Family Law Hub

Taylor v Taylor [2013] EWCA Civ 1241

Financial provision case where the W complained that a second charge on the FMH in favour of the H's mother was not effective, and that throughout the proceedings the H had failed to make adequate disclosures and had concealed assets. The W was applying for permission to appeal various orders but her application was refused on the basis that there was no reasonable prospect of success.

  • Case No: B6/2012/2363 & B6/2012/2669

    Neutral Citation Number: [2013] EWCA Civ 1241

    IN THE COURT OF APPEAL (CIVIL DIVISION)

    ON APPEAL FROM THE PRINCIPAL REGISTRY

    FAMILY DIVISION

    Mr JUSTICE HOLMAN AND

    HIS HONOUR JUDGE O'DWYER

    Royal Courts of Justice

    Strand, London, WC2A 2LL

    Date: Monday 25th March 2013

    Before:

    LORD JUSTICE LLOYD

    and

    LADY JUSTICE BLACK

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

    Between:

    TAYLOR (Appellant)

    - and -

    TAYLOR (Respondent)

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

    (DAR Transcript of

    WordWave International Limited

    A Merrill Communications Company

    165 Fleet Street, London EC4A 2DY

    Tel No: 020 7404 1400 Fax No: 020 7831 8838

    Official Shorthand Writers to the Court)

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

    Mr Oriel Hinds (instructed by Direct Access) appeared on behalf of the Appellant.

    The Respondent did not appear and was not represented.

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

    Judgment

    ( As Approved )

    Crown Copyright (c) Lord Justice Lloyd:

    1. The court has before it two applications for permission to appeal. One is against an order of Holman J made on 2 October 2012 and the other is against an order of HHJ O'Dwyer made on 24 April 2012, though probably not sealed, or at any rate not sealed in its final form, until 14 June 2012.

    2. The appellant, who commenced the appeal acting in person, but has the advantage very recently and today of representation by counsel Mr Oriel Hinds on a Direct Access basis, is Mrs Albina Taylor, and the proceedings in which the appeals arise are financial relief proceedings between herself and the respondent, her former husband Mr Robert Taylor, the parties having married in 2006.

    3. By that date they already had their one child, a daughter A, born in November 2005. The parties met in Dubai; they lived together for some time there, and later at a property in the name of the respondent in England. They separated in 2009; the respondent presented a divorce petition; the appellant said that she had wanted to cross petition but failed to do so in time. Nothing turns on that.

    4. The issues relevant to these appeals relate to the question of financial provision. At its heart the appellant's case is that the respondent failed to make adequate disclosure, and indeed positive concealment of assets. She also took issue with a charge, a second charge, effected by the respondent over the former matrimonial home in favour of his mother, whom I will call the intervener, apparently to secure a liability to her on his part of £500,000.

    5. At a certain stage in the ancillary relief proceedings an order was made, at a time when I think both parties and the intervener were all represented by counsel, that a preliminary issue should be determined as between the three parties as to whether this second charge over the former matrimonial home was valid and effective and secured the debt which it appeared to secure. The hearing started before District Judge Bassett-Cross at the Principal Registry of the Family Division on 21 March 2011, and that had been envisaged as the hearing first of the preliminary issue and then of all the remaining questions relevant to the issue of financial provision. The hearing before the District Judge started with an application by the wife, now the appellant, for an adjournment, for time needed to investigate what was said to be inadequate disclosure by the respondent and by the intervener. The District Judge rejected that, and then he got on with the determination of the preliminary issue. On that preliminary hearing the husband, the wife and the intervener all gave evidence, and at the end of the two days of hearing, on 22 March, the District Judge gave judgment holding that the charge was validly executed and that it did secure a real debt of £500,000 owed by the respondent to his mother.

