Log on
Browse content

Tattersall v Tattersall [2016] EWCA Civ 486

Legal Materials Copyright Statement & Disclaimer

Applicant husband's application for permission to appeal in respect of 3 orders made in relation to the enforcement of a financial remedy order made in 2012.

  • Case No: B6/2014/1106

    Neutral Citation Number: [2016] EWCA Civ 486

    IN THE COURT OF APPEAL (CIVIL DIVISION)

    ON APPEAL FROM OXFORD FAMILY COURT AND PRFD

    HHJ Wright and HHJ Tolson QC

    FD11D01750

    Royal Courts of Justice

    Strand, London, WC2A 2LL

    Date: 25/05/2016

    Before:

    LADY JUSTICE KING

    - - - - - - - - - - - - - - - - - - - - -

    Between:

    Mark Tattersall (Appellant)

    - and -

    Amanda Tattersall (Respondent)

    - - - - - - - - - - - - - - - - - - - - -

    - - - - - - - - - - - - - - - - - - - - -

    Mark Tattersall (In Person)

    Amanda Tattersall (In Person)

    Hearing date: 9th May 2016

    - - - - - - - - - - - - - - - - - - - - -

    Judgment
    Lady Justice King:

    1. This is the applicant husband's application for permission to appeal in respect of 3 orders made in relation to the enforcement of a financial remedy order made on 21st December 2012.

    2. The husband's appeal against the substance of that order made by Her Honour Judge Wright following a fully contested hearing over 3 days in August 2012, was dismissed after a full hearing by the Court of Appeal on 9th July 2013.

    3. This was a 12 year marriage, there is one child born 10th December 2009 who lives with the mother under a residence order.

    4. The Judge's order, in this modest asset case, was made on a "needs" basis and provided the wife with approximately 70% of the available capital together with ongoing periodical payments. In particular, relevant to the present applications the following orders were made:

    "2. The property at 13 Anson Road, Upper Cambourne, Cambridge CB23 6DJ registered under the title number CB349043 shall be sold forthwith on the open market and the following consequential provisions shall apply:

    a. The property shall be offered for sale by Connells estate agents;

    b. The property shall be marketed initially at £260,000, and subsequently at such price as shall be determined between the parties, or in default of agreement, as determined by the Court;

    c. The property shall be sold for such price as may be agreed between the parties, at/or in excess of £250,000, or in default of agreement, as determined by the Court;

    d. The Petitioner shall have conduct of the sale;

    e. Withy King solicitors shall have conduct of the sale;

    f. The proceeds of sale shall be applied as follows:

    i. To discharge the mortgage secured in favour of the Halifax, including any arrears accrued;

    ii. To discharge the mortgage secured in favour of Gallos;

    iii. To discharge the solicitors and estate agents costs, charges and disbursements;

    iv. To discharge any capital gains tax payable on sale, the amount, if any, to be agreed or determined by the parties within 28 days of accepting any offer to purchase (such amount if any to be held by the Petitioners solicitors pending payment to HMRC, which shall not delay any payment due to the parties from the proceeds of sale);

    v. The balance to be divided between the parties as to £35,000 to the Respondent, and the balance to the Petitioner.

    5. The Respondent shall pay periodical payments to the Petitioner for the benefit of the Petitioner and the child Emily Tatersall (born 10 December 2009) at the rate of £1,070 per month in advance, such payments to be made on the first day of each month and backdated to 12 October 2012. Such payments do include any CSA payments made by the Respondent on an ongoing basis, and any subsequent assessment liability made by the CSA or other equivalent body.

    6. The above periodical payments order for the benefit of the Petitioner shall cease on the first of the following events:

    a. The death of the Respondent or the Petitioner;

    b. The remarriage of the Petitioner;

    c. 1 September 2020;

    d. Any further Order terminating such payments.

    7. From 1 September 2020 the Respondent shall pay nominal periodical payments to the Petitioner at the rate of £0.05 per annum, payable annually which shall cease on the first of the following events:

    a. The death of the Respondent all the Petitioner;

    b. The remarriage of the Petitioner;

    c. 1 September 2027.

