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Mann v Mann [2014] EWCA Civ 1588

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Wife's application for a variation on a stay of enforcement of a periodical payments order by means of a judgment summons under section 5 of the Debtors Act 1869. The variation was granted and the appeal hearing brought forward by 3 months.

  • Neutral Citation Number: [2014] EWCA Civ 1588

    B6/2014/1719

    IN THE COURT OF APPEAL (CIVIL DIVISION)

    ON APPEAL FROM THE PRINCIPAL REGISTRY

    FAMILY DIVISION

    (MR JUSTICE MOSTYN)

    Royal Courts of Justice

    Strand

    London, WC2A 2LL

    Wednesday, 5 November 2014

    B e f o r e:

    LORD JUSTICE McFARLANE

    Between:

    MANN (Appellant)

    v

    MANN (Respondent)

    DAR Transcript of the Stenograph Notes of

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    Mr R Howling QC (instructed by Direct Access) appeared on behalf of the Appellant

    Mr J Warshaw (instructed by Sears Tooth) appeared on behalf of the Respondent

    J U D G M E N T

    (Approved)

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    LORD JUSTICE McFARLANE: The proceedings with which I am concerned this morning relate to a very long standing dispute within divorce proceedings between a formerly married couple, as to the working out of various orders and agreements that have been made between them from time to time for the final settlement of capital payments. In the course of those proceedings, Mostyn J has assumed jurisdiction to make a fresh periodical payments order and has set by an order of 12 May 2014 set the rate at £120,000 per year, payable monthly in advance.

    It is accepted that, certainly in recent years, the husband has been paying to the wife the sum of £4,000 per month towards her rent. It is part of the history that until October 2013 he was paying an additional £6,000 a month to top up her income to cover the rental payments that she had. That stopped in October. Part of the practical reasoning behind Mostyn J's order is to reinstate that top up payment. The husband has been paying sums that total, at least smoothed out over the course of a month or two, £4,000 a month to the wife, but those payments are haphazard, unpredictable and, in the course of any particular month, seem to total some 12 or 15 individual sums.

    That situation has been unsatisfactory for the wife, partly because it has produced a shortfall in her rent. She now owes unpaid rent of around £50,000. She also is unable to show, either to her current landlord or any future landlord should she lose this accommodation, that she even has the £4,000 a month coming in regularly because of the haphazard way it is paid. So the order of Mostyn J of 12 May 2014 sought to regularise matters in the wife’s favour.

    The husband seeks to challenge that order. By a notice of appeal filed promptly on 30 May, he challenges both the detail and the quantum of the order, but more importantly, he challenges the very basis of the jurisdiction that Mostyn J assumed to enable him to grant that relief to the wife.

    In due course, the papers came before me. I granted permission for the husband to appeal on the basis that the points he makes, and in particular the points as to the core jurisdiction, have a reasonable prospect of success on appeal. I say no more about that, save that Mr Rex Howling QC, who appears for the wife today, acknowledges that there are arguments both ways. He has helpfully rehearsed some of the points that would be made on the wife's part. It remains my view that it will be a case which will require quite extensive investigation at the full appeal hearing. It is not possible sitting here today, or indeed right, for me to predict what the outcome will be. It is, in short, a proper case for appeal.

    The reason for the hearing this morning is to consider once again the interim arrangements, because as each month comes by, the wife has a shortfall in her ability to pay. She is now facing possession proceedings, which are due to be heard in the county court at Hammersmith in one week's time. She applies this morning for a variation of the stay on the enforcement proceedings that could be taken to enforce the periodical payments element of Mostyn J's order.

    Stays are in place. First of all, Gloster LJ, having looked at the papers, I think as the out of hours judge, on 3 June 2014, granted a stay in these terms:

    "I order that there be a stay of enforcement of the 12 May order by means of a judgment summons under section 5 of the Debtors Act 1869 (but not otherwise) pending the determination of the Appellant's application for permission to appeal."

    Following that order, the wife went back to Mostyn J. He apparently considered that my Lady's order did not prevent him from proceeding with the court based stages of the examination of the husband under a judgment summons, but that it would prevent the court moving onto the disposal stage and determining, if findings adverse to the husband were made, what the outcome would be in terms of committal to imprisonment or otherwise.

    Longmore LJ considered that issue on 26 June, again on paper. He clarified the point, holding that Gloster LJ's stay stayed the entire judgment summons process and was not simply limited to staying the outcome of that process by imposition of a term of imprisonment.

    When granting permission to appeal on 4 July, I continued the stay granted by Gloster LJ, as clarified by Longmore LJ. It is that stay that Mr Howling invites me to reconsider this morning in the light of his client's pressing circumstances.

    The variation Mr Howling seeks is to reinstate the position as it seems to have been perceived to be by Mostyn J in the middle of June, namely to allow a judgment summons under section 5 of the Debtors Act 1869 to be issued and to proceed before the court, but that there would be some form of words clarifying that the stay remained in terms of preventing the court concluding the process by imposing any penalty by way of imprisonment on the husband.

