Family Law Hub

Semaan v Taktouk [2013] EWCA Civ 378

Challenge against the determination that the FMH was in joint names of the W and H and not owned by the company, and against an order that the W be paid a lump sum in anticipation of the FMH being sold. Application adjourned.

  • Case No: B6/2013/0654,

    B6/2013/0697

    Neutral Citation Number: [2013] EWCA Civ 378

    IN THE COURT OF APPEAL (CIVIL DIVISION)

    ON APPEAL FROM THE PRINCIPAL REGISTRY OF THE FAMILY DIVISION

    (MR JONATHAN COHEN QC)

    Royal Courts of Justice

    Strand, London, WC2A 2LL

    Wednesday, 27th March 2013

    Before:

    LORD JUSTICE McFARLANE

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    SEMAAN (Respondent)

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    TAKTOUK (Appellant)

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    (DAR Transcript of

    WordWave International Limited

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    Official Shorthand Writers to the Court)

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    Mr S Lyon (instructed by Segans Blount Petre Solicitors) appeared on behalf of the Appellant.

    The Respondent did not appear and was not represented.

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    Judgment

    (As Approved)

    Crown Copyright(c)Lord Justice McFarlane:

    1. The court is considering two separate applications for permission to appeal, the first dated 6 March 2013 with respect to a determination made by Mr Jonathan Cohen QC sitting as a Deputy High Court Judge on 13 February, and the second dated 14 March with respect to final orders in ancillary relief proceedings following divorce made by Coleridge J on 21 February. The applications both come from Mr Taktouk, who is the husband in those proceedings. The proceedings were comprehensively contested between the parties, and in short terms the primary focus if not the entire focus of the substantial hearing before Mr Cohen in February was to determine the ownership of the former matrimonial home, Flat 1, 6 Upper Belgrave Street in London, which is a property worth in the region of £6 million. Mr Cohen determined that issue and found that the property was in the joint names of the husband and wife and not owned by a company as asserted by the husband or, as was also a possibility, owned in some manner by the husband's father. On the basis of that finding, the ancillary relief proceedings as a whole then took place the following week, and at the conclusion of that hearing Coleridge J ordered the payment to the wife by the husband of a lump sum of £1.4 million on the basis that either if the property sold at the top of the price bracket that had been put upon it by valuers then the lump sum would be released from the sale and the wife could be satisfied by that means, alternatively if the property were to be sold for a lower figure, the judge's order contemplated the husband making up the balance. The judge also ordered the payment of periodical payments for the benefit of the wife and the two children.

    2. On the basis of the disclosure made by the husband and on the basis of his case before the judge, that financial order represented not only the entirety of the net worth of the couple insofar as his case supported it but actually required the husband, if the property was sold for lower than the top rate, putting his hand in his pocket to make up the difference, and on his case his pocket was empty. He therefore seeks to challenge first of all Mr Cohen's determination and secondly the order made by Coleridge J.

    3. The determination made by Coleridge J was one which rejected the husband's case. In the compass of this short judgment it is not necessary for me to go into details, but at the core of the judge's conclusion was his view as to the husband's credibility and in particular his view about a document which sat at bundle 4, page 319 of the bundle, which purported to be a financial statement drawn up by the husband at a time that he was seeking financial facilities from the Abu Dhabi National Bank. That document sets out some detail as to the resources of the husband, and estimated his overall asset position, including the flat, at £11.2 million. The husband denied that that document was any representation of his finances, but the judge did not believe him and the judge concluded that the husband's resources were therefore closer to the figures mentioned in that document than to the case being put forward by the husband.

    4. The judge therefore, looking at the overall merits of the matter, applying the well-known formula in the Matrimonial Causes Act, for reasons that are set out in detail in the judgment, considered that it was justified for the court to order the entirety of what was readily identifiable, namely the equity in the flat, to go to the wife, together with, if that fell short, requiring the husband to make an additional payment. The judge was also satisfied that the husband's father sat as a financial support behind the husband. The father is a man of very substantial wealth and who hitherto had supported the husband and indeed the wife in happier times. At the time of the hearing he was saying that he was not going to support the husband, but Coleridge J concluded that sooner rather than later the husband would receive further financial support from his father. Insofar as Mr Cohen's determination is concerned, although it has been submitted to me this morning that this was a complicated case, which it was in the sense of a very, very large number of documents being involved, at bottom Mr Cohen's determination was grounded upon his assessment of the credibility of the witnesses, and he concluded as I have indicated that the property was jointly owned by the husband and wife.