    8. The Respondent's obligation to make periodical payments to be Petitioner shall cease on 1 September 2027 after which date the Petitioner will not be entitled to make any further application in relation to the marriage for an order pursuant to s23(1)(a) or (b) of the Matrimonial Causes Act 1973; and the Petitioner shall not be entitled to make any further application to extend or vary such order pursuant to Section 28 (1A) of the Matrimonial Act 1973."

    It follows from the dismissal of the husband's appeal that he was bound by the terms set out above as well as the other terms on the order and in particular the ongoing order for periodical payments.

    5. In brief the grounds of appeal are as follows:

    i) B6/2014/1106

    This is an appeal against a Case Management order made on 13th March 2014 by Her Honour Judge Wright whereby she ordered all outstanding applications to be listed for a hearing on 6th May 2014. In addition she made a number of orders for Case Management directions and dismissed an application that she recuse herself from proceedings.

    ii) B6/2014/3906

    This is an appeal against the order of 23rd September 2014 following the substantive hearing which took place on the 3rd June 2014 before HHJ Wright with judgment on the 30th July 2014 (amended and corrected 1st September 2014). By the Appellant's notice of the 20th October 2014 the applicant requires permission to appeal out of time which application is granted.

    The order of the 23rd September involved the judge working out the distribution of the sale proceeds of a property in Cambridge which had already been sold, the net proceeds of sale being less than that which had been anticipated at trial (Order of 21st December 2012). In addition the judge gave permission to the wife to enforce all outstanding periodical payments (including those over 12 months old) against the capital sum the husband was to receive at following sale. The judge once again refused to recuse herself. In addition the judge made orders staying the enforcement of arrears in the sum of £7,579.07 being the arrears alleged to be owing between November 2013 and July 2014. The stay was made on the basis that the husband would, by 24th November 2014 produce a copy of the application he told the court he had made for a variation of the original periodical payments order but which the court did not have before it. The stay was to be lifted automatically in the event that the husband failed to file the relevant documents.

    iii) B6/2015/2649

    This final application for permission to appeal relates to an Order made by His Honour Judge Tolson QC on 1st June 2015. By his order the Judge made an order capitalising the Respondent's periodical payments order and ordered the husband to pay a lump sum of £83,488.84 to the wife on or before the 1st July 2015, failure to satisfy the lump sum payment would lead to a property held in the Applicant's sole name in Liverpool being sold and the lump sum satisfied from the proceeds of sale.

    6. This final order was made with the husband being neither present nor represented.

    7. These proposed appeals are but the tip of the litigation iceberg. I understand that there have been six appeals to this court in respect of the child of the marriage under the Children Act 1989. One of the inevitable consequences of cases such as these where, as here, one party simply refuses to accept the decision of the court is that there is a flurry of applications, cross applications and appeals inevitably leading to procedural difficulties considerably exacerbated by the fact that both parties are Litigants in Person. This case is no exception but before considering briefly the specific applications for permission I should deal with a number of preliminary matters.

    Orders of a Stay of Execution

    8. The applicant appears to have misunderstood the functions of stays. These are orders made to "hold the line" until a particular date or event in order to give a party an opportunity to make an application as, for example, here with the order of Her Honour Judge Wright on 23rd September 2014. The recurrent theme in the husband's grounds of appeal, and repeated by him to me orally, is that he is not in arrears of the payments of the periodical payments ordered in December 2012. He persists in saying that there continues to be a stay in relation to the order stemming from the granting of permission to appeal, an extension of time and stay of appeal order payments which had been granted by Aikens LJ on 14th March 2013 prior to the husband's unsuccessful appeal in relation to the substantive order.

    9. That order was in standard form to protect the husband's position pending the hearing of the appeal. At the conclusion of the appeal Black LJ confirmed the order of December 2012 which included the order for periodical payments set out at paragraph 2 above, and it follows therefore, as has been emphasised by judges time out of number in the transcripts and orders which have been made available to me, that the applicant is obliged to make payments under the order until such time it is discharged or varied. Failure to pay periodical payments have inevitably and properly led to enforcement proceedings of the type instituted by the Petitioner. That the applicant was fully well aware that this was the position can be gleaned from an order made by His Honour Judge Altman sitting at the Principal Registry of the Family Division on 30th July 2013 (a matter of days after dismissal of the husband's substantive appeal) at a directions hearing dealing with the sale of the Cambridge property and which the applicant attended by telephone. That there was no continuing stay was confirmed and is recorded on the face of he order as follows:

    "And upon the Clerk of this court having spoken to the Court of Appeal Caseworker and it having been confirmed by the Court of Appeal that the stay has been lifted."