    6. The case was then due to proceed to a decision on the other aspects of the ancillary relief applications as from the next day, but most unfortunately the appellant was taken ill on the next day and the matter had to be adjourned. The District Judge's decision of the preliminary issues is recorded in an order of his dated 23 March 2011 and sealed two days later, dismissing the wife's application to set aside the charge and adjourning the case for directions and for a further hearing.

    7. The effective hearing of the ancillary relief claims came on eventually before HHJ O'Dwyer, District Judge Bassett-Cross having in the meantime retired. It was heard over several days in September and October 2011. Ultimately judgment was given in April 2012 after delays caused by, among other things, illness on the part of the judge himself. The parties were both represented by counsel at the outset of the hearing; the wife was in person from late in September 2011.

    8. So we have two appeals before us: appeal 2363 is brought against HHJ O'Dwyer's order, the appellant's notice being dated 3 July 2012. That is almost certainly out of time, but that would not be a problem if the appeal has substance. The grounds of appeal are primarily that the order and the trial process were vitiated by the respondent's concealment of assets; otherwise the challenge is to the weight given by the judge to various relevant factors. The other appeal, 2669, is against Holman J's order of 2 October 2012. That was an order on the wife's application for permission to appeal against District Judge Bassett-Cross's order of 23 March 2011, whereby, as I say, he dismissed the application to set aside the charge.

    9. Holman J refused permission to appeal and made a consequential order for costs. I should say that at that hearing both the husband and the intervener were represented by counsel, but the wife was acting in person. It is not open to the appellant to challenge that refusal of permission to appeal to the High Court from the order of the District Judge, because of Section 54(4) of the Access to Justice Act 1999. That application therefore must be dismissed without more. In theory it would be open to the appellant to challenge the costs order, but, since that is entirely dependent on the substantive order, there would be no arguable basis for challenging that aspect of the order.

    10. Thus the case had to proceed, and now has to proceed, on the footing that the District Judge's order was valid and effective and is beyond challenge. I therefore return to appeal 2363 and to HHJ O'Dwyer's order. The effect of the intervener's charge and a prior mortgage was seen as being that there was only negligible equity in the former matrimonial home. There were a number of assets, but they were regarded as being of rather limited or speculative value. The judge had great difficulty in assessing the husband's likely income. The husband is said to be financially astute and has been a successful trader, but the judge treated him as having inadequate current income to make any substantial or indeed adequate provision for the wife. The order that the judge made was for payments of £600 per calendar month subject to review and with the husband liable to pay the school fees for the daughter at the school she then attended.

    11. The appellant says that the court did not have available to it adequate evidence as to the husband's financial resources or as to his property or as to his financial dealings in the previous years. She says that he was concealing the position and that the court should either have refused to decide the question pending full disclosure or should have inferred that his assets were greater than he had disclosed. A significant part of the complaint is that the charge on the former matrimonial home improperly directed what was, if anything, a business liability away from a limited liability partnership which was used by the husband as part of his trading to the husband and the former matrimonial home. That point is not open to the appellant, as I say, because of District Judge Bassett-Cross's order.

    12. The appellant also contends that the judge did not properly consider Section 25 of the Matrimonial Causes Act 1973 because of his failure to provide future pension benefits for the appellant or for rehousing herself and her daughter. However, it is clear, as it seems to me, that the judge did direct himself properly on these points and was constrained ultimately by the lack of perceived resources of the respondent on his evidence. The fact is, as it seems to me, that the judge was entitled and bound to proceed on the evidence before him and that there would have been no great advantage to be achieved by refusing to decide the case at the conclusion of the evidence and to direct the respondent to provide further disclosure.