    5. The hearing this morning has taken the course of being primarily an application for an adjournment. The case came before me on paper last week, and I granted a stay of the order, which in particular put on hold the very active steps that the wife's legal team are taking to have the property sold. The wife's lawyers indicated to the court that time was of the essence. I therefore listed this case for hearing on Monday of this week. However, the wife's legal team, and it follows the husband as well, were unable to furnish the court with any note or transcript of the judgment of Coleridge J in time for Monday morning. I therefore adjourned the listing to this morning, Wednesday, 27 March. I now have a full, albeit unapproved, transcript of the judgments of Coleridge J and also of Mr Cohen. At yesterday lunchtime the court was contacted by the husband, who indicated that he was unwell, and that he was suffering a recurrence of symptoms of malaria, from which he has apparently suffered in the past. I asked for a medical certificate to be provided, and one was indeed furnished from a GP, Dr Ruane, dated 26 March. The certificate indicated that the husband had attended the surgery that day and that he was "febrile" and the doctor had advised him to stay at home.

    6. On the basis of that medical note, I directed that the case be taken out of the list. However, during the afternoon solicitors for the wife indicated that contracts were about to be exchanged on the property, and they suggested that the husband had a history of suggesting ill health when, they say, it might suit his case to do so, and that the children were currently staying with the husband, and that they had been in touch with the wife only the previous evening and had not indicated that the husband was unwell. On the contrary, the wife understood the husband had taken the children out to dinner on the night of 25 March. I therefore indicated that the case should remain in the list this morning, so that I could consider the matter in detail and hear any submissions that were able to be made.

    7. Overnight, two further medical certificates have been supplied, one from Dr Ruane again, who indicated, having been told on the telephone that the court was intending to press ahead with the case, that his advice was that his client should not attend court, and again the doctor reports that the husband is "febrile and hypertensive, and is under investigation for malaria and on treatment for tonsillitis". The doctor's view was that it is thoroughly inappropriate for this gentleman to attend court. There is then a further handwritten document from an organisation called Global Health Medical Services which indicates that a Dr Ismail attended the husband shortly before midnight last night, and that he was found to be suffering from "hypertension and acute pharyngeal". From that I take it that he had a high temperature and a bad throat. Various pharmaceuticals were prescribed, and he was advised to go and see his GP again this morning. And in an email to the court sent at 9.45 this morning, the husband says that his solicitor is coming to court this morning, and then this:

    "I am unable to attend due to illness and now at Chelsea and Westminster Hospital."

    8. Upon coming into court this morning, I have had the pleasure of encountering Mr Stephen Lyon, counsel, who has been instructed at very short notice by solicitors, Segens Blount Petre, who have acted for the husband in the past and in particular continue to act (as does Mr Lyon) for him in ongoing Children Act proceedings about which I know nothing. Mr Lyon's instructions are limited to pressing an application for an adjournment. He does so without having had the benefit of seeing Coleridge J's judgment and obviously not having attended either of the two hearings to which I have made reference, because Mr Taktouk appeared in person on both hearings before Mr Cohen and Coleridge J. But Mr Lyon does submit that this is a complicated case, and there may be merit in the husband's position on appeal. He argues that no detriment will flow to the wife if the sale is postponed, and that he, on behalf of the husband, is concerned to understand that exchange of contracts is imminent, in circumstances where the wife's legal team apparently have declined to tell the husband who the purchaser is.

    9. I have shared with Mr Lyon a short clip of documents that the wife's solicitors have sent to the court, indicating that a sale is imminent at a price stated in those documents, which I think, although I have handed them to Mr Lyon, is £5,475,000; and a suggestion is that Mary Taktouk, who is apparently the husband's mother, may be either the, or one of the, potential purchaser(s) at that price. Mr Lyon indicates this is totally unsatisfactory, and that the sale should not be proceeding on that basis in any event, whatever the merits of the appeal might be. He therefore urges me to adjourn this permission application for 28 days, on the basis that the husband's father has now formally undertaken to put Segens Blount Petre in sufficient funds for them to represent the husband on his permission application, and no doubt if permission is granted, on his appeal. That is the state of play.

    10. I turn to the merits of the appeal itself, and I should record in this judgment the view that I had very clearly formed on reading the papers, which is that neither of the appeals as they are at present drawn has any merit. Under Rule 52.3(4A) the Court of Appeal, if it refuses permission to appeal without a hearing, may state that it considers the application to be "totally without merit". The consequence of a conclusion under that rule is to deny any litigant the opportunity for a further oral hearing. Here, I am sitting and conducting an oral hearing, and am doing so because the applicant, the husband, at present is in person, and there was a need to afford an urgent consideration with the ability of the husband to engage in the process. Had I been considering the papers in my room, as is normal where parties are represented, I would have concluded that the appeal as presently drawn is totally without merit.

    11. It is not necessary for me to go into detail, but I summarise the grounds in relation to the two proposed appeals. So far as Mr Cohen's order is concerned, the grounds are as follows. First, that Mr Cohen had no jurisdiction to make the determination that he made, because the Land Registry shows that the property is registered in the company's name. Secondly, that the judge should have permitted additional evidence by way of expert handwriting or document evidence to be adduced. Thirdly, that the judge inappropriately relied upon a text message on a mobile phone. Fourthly, that additional evidence was required from the company, and that was not forthcoming. And the fifth ground relates to the costs. In my view, none of those four grounds engage with the reality of the determination made by Mr Cohen. In particular, he did plainly have jurisdiction to come to the conclusion that he came to, the Land Registry entry simply being evidence of what the Land Registry had been told and what they recorded. And the judge's decision to press on without expert evidence, to rely upon the text message, and not adjourn for further evidence from the company are all plainly within his discretion. At the end, the case was decided upon the judge's view of credibility (of the husband in particular), and the grounds of appeal do nothing even to engage with the case that he would have to meet, were he to seek to challenge that finding. So "totally without merit", in my view, properly describes the first appeal.