    10. It follows therefore that any application for permission to appeal which relies on a ground of appeal dependent on the alleged existence of a stay is refused as being totally without merit.

    Case Management

    11. Many of the applicant's complaints stem from submissions made by him that the judges have failed properly to comply with the family proceedings rules. In considering whether or not the applicant can satisfy the court that there is a real prospect of success in appealing the order in question, I bear in mind the court's wide powers of case management together with the overriding objective and the court's duty to manage cases found in the Family Rules Proceedings 2010 in particular r1 and r4.1.

    Recusal

    12. The applicant has made a number of applications for, in particular, Her Honour Judge Wright to recuse herself. The leading case on recusal remains Porter v McGill [2001] UKHL 67 2002 2AC 357 at 494 where Lord Hope said at paragraph 103:

    "The question is whether the fair-minded and informed observer having considered the facts would conclude that there was a real possibility that the tribunal was biased".

    13. I am satisfied having read everything that has been put before the court, including the transcripts of many of the hearings, that no fair minded observer would conclude that there was a real possibility that Her Honour Judge Wright or His Honour Judge Tolson were biased. For example in the hearing of the 3rd June 2014 (B6/2014/3906) the judge declined to recuse herself having rightly observed that the fact that the husband obtained a stay in relation to the implementation of her original order pending appeal was not a ground for bias. She went on to note that in any event the appeal had been dismissed.

    14. There is no prospect of the Applicant succeeding on any appeal alleging bias on the part of any of the judges who have dealt with these matters and any grounds of appeal which rely on a judge's refusal to recuse themselves are refused as being totally without merit.

    15. The papers put before the court are voluminous. They not only include transcripts of judgments and hearings but numerous emails. The papers are however incomplete in that a number of orders are missing and it is only with upmost difficulties that I have been able to piece together a chronology which, despite all my efforts, I am confident will be incomplete in certain respects. The applicant has drafted lengthy grounds of appeal but, in his oral submissions before me he has made it clear that his central submission is that the proceedings in relation to the working out of the order and enforcement of the order of 21st December 2012 have bristled with procedural irregularities which have resulted in him being seriously prejudiced and that as a consequence draconian orders have been made absent proper due process. The applicant in this respect seeks to appeal:

    i) the order of Her Honour Judge Wright dated 23 September 2014 whereby the judge provided for the distribution of the net proceeds sale following the sale of the Cambridge property;

    ii) Orders made on 23 September 2014 relating to the enforcement of periodical payments by Her Honour Judge Wright including the granting of permission for the respondent to enforce periodical payments arrears including those over 12 months old against the husband's share in the net proceeds of sale of the Cambridge property;

    iii) The order of His Honour Judge Tolson QC of 1st June 2015 capitalising the respondent's periodical payments and ordering the husband's Liverpool property to be sold in the event that the consequential lump sum order was not satisfied.

    16. Before turning to those discrete issues I deal briefly with B6/2014/1106, the applicant's appeal against the Case Management Order made on 13th March 2014 by HHJ Wright. This is academic appeal against a case management order which led to a hearing that took place on the 3rd June 2014 before HHJ Wright the order from which is itself subject to appeal. The husband argues that the judge failed to follow the correct procedure in particular Family Proceeding Rules, 9.12. The applicant however accepts that at the hearing the judge was unaware that he (the applicant) had issued a variation of periodical payments application and she could not therefore have been expected to make the orders argued for by the applicant. There is no prospect of the applicant succeeding on an appeal in relation to this case management order and application for permission to appeal is refused as being totally without merit.

