Family Law Hub

Howell v Howell [2013] EWCA Civ 268

  • Neutral Citation Number: [2013] EWCA Civ 268

    Case No: B6/2013/0019,






    Royal Courts of Justice

    Strand, London, WC2A 2LL

    Thursday, 21st February 2013



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    NALINI HOWELL (Respondent)

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    MARK HOWELL (Appellant)

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    (DAR Transcript of

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    The Appellant appeared in person.

    The Respondent did not appear and was not represented.

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    (As Approved by the Court)

    Crown Copyright(c)Lord Justice Thorpe:

    1. This is an application by Mr Mark Howell to gain permission to appeal the order of HHJ Horowitz QC sitting on 14 December 2012. The case has a complex and highly unusual history that flows from the separation of this couple in the summer of 2010. They married in 2003, and they had one child born later in the same year. Following the separation in summer 2010, the wife filed a petition for dissolution under section 12B, i.e. a conduct petition, which the judge described as being "old fashioned in the weight of the allegations that were being made, rather than more moderate modern ones".

    2. On 11 February 2011 the Deputy District Judge set the matter down as a defended divorce. But shortly before the trial a compromise was put before HHJ Horowitz. The nature of the compromise was that the wife's petition would be stayed and that the marriage would be dissolved on a two-year separation petition, which would be open for presentation on 23 July, and to that the husband would consent. So all seemed to be sensibly resolved.

    3. However, when the time came, the husband was not prepared to give consent. The wife therefore applied to be released from the stay. HHJ Horowitz acceded to that application and so she put on a second petition, which was pleaded in what HHJ Horowitz would call more modern terms, i.e. limited to some seven paragraphs. That was for defended trial in December 2012, and Mr Howell's case at that trial was that the proceedings should be stayed for some months, maybe six, maybe more, on his conviction that the marriage had not irretrievably broken down.

    4. The judge decided that that was not a sensible course for him to embrace, and accordingly he got down to trying the second conduct petition. He heard both parties give evidence. On one point he preferred the wife's evidence to the husband. Mr Howell says he was wrong to do that, but the assessment of their oral evidence was essentially a matter for the trial judge. The conclusion in paragraphs 21 and 22 is that the marriage had irretrievably broken down. The judge lamented the position in which he found himself. He pointed out in these words that:

    "...Mr Howell, who is a very intelligent and clear-thinking man, has been given abundant opportunity, it seems to me, to take one or two remedies. The first and direct is the civilised one of a two year separation and consent divorce and the other, as is commonly done, is to say, 'I agree in principle but please remove those objectionable passages.' He has done neither. He has persisted in flogging - there is, really, no other word for it -- a defended lifeless procedure. It seems to me that these are up to and beyond the frontier of the reasonable."

    Turning to the allegations, he went through them one and one, such as were relied upon, since he had rejected some averments as being superfluous or unnecessarily aggressive in language. But having so conducted a review of the allegations, he concluded that the wife had proved her case.

    5. Mr Howell's appeal against that is manifestly very difficult. He says that really if you analyse the paragraphs 2, 3, 5 and part of 7, there was nothing in them; alternatively, they were not sufficiently supported by the wife's evidence. Well, that is to miss the point. With the encouragement of the judge, the wife's case was being put at a minimum to satisfy the legal test, to save the husband from assertions that might appear gratuitous or unkind.

    6. Mr Howell has a second application, which is directed only to the non-molestation order made by the judge at the end of the trial. The application was advanced, it was not the court of its own motion, there was a statement in support and the judge said:

    "...I have heard evidence, to establish space between this husband and wife, so that she is not at the receiving end of phone calls in which she does not wish to take part and in which she feels pressure is being brought to bear. That, in short, is sufficient to constitute harassment, which is a word that has been judicially defined in the widest terms. I am satisfied on the evidence I have heard that a carefully expressed restraint against harassment, save for the purpose of making arrangements for Adam and so on, is justified on the evidence before me and will be made for 12 months unless, of course, it is discharged or renewed within that period. I am not going to attach any penal notice to that order."

    That in my view was entirely a matter for the judge. He heard the evidence. He felt that it was necessary. It is hardly conceivable that this court would interfere.

    7. Finally Mr Howell objects to the costs order. The application was advanced by counsel for the wife. He sought summary assessment in the sum of some £23,000, which I suppose reflects the fact that the wife had instructed a renowned specialist firm here in London. The judge concluded in counsel's favour. He said:

    "The conduct of this case has not been within the parameters of the ordinary and reasonable at a time when, I think, the divorce rate is something like 50,000 divorces a year. I am afraid I have to mark it with costs. I have to have regard to the indemnity basis. It is five-past 5, and ~I have not quite finished today's business, and I will assess those costs in the sum of £20,000. That is inclusive of VAT..."

    It is exceptionally difficult to obtain permission to appeal a costs order. That is essentially a matter for the assessment of the trial judge. It is again inconceivable that this court would interfere with such an assessment.

    8. Mr Howell, as the judge remarked, is a man of considerable intelligence and he has put together an impeccable bundle to enable these applications to be considered. He has advanced his case, albeit persistently, with courtesy, and I thank him for that. But sad as it seems to me to be, this couple have spent far more energy and wasted far more money than was ever necessary. Had there been a more realistic assessment of where they stood and how to bring their failed marriage to an end, the case would not have come twice to this court.

    9. So the present applications, which are 2013/0019 and 2013/0020, are refused. There is an application, which is 2013/0421, which was issued on 19 February but which is not before me today. That will be listed on a later occasion.

    Order: Applications refused

Judgment, published: 27/03/2013


Published: 27/03/2013


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