Michael James Augousti v Amrit Kaur Matharu [2023] EWHC 1900 (Fam)

“39. An appeal against a finding of primary fact can only succeed where the finding had no evidence to support it; or was based on a misunderstanding of the evidence; or was one no reasonable judge could have reached: see Lord Neuberger PSC at [53]. 40. The primary facts in question can be either concrete or abstract (i.e. the state of mind of a party or other relevant actor). However, proof of a state of mind is not capable of objective verification in the same way as a concrete fact. It involves subjective judgment by the fact-finder. The process is more akin to the evaluation of primary facts, to which I next turn. 41. An appeal against an evaluation of primary facts as found or undisputed can succeed only for the same reasons although applied perhaps with “somewhat less force”: Lord Neuberger at [57] - [58], citing Lord Hoffmann in Biogen Inc v Medeva plc [1997] RPC 1, at [54]. A “degree of reticence” on whether to interfere with the evaluation is warranted: Lord Kerr JSC at [110]. 42. An appeal against an exercise of discretion will succeed if the decision-maker has failed to take into account relevant matters; or had regard to irrelevant factors; or reached a decision that is plainly irrational. Otherwise, the review by an appellate court is “at its most benign”

“…there must be a realistic, as opposed to fanciful, prospect of success. There is no requirement that success should be probable, or more likely than not.”

“Ultimately, I decided to admit both party’s additional witness statements lodged in February 2023 as a matter of proportionality. However, admission was on the basis that there would be no cross-examination and I would attribute such weight to those statements as I deemed appropriate. The parties agreed to this approach. As far as the April 2023 witness statements are concerned, I have read them. The wife’s, of course, is only relevant if I allow the husband’s. I refuse the husband permission to rely on his April 2023 witness statement. In my judgment, it is of no assistance. [REDACTED] The husband’s fresh evidence is entirely speculative and based on wishful thinking. I have not found the husband’s submissions on insolvency law terribly helpful and I address them in the course of the discussion and decision below.”

“Therefore I ask the Court to stay the handing down of Judgment for two months, until 9 June 2023. [REDACTED] That is in both parties’ best interests and will provide further clarity for the court – not least as any agreement that can be reached will provide certainty and reduce the family’s potential liabilities.”

“First, it must be shown that the evidence could not have been obtained without reasonable diligence for use at the trial. Secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive. Thirdly, the evidence must be such as is presumably to be believed or, in other words, it must be apparently credible, though it need not be incontrovertible.”

“4. The administration process has progressed since the Final Hearing in December 2022 – more information has come to light and I can now confirm that the Potential Liability will be nothing like [REDACTED]. As explained to Ami’s solicitors, I am able to cap the Potential Liability at [REDACTED], but remain hopeful that it was be significantly less than even that figure. 5. As I set out below [REDACTED] there is even a prospect of the Potential Liability never materialising at all. In that case, the contingent variable lump sum I seek would never be demanded from Ami. 6. My case is that the court should consider this Potential Liability to be between [REDACTED], while recognising the commercial reality that the Potential Liability might not crystallise for many years if at all.”

“The husband’s primary need is for housing. However, in my judgment, any significant award made to him is likely to go to his creditors. In his oral evidence, the husband put his potential liability at [REDACTED] There is nothing to support this assertion. Further, he requires the administrator’s cooperation and that is unlikely to be forthcoming, absent funding.”

“The Judge was wrong to place little, if any, weight on H’s evidence of what he had been told by the administrators about the likely liability, which was the best evidence available to the court, instead preferring her own speculative and general understanding (as also set out in W’s statement, which was read but also not admitted) to what had actually been said by the administrators in this particular case. There is no petition for H’s bankruptcy, no demand has ever been made against H personally and there is no evidence of any real prospect of it. In any event, as set out in H’s written submissions, H would have strong defences to such a demand or petition, which would mean a petition would likely be dismissed or refused. The evidence simply does not support a finding that “any significant award made to him is likely to go to his creditors” and that “it would be fruitless to award the husband a significant capital sum”

“18. So far as the "needs" principle is concerned there is an almost unbounded discretion. The main rule is that, save in a situation of real hardship, the "needs" must be causally related to the marriage. Like equity in the old days, the result seems to depend on the length of the judge's foot. It is worth recalling that Heather Mills-McCartney was awarded over £25m to meet her "needs" (McCartney v McCartney [2008] EWHC 401 (Fam)). Mrs Juffali was awarded £62m to meet her "needs" (Juffali v Juffali [2016] EWHC 1684 (Fam)). In the very recent case of AAZ v BBZ [2016] EWHC 3234 (Fam) the court assessed the applicant-wife's "needs" in the remarkable sum of £224m. Plainly "needs" does not mean needs. It is a term of art. Obviously, no-one actually needs £25m, or £62m, or £224m for accommodation and sustenance. The main drivers in the discretionary exercise are the scale of the payer's wealth, the length of the marriage, the applicant's age and health, and the standard of living, although the latter factor cannot be allowed to dominate the exercise.”