    The Cambridge Property

    17. As noted above, the original order anticipated the Cambridge property would be marketed at £260,000. The order was drafted in conventional terms providing for the discharge of the mortgage secured in favour of the Halifax "including any arrears" accrued. The order provided for the balance, after all relevant payments, to be divided between the parties as to £35,000 to the applicant and the balance to the respondent (which was then anticipated to be within the region of £10,000). The matter came before His Honour Judge Altman on 30th July 2013 when, in accordance with paragraph 2c of the order of Her Honour Judge Wright of December 2012, the judge determined the sale price of the property to be £246,500. Judge Altman made provision for further determination as to how the proceeds were to be distributed, given that it was clear that the previously anticipated sale price was not to be achieved, in particular he ordered that the matter was to be put before Her Honour Judge Wright to clarify:

    a) Whether the sum of £35,000 is to be paid to the Respondent without regard to the actual sale price and without any discount in the event that the sale price achieved is less than £260,000;

    b) whether in the event that the net proceeds of sale are insufficient to pay the said sum of £35,000, any other of the Applicant's assets were to be charged with the shortfall.

    18. On 30th August 2013 the Respondent wrote to the Court to inform the judge that the Halifax had commenced repossession proceedings on the Cambridge property. There were then emails from both parties to the court about this matter. Doing the best I can, it seems clear that the respondent's solicitors advanced to the respondent a loan of approximately £15,000 to cover the mortgage arrears in order to stave off possession proceedings up to the date of anticipated completion of the sale of the Cambridge property. The judge on 25th September 2013 amended the original December 2012 order to add a paragraph 2(f) (iiia) providing for the discharge of the loan which had been used to pay off the mortgage arrears upon the sale of the Cambridge property. There is no appeal against that order. In any event the original order anticipated, as it must, satisfaction of any arrears. The amended order merely reflected the inevitable consequence of arrears having accrued.

    19. By the order of 25th September 2013 HHJ Wright gave permission to the applicant to apply in writing in relation to the amendments made given that this hearing had taken place without notice to him. The applicant took me to his objections, written by him on 3rd October 2013 where he suggests that the capital available for distribution is less due to the behaviour of the respondent in relation to that property. There is however no appeal against making that order and it therefore stands. It is against the backdrop of that order that the court, once the property was finally sold on the 12th November 2013, would determine pursuant to HHJ Altman's order how the proceeds of sale should be distributed.

    20. On 12th December 2013, the judge following emails from both parties, ordered a hearing for 3rd February 2014 to resolve the outstanding issues including varying the order of 21st December 2012 to reflect the fact that the proceeds of sale of the Cambridge property amounted to only £23,913. The judge made orders for evidence and submissions to be filed by both parties by the 20th January 2014. The wife accordingly filed her statement/permission on the 10th January 2014. On 24th January 2014 the applicant wrote to the court stating that he was not aware what he was required to submit and in due course the deadline for filing such a statement passed. Unhappily, due to various difficulties, a hearing was lost on the 31st January 2014 and the hearing on the 13th March 2014 was ineffective. However, the judge listed the hearing for 6th May 2014, made provision for disclosure and updating information to be exchanged, together with questionnaires and replies. The wife replied to the husband's questionnaire on 28th March 2014.

    21. The hearing finally took place before HHJ Wright at the Central Family Court on 3rd June 2014.

    22. The Judge set out in her judgment (paragraph 6) the history of the sale of the property noting provisions made on the 25th September 2013 to allow for repayment of the mortgage arrears to prevent repossession and that the net proceeds for sale, rather than being the anticipated £45,052, were in fact £23,913. The judge had the order that had been made by Judge Altman and the history of proceedings to date. The judge said at paragraph 9 as follows:

    "On 3rd June at court at various times R appeared to be quite unwell; at one point medical staff were offered, although he refused their assistance: R told me in court he might be suffering from heart failure, and explained do me that he was finding the hearing very stressful that day. As I had not received any written documents and did not really understand R's case fully, I indicated I would receive any further written submissions from either party and in due course I would issue a judgment on the outstanding issues. R also wanted to make a further application for me to recuse myself from the case which again I indicated I would deal with in writing. Having heard nothing from either party after the hearing, I sent an email to both parties through the CFC Court Administration requesting written representations on the outstanding issues including R's application for me to recuse myself, to be submitted by 16 July 2014. I received written representations from both parties on my return from leave on 17 July."

    It was in the light of those written submissions that the Judge produced a judgment dated 30th July 2014. I deal at this stage only with the distribution of the proceeds of sale. The Judge having taken into consideration each parties' circumstances, decided that of the £23,931 available £23,000 should be paid to the husband and the balance to the wife. This was on the basis that the husband's debts as stated in 2012 which were to be satisfied out of the £35,000 had in fact been settled for £18,000 rather than £30,000. In the view of the judge this meant that the intention of the original order was satisfied and the husband was, to all intent and purposes, given the majority of what was available to distribute. The wife was compensated by the fact that another property in Oxford had sold for rather more than had been anticipated.