    I have been assisted in understanding the detail of this matter, and refreshing my knowledge of it, to a very large extent by Mr Howling's very helpful note and the sensibly arranged bundle that has been prepared. I have also been assisted by similarly clear and succinct submissions by Mr Justin Warshaw, counsel for the husband.

    In the course of the communications between the three of us this morning in court, I have tried to investigate the possibility, irrespective of the legal niceties, for some flow of cash from the husband to the wife, given that it is confirmed by Mr Warshaw that the husband accepts, in principle, some liability for the capital element which is still to be considered and is seperate to the appeal proceedings, albeit that he does not agree the total quantum of the wife's claim.

    Mr Warshaw explains that the husband is in an impecunious state, his housing is as insecure as the wife's and no offer can be made. Mr Warshaw points to the hope of “jam tomorrow”, as it were, from two sources which are currently frozen or otherwise constrained within orders. But it seems to me that if money comes from those sources, that would be a bonus rather than something that could be relied upon or shown to the court at Hammersmith next week.

    A further factor for consideration is the length of time that the parties have had to wait for the appeal to come on. At present, it is fixed for hearing on either 24 or 25 February 2015 for a day. It is possible for the court to accommodate it at an earlier date, 2 December. That proposition was floated on paper, but was not agreed between the parties because counsel for the husband is due to be on day two of an eight day trial in a different case before a High Court Judge. He tells me his instructing solicitor, the partner of the firm who would otherwise wish to be here, is also unavailable. Mr Howling nevertheless urges me to bring the appeal hearing forward.

    Mr Warshaw's submission is to argue that the variation that the wife now seeks is an empty vessel. It will not help her at all. If the facility to start judgment summons proceedings is given to her by the variation that I am urged to make, no hearing could take place before March or later next year. It would not achieve a result in terms of any order biting on the husband at the end of the process. It would cost further money to parties who can ill afford it and it would deflect them from the process which is set in train, namely the appeal and the judgment summons in relation to the capital side of the order. He says it would, therefore, simply be an inconvenience, an expense and not move matters forward for the wife.

    Mr Howling responds by saying that it would, limited though the relief would be, be of assistance, largely, as I understand it, by providing proof that could be put before the judge in Hammersmith next week to show that the wife is doing something within proceedings, which do have a substantial financial value should she succeed in enforcing any order, if the husband’s appeal is unsuccessful.

    It will give the wife's advocates appearing for her next week the chance to persuade the judge to allow her a bit more time with the result that she and the two grown up children of the family could remain in their present accommodation. Mr Howling also explains that the process will avoid delay at a later stage if, as I have indicated, the proposed appeal goes against the husband and in favour of the wife.

    Having considered the submissions that have been made, I am persuaded that I should vary the stay in the way that Mr Howling has described. In the end, it is up to the wife what she does in terms of progressing that application. I do see that there may be a value to her in simply issuing the judgment summons so that she can deploy that fact next week before the county court in Hammersmith in the way I have described.

    It may be that it cannot be listed for hearing until after the other matters I have described have worked their way through in March or later next year, but it may be that she can persuade the listing authorities to bring it on sooner or on a more discrete basis before another judge. It may be that Mostyn J, who is well aware of this case, is able to accommodate it unexpectedly in his list if listing arrangements permit. I think she should be able to use this facility if, on advice, she considers that it is worth moving forward.

    The prejudice to the husband is relatively minimal. He does not risk the primary consequence of the process, which would be imprisonment, which all agree is unconscionable whilst the appeal is pending.

    So I grant a variation of the stay along the lines Mr Howling has described to me. I use the phrase “along the lines” because he accepts that there is a need to finesse the wording of the order. No doubt Mr Warshaw will have to be involved in that. I need to approve it in due course.

    I also am persuaded that the appeal should be brought forward. Counsel's convenience is often taken into account, particularly in these complicated money cases, but it seems to me that it is not helping anybody for this couple to have to wait another three months for this important issue to be clarified. It is also not helpful for it to be clarified only a week or two before the hearing before Mostyn J in March, albeit that is to do with a different area of the case.

    The sooner these issues are clarified and the people involved, the parties and their lawyers, know where they are the better. The benefit of that, I think to the husband as well, is worth the detriment of fixing a date which is currently inconvenient for his counsel and solicitor.

    When I was a High Court Judge, not infrequently I was told by counsel that they had to have one day off to attend the Court of Appeal for a particular case or another. My practice was always to accede to such a request. Mr Warshaw will have to make his application to the judge. I anticipate that, tight though these things are, an eight day trial window will allow some latitude for him to be absent on day two. Indeed, the judge may value knowing in advance that is happening so that reading can be undertaken after the opening of the case by the advocates.

    I vary the stay on the basis I have described and I direct that the date for the hearing of the appeal be brought forward to 2 December 2014.

    SMITH BERNAL WORDWAVE


Published: 15/12/2014

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