[18]A range of other matters have also been discussed and considered today. These include some brief consideration of expert valuation evidence in relation to the flat, and consideration of some further orders in relation to discovery and disclosure. I believe that the orders that have now finally been drafted in that regard are not controversial, they are certainly self-explanatory, and at this hour of this day, when I still have another case waiting, I will say no more about them.