“Although spousal maintenance (formerly known as alimony, but which now perhaps should now be known more accurately as ex-spousal maintenance) has been with us for generations it is a strange fact that there is not much discussion in the jurisprudence of the moral or ethical question of why after the dissolution of a marriage the law permits the imposition on a party of the obligation to pay spousal maintenance potentially until the death of the payee (even, in the case of a secured periodical payments order, after the death of the payer). While the marriage subsisted the common law imposed a duty on a husband to support his wife. In Gurasz v Gurasz [1970] P 11 Lord Denning MR said this was a feature of family life "elemental in our society". Thus in the absence of a power to dissolve a marriage the courts, both common law and Ecclesiastical, enforced that duty by making long term maintenance awards. Prior to the advent of judicial divorce in 1857 a divorce could only be obtained by a private Act of Parliament. The terms of such an Act would invariably require that the husband make some suitable, albeit moderate, provision for his former wife. So there was some kind of precedent for post-divorce alimony.”

“In Miller Baroness Hale at para 138 explained that the most common rationale for imposing the obligation to maintain into the future is to meet needs which the relationship has generated. Obviously this is a very sound rationale and it is for this reason that the factors of duration of marriage and the birth of children are so important. It is hard to see how a relationship has generated needs in the case of a short childless marriage, although this is not impossible. But where it can be argued that the relationship has generated hard needs why should meeting them be for longer than, say, the Scottish limit? The answer is best given by Lord Hope at para 118 where he explains why the Scottish limit is so unfair: "the career break which results from concentrating on motherhood and the family in the middle years of their lives comes at a price which in most cases is irrecoverable". For many women the marriage is the defining economic event of their whole lives and the decisions made in it may well reverberate for many years after its ending.”

“You have agreed not to make a claim, and so your award will be strictly limited to your needs in the period when your children are still at home with you and are costing you money.”

“Insofar as anything in the judgment may be said to be commercially sensitive, then it can simply be redacted.”

“[9] Open justice is a fundamental principle … [10] Derogations from the general principle can only be justified in exceptional circumstances when they are strictly necessary … They are wholly exceptional … [12] … Anonymity will only be granted where it is strictly necessary, and then only to that extent. [13] The burden of establishing any derogation from the general principle lies on the person seeking it. It must be established by clear and cogent evidence…. [14] When considering the imposition of any derogation from open justice the court will have regard to the respective and sometimes competing Convention rights of the parties as well as the general public interest in open justice and in the public reporting of court proceedings”

“However, I tentatively take the view that: i) As I understand it, in none of the cases before Mostyn J were these issues of principle argued. Insofar as there was any argument between the parties, it was brief and addressed the merits of anonymisation i.e the balance between Articles 8 and 10, rather than any, or any detailed, submissions about the principles underlying the practice of confidentiality and anonymity in financial remedy proceedings. ii) Mostyn J describes the decision in Clibbery v Allen as obiter, in that it concerned publication of proceedings under Part IV of the Family Law Act 1996. Nevertheless, the judgments of Dame Elizabeth Butler-Sloss P and Thorpe LJ comprehensively considered the broader issue of publicity in family proceedings including financial remedy proceedings. And Lykiardopulo, also heard in the Court of Appeal, was not obiter; the appeal concerned ancillary relief proceedings (as they were then termed) and the same conclusion was reached as to the non-reportability of financial remedy proceedings absent court order. iii) I repeat that I make no comment on whether Mostyn J is correct or not. But in the circumstances, my provisional view is that I should follow the decisions of the Court of Appeal. In my tentative opinion, it is for a higher court than mine to decide this issue, certainly unless and until I hear full and detailed argument which addresses the hugely important thesis of Mostyn J. I have had no meaningful submissions on this topic, either in this case or in any other case in front of me, since Mostyn J first set out his considered position.”

“In the event, the Court of Appeal, having conducted the same balancing exercise, came to a different conclusion: there should be no anonymisation. In other words, the Court of Appeal was acknowledging the significance of the rule change in 2009 and identifying the essential task for the court as being – and this in a case where the issue was whether or not there should be anonymisation – to undertake the balancing exercise mandated by the Convention. The ratio of the decision was that both the first instance and appeal judgments would be published without anonymity, in particular because, having undertaken the balancing exercise, the husband had behaved badly. The general practice favouring anonymisation was not an essential reason for the decision; on the contrary that practice was of no relevance to the specific facts of that case which in the final analysis, were decisive. Those specific facts meant that anonymisation would not be applied. The irony of all this will not have escaped the reader. In both Clibbery v Allan and Lykiardopulo v Lykiardopulo, the decisions of the Court of Appeal most frequently cited in support of the conventional pieties, the actual ratio was that proposed prohibition of publication or anonymisation is to be resolved having regard to and balancing the interests of the parties and the public as protected by Articles 6, 8 and 10 of the Convention, considered in the particular circumstances of the case.”

“Family Procedure Rules may, for the purposes of the law relating to contempt of court, authorise the publication in such circumstances as may be specified of information relating to family proceedings held in private.”