    13. I should say, interposing, that the applications which are now before us came first before Thorpe LJ on 19 December 2012. He adjourned the application and directed that it come on for a hearing, which is ultimately this hearing. He directed that the appellant should lodge in 28 days a sworn statement in respect of each and every fraud that she alleged the respondent to have practised on her and on the court, and also directed the respondent file a sworn statement in response no later than seven days before the hearing. In support of her application for permission to appeal the appellant has put in a document dated 22 January 2013 in the form of a witness statement alleging material non-disclosure and fraud by the respondent and for that matter by his mother. The husband's response is dated 14 March 2013. It is to be noted that the wife sought further disclosure at first instance on a number of occasions, notably on 7 April 2011 at a case management hearing heard by District Judge Bassett-Cross. That application was refused; the wife's appeal to the High Court was dismissed by Peter Jackson J.

    14. Another application for further disclosure was refused by HHJ O'Dwyer in the summer of 2011 and another again in October 2011 in the course of the hearing, but it appears that, notwithstanding the initial refusal of that application, the judge did order disclosure by the respondent of bank statements in respect of an account that he maintained with HSBC, which were duly disclosed.

    15. The appellant, before she had the benefit of Mr Hinds' representation, sought an adjournment of this hearing because she had too little notice, she said, or would have too little notice, of the respondent's position. That application was refused because, pursuant to Thorpe LJ's order, that period of notice was intrinsic in the procedural timetable. In any event, the husband's statement is, as it turns out, relatively short, and, so far as it goes, not difficult to deal with.

    16. I am not satisfied that there is any arguable substance in the allegations of non-disclosure or fraud made by the appellant. They seem to me to be largely attempts to re-argue the points already made at first instance, but for the most part unsuccessfully.

    17. As the matter was presented in the wife's statement, she complained about a number of issues of double counting on the part of her mother-in-law as regards the status of her investments, and she also complained about inadequate disclosure by the husband of various properties and interests in various funds. All of these, so far as I can tell, were matters in respect of which she may have been perfectly entitled to criticise the respondent at one stage but on which ultimately, at any rate something towards the true position became clear by the time of, or in the course of, the hearing before HHJ O'Dwyer.

    18. A good deal of the appellant's complaint does ultimately come down to her complaint as to the status and apparent effectiveness of the £500,000 second charge. That I can perfectly understand, because clearly if the matrimonial home were not subject to that £500,000 liability there would be a great deal more to divide between the husband and the wife, but that, as I have said, is not open to the wife as an issue at the present stage.

    19. As Mr Hinds has put the case to us, he has focussed principally on three matters above all. One is the fact that the husband disclosed only at a very late stage of the proceedings before HHJ O'Dwyer the fact that he had an interest in a property in Abu Dhabi in which originally he said he had no more than a half share, but ultimately apparently he accepted he was the sole owner. That is a matter which is dealt with by HHJ O'Dwyer in the course of his judgment. Secondly, he focuses on the fact that there was no proper documentation and no supporting evidence before the judge of the two rather striking features of what the respondent said his trading position had been. In 2007 he had, he said, an exceptionally good trading year, making a profit of £1.4 million, but in the following year, 2008, he said, and apparently said it for the first time at trial, that he had lost £700,000. Neither of those was verified, it is said, by trading accounts or in the documentation, and in those circumstances Mr Hinds submitted that the judge really should not have accepted that he had adequate disclosure on which to come to any satisfactory conclusion as to the rights and the merits of the position as between the parties.

    20. Furthermore, he said that although a forensic accountant had been instructed and his report was before the court on behalf of the wife, he had proceeded on a misapprehension as to the position as regards a company in which the respondent was interested, treating it as something which was beneficially owned, in effect, by the intervener.

    21. I can well see that this was a case in which the state of the evidence was unsatisfactory even by the conclusion of the hearing before HHJ O'Dwyer, but it seems to me that Mr Hinds' contention, which is that at the conclusion of the evidence or at the conclusion of the submissions HHJ O'Dwyer should have thrown up his hands and said there had not yet been adequate disclosure on the basis of which he could decide this case, and he should then either have made further orders for disclosure against the respondent, or should have drawn inferences adverse to the respondent, is not a proposition on which there is any reasonable prospect