    23. The husband's grounds of appeal challenges the distribution outlined above and says that the sum available to him was reduced without notice that such a variation was being considered. In my judgment it had been entirely obvious that since the direction of His Honour Judge Altman on 30 July 2013 and the unappealed order of 25th September 2013 that as a consequence of difficulties in relation to the sale of the Cambridge property there would be a smaller sum to be distributed than had been hoped for in the original order. HHJ Wright gave careful consideration as to how such money as was available could best be distributed in so far as possible, whilst, honouring the intention of the original order.

    24. In my judgment there is no prospect of the applicant succeeding in an appeal in respect of the judge's order of the 23rd September 2014 whereby she made orders for the distribution of the proceeds of sale of the Cambridge property and permission is accordingly refused.

    Periodical Payments

    25. The last area upon which the applicant focuses is the manner in which enforcement for arrears for periodical payments has been dealt with by the court.

    26. It is undoubtedly the case that the applicant is substantially in arrears of periodical payments under the December 2012 order. He paid for some time only that sum which was payable under the CSA and for a considerable period has paid nothing at all. The husband now seeks permission to appeal the two orders which have dealt with the applications (formal or informal) made by the Respondent to enforce arrears of maintenance.

    27. Those orders are:

    i) 23rd September 2014 HHJ Wright:

    "3. Permission granted to Petitioner to enforce all arrears of periodical payments, including those over 12 months old, pursuant to paragraphs 5 and 6 of the Order dated 21 December 2012; the total sum outstanding being £16,340.24; which shall be enforced against the above sum payable to the Respondent as set out above; leaving a balance payable to the Respondent of £6,659.76."

    ii) 1st June 2015 HHJ Tolson QC:

    "Upon hearing the wife in person and he husband being neither present nor represented; And upon he wife demonstrating proper and effective service of notice of the application upon the husband; And upon the wife (i) establishing by evidence that the husband had failed to pay periodical payments in accordance with the terms of existing orders; and (ii) giving details of the highly unusual nature of the husband's conduct of past litigation and lack of regard for orders of the court; and upon the Court being satisfied that the husband had deliberately not paid periodical payments and would be highly unlikely to pay in future, and is likely to attempt to take any steps open to him to frustrate the wife's claims and entitlements to ancillary financial relief; and upon the Court considering that in principle the husband should continue to pay periodical payments at the levels fixed by the formula in the order dated 10 December 2012 until 1 September 2020 as the order provides; and (ii) then discounting the sums payable in future to account for early receipt.

    IT IS ORDERED THAT

    ….

    2. The order dated 10 December 2012 be varied by providing that the husband do pay to the wife a lump sum pursuant to section 31(7B) of the Matrimonial Causes Act 1973 in substitution of her claims to periodical payments under paragraphs 5-7 (but not paragraph 8) of the order between the date of this order and 1 September 2020, to include the existing arrears due under paragraphs 5-7.

    3. The existing arrears are assessed as £8,991.23.

    4. The sums due hearafter under paragraphs 5-7 are assessed gross at £84,282.25.

    5. The figure set out in the preceding paragraph shall be discounted for early receipt by a factor of 0.8839 (per the Ogden Tables approach) the lump sum payable by way of capitalisation of future sums is assessed as £74,497.61 together with the arrears of £8991.23 making a total of £83,488.84.

    6. The aforesaid sum shall bear interest from 1 July 2015 at the rate of 2.5% per annum until receipt.

    7. The husband shall pay the lump sum aforesaid to the wife on or before 1 July 2015.

    8. In the event of non-payment of the sums at paragraphs 5 and 6 above by 1 July 2015, the property currently held in the name of the husband at 426, South Ferry Quay, Liverpool shall be sold pursuant to section 24A of the Matrimonial Causes Act 1973 and all sums due under this order shall be paid to the wife from the proceeds of sale."

    28. The applicant's complaint needs to be considered against the backdrop of his own application to vary periodical payments. For the purposes of this application for permission, I merely highlight the procedural difficulties which have arisen and am not examining the precise procedural position at any particular stage, although I emphasise that I have read all the papers and am familiar with the husband's argument in relation to both orders.

    29. On 9 October 2013 the applicant filed an application to vary the periodical payments order made in December 2012 on the basis that the wife was in receipt of 15 hours free nursery each week and that her own income had increased. At that stage the applicant did not pay the fee and the application was not therefore issued. On 27th January 2014 the husband paid the fee and the application was therefore issued.

    30. On 31st January 2014 HHJ Wright made an administrative direction that the application to vary would be heard at the PRFD on 13 March 2014. As has already been noted, the hearing of the 13th March 2014 was ineffective and the judge gave directions that all outstanding applications were to be listed for the hearing on the 6th May 2014. Unhappily the hearing in May did not go ahead, and at the hearing on the 3rd June 2014 which had dealt, inter alia, with the distribution of the proceeds of the sale of the Cambridge property, there was no hearing of the applicant's application to vary periodical payments. What is clear was that in a number of emails to the court, issues as to arrears of periodical payments and enforcement of periodical payment after 12 months were raised by the wife, and also on the husband's part, the fact that his variation application was still outstanding.

    31. HHJ Wright dealt with the periodical payment arrears but not the applicant's application to vary the original order, matter in her judgment of the 30th July and in her subsequent postscript, which were thereafter reflected in the order of the 23rd September 2014. The judge had been unable to trace the variation application brought by the husband within the court, she therefore gave the husband an opportunity to produce a copy of the sealed application by the 24th November 2014 and provided a stay in respect of the alleged arrears of periodical payments calculated to cover the period between the issuing of the application and July 2014.

    32. By that the order the judge, without a further hearing, granted the respondent permission to enforce arrears notwithstanding that they were over 12 months old and directed that the arrears as calculated by the wife, should be set against the £23,000 which the husband was due to receive from the net proceeds of sale of the Cambridge property.

    33. In September or October 2014 in compliance with the order of HHJ Wright the husband filed a statement exhibiting the sealed application for a variation of periodical payments dated the 27th January 2014 together with a copy of the directions made by HHJ Wright on the 31st January. The applicant set out his case in relation to periodical payment in that statement.

    34. On 14th January 2015 there was a lengthy directions hearing before DDJ Edwards attended by the applicant by telephone. I have been unable to track down a copy of the resulting order and I accept that the husband, notwithstanding that he has contacted the court on a number of occasions, has himself never received a copy of the order. It was clearly the understanding of both parties that DDJ Edwards had made conventional directions to progress the applicant's variation application providing for the parties to file Forms E. There is reference in various emails sent by the parties to the court relating to filing documents pursuant to the order of DDJ Edwards.

    35. There appears to have been a directions hearing on 9th April 2015 before HHJ Tolson QC. This was clearly a fraught occasion which necessitated the applicant being removed from the court by security staff. The order made recorded that the respondent had applied for enforcement of periodical payments and that the application had been transferred to Oxford, it also records the fact that the applicant had applied to Oxford for a variation of periodical payments and that the respondent intended to apply for arrears to be paid from certain properties owned by the husband.

    36. On 21st May 2015 there was a hearing at which the husband was not present. The order, which is dated 1st June 2015 and which is the subject of this application records: "And upon the wife demonstrating proper and effective service of notice of the application upon the husband."

    37. The transcript of the hearing which took place on Monday 1st June records the respondent saying that she had served an application on the applicant saying: "I sent it next day delivery, and I checked on Friday and it still hasn't been collected." The judge appeared satisfied with that as proof of service together with the appropriate receipt. The transcript then shows that the judge clarified that the order sought by the respondent was for a property in the applicant's name in Liverpool to be charged with an amount representing capitalisation of the periodical payments in favour of the wife. The respondent confirmed that that was the case and spoke of her fear that without a quick sale of the property the applicant would allow the mortgage to go into arrears which would lead to the repossession of the property. When the judge confirmed that that was why she wanted "everything in one go now" the respondent replied "it's kind of, why I tried to do it ex-parte, because I thought the longer he's got the information, the more likely he is to try and do something with it."

    38. The judge gave a brief judgment acknowledging that the orders he proposed to make were "radical and unusual" and which "were uncommon for a court to make at one single hearing". The judge said that the history of the litigation justified the approach and that he had no hesitation in making the order sought.

    39. The judge gave the applicant liberty to apply to set aside the order provided that if he did so then that would be at a hearing which only he should attend in the first instance.

    40. The result of that hearing was that the wife's application for capitalisation of periodical payments was granted at the rate made in the original December 2012 order, although a discount for early payment was made.

    41. At the oral hearing of this application for permission to appeal my initial indication was that the applicant, having appealed rather than seeking to set aside the order of HHJ Tolson QC as provided under the liberty to apply provision for in his order, had not exhausted his remedies and that the proper course was therefore for his application for permission to appeal to be either adjourned or dismissed and for him to apply to set aside the capitalisation order.

    42. During the course of the hearing, the applicant provided me with significant further information which has enabled me to understand the difficulties which have arisen in relation to the applicant's undetermined application to vary periodical payments issued as long ago as January 2014. It is arguable that the resolution of that application was critical to HHJ Wright's assessment of arrears found in the order of 23rd September 2014 (given that an order can be varied backdated to the date of the application) and further that, as the first step in any application to capitalise periodical payments, is for the court to consider any application to vary. Only then will the judge have a base figure from which to capitalise if appropriate.

    43. Accordingly in my view, with considerable reluctance given the appalling litigation history, I am driven to conclude that the applicant has a real prospect of successfully appealing the orders of 23 September 2014 and 1 June 2015 in so far as they relate to enforcement of arrears of periodical payments and the capitalisation of the same and permission to appeal is granted to this limited extent.

    44. In order for a court to be in a position to address the relevant issues and, importantly, for the respondent to be clear in her mind as to the matters in relation to which permission has been granted, I now set out the issues upon which I give permission:

    i) As to whether applications for enforcement of periodical payments in particular against property and or capitalisation of periodical payments should be made by way of informal application on whether such applications should be made only by way of formal application with supporting evidence and thereafter be heard inter-parties upon proper notice.

    ii) Whether it was appropriate for either the orders of the 23 September 2014 or 1 June 2015 to be made prior to the hearing of the applicant's application to vary periodical payments.

    45. I wish to emphasise for the benefit of the applicant who continues to be a litigant in person that permission is granted only as:

    i) Order 23 September 2014 paragraph 3 which provides:

    "Permission granted to Petitioner to enforce all arrears of periodical payments, including those over 12 months old, pursuant to paragraphs 5 and 6 of the Order dated 21 December 2012; the total sum outstanding being £16,340.24; which shall be enforced against the above sum payable to the Respondent as set out above; leaving a balance payable to the Respondent of £6659.76."

    ii) Order 1 June 2015 paragraph 2 to 8 inclusive.

    46. For the avoidance of doubt the prohibition upon the applicant selling, charging or letting otherwise dealing with 426 South Ferry Quay, Liverpool found in paragraph 1 of the order 1st June 2016 shall continue to be in force until the hearing of the appeal or further order.

    47. It seems clear that much of the difficulty in this case has stemmed from the file moving between Oxford and London and also as a consequence of both parties routinely writing to the court by email seeking orders, asking for clarification and protesting about the behaviour of the other party. As a consequence, the applicant's application to vary periodical payments has never been determined.

    48. It may be even yet that the inevitable cost associated with a further appeal in this matter could be avoided if, by agreement, the parties could see their way forward via formal applications, filing of evidence and a structured issues based hearing, to a proper determination of the variation application followed by consideration of the enforcement of the considerable arrears of periodical payments.


Published: 26/05/2016

Bookmark this item




Copyright 

Copyright in the original legal material published on the Family Law Hub is vested in Mills & Reeve LLP (as per date of publication shown on screen) unless indicated otherwise.

Disclaimer

The Family Law Hub website relates to the legal position in England Wales and all of the material within it has been prepared with the aim of providing key information only and does not constitute legal advice in relation to any particular situation. While Mills & Reeve LLP aims to ensure that the information is correct at the date on which it is added to the website, the legal position can change frequently, and content will not always be updated following any relevant changes. You therefore acknowledge and agree that Mills & Reeve LLP and its members and employees accept no liability whatsoever in contract, tort or otherwise for any loss or damage caused by or arising directly or indirectly in connection with any use or reliance on the contents of our website except to the extent that such liability cannot be excluded by law.