    12. The second appeal states that there are seven grounds. First, that Article 6 rights were breached. Secondly, that there was no updating disclosure from the parties. Thirdly, that it was plainly wrong to give the entire assets of the marriage to the wife. Fourthly, that the order for periodical payments was inconsistent with the findings of the judge in his judgment of the preliminary issue hearing. Fifthly, that the husband had not worked for the father for a considerable period of time. Sixthly, if the property does not achieve an equity of £1.4 million, the husband is unable to meet the order. And seventhly, that the judge seems to have been mistaken as to where the husband was living, despite clear evidence.

    13. Those seven grounds in their various ways do no more than state the husband's case as it was before the judge. The judge did not believe him; the judge concluded that he had more financial resources available to him than he was disclosing. Again, in my view, these grounds of appeal do not engage with the overall thrust of the judgment, and do not acknowledge the very wide discretion that a judge conducting an ancillary relief hearing has in deciding how to deploy the realisable assets in a way which meets the requirements of the statute. Insofar as there was no updating disclosure from either party, again on my reading of the papers that would seem to be an irrelevant potential challenge. The wife, on the judge's findings, had nothing to disclosure. Her only source of financial support other than that coming from the husband came from her current partner, and the judge goes into that as a potential source of financial support for her in the course of his judgment, and makes findings which would seem to me to be entirely open to him on the basis of the evidence as summarised. It is difficult to see what would have been disclosed by the wife over and above that which the judge found was the case when it was tried before him. Similarly, the judge did find there had not been proper disclosure by the husband, but that is obviously not part of the grounds of appeal. For those various reasons, shortly put by me, I again consider that the potential appeal against the substantive order is "totally without merit".

    14. How do I therefore, with that perspective on the case, approach the application for an adjournment today? It seems to me that Mr Lyon, if he is to be instructed, and the solicitors, if they are to be instructed, should have the facility of considering the papers on behalf of the husband to see whether, contrary to the view I have formed, there is a ground or grounds of appeal upon which consideration could be given for permission being granted. I therefore, given the scale of the orders that are being made, consider that the husband is entitled to have lawyers look at the case for him on that basis, notwithstanding the view I have formed of the grounds of appeal that he as a layman has put before the court thus far. But I do not however consider that what I have described is of sufficient merit to hold up the progress of the sale any further. Had Mr Lyon not attended this morning, I would have dismissed both applications for permission to appeal, notwithstanding that the husband is unable to attend (as I accept at face value he is on the basis of the medical statements that have been put in) because of the view I have formed as to the merits of his grounds of appeal.

    15. Therefore, it seems to me that the fair and proper course is to adjourn these two applications for permission to appeal for a period of 14 days, to permit solicitors and counsel instructed by the husband to put in revised or amended grounds of appeal so if they so wish. But the sale is not to be held up by the Court of Appeal process, and I will maintain a stay on the order made by Coleridge J, save insofar as it deals with the sale of the property. I will hear Mr Lyon in a minute on this but what I propose to do is to stay the order, save for paragraph 1 of the order. So the effect will be that paragraphs 2 to 8 are stayed, but paragraph 1 is not stayed. If there are issues in relation to the conduct of the sale, those are matters for the first instance court, and if possible if he is available, Coleridge J. I anticipate, simply through no knowledge but through first principles, that as soon as knowledge of my order today is communicated, the wife will seek to achieve the sale, and seek to attend before Coleridge J, so Mr Lyon undoubtedly will already have in mind making contact with the judge's clerk and with the Clerk of the Rules in the Family Division, to ensure that any approach to the judge is made, if possible, on notice to the husband and his legal advisors. But that, in a rather long-winded way, is my analysis of the situation, and the order that I make.

    16. So permission to appeal in both cases is adjourned for 14 days, so it will be relisted on 10 April. Given the view I have formed on the merits, it should come back before a different judge. And the order of Coleridge J of 21 February, paragraphs 2 to 8 are stayed, but paragraph 1 is not stayed. So if you are putting in revised grounds of appeal, they need to be filed by 4.00 p.m. on Monday, 8 April. I will ask for an expedited transcript of the judgment I have just given.

    Order: Application adjourned


Judgment, published: 22/04/2013

Topics

See also

  • Challenge against the determination that the FMH was in joint names of the W and H and not owned by the company, and against an order that the W be paid a lump sum in anticipation of the FMH being sold. Application adjourned. Case note, 17/05/2013, members only

Published: 22/04/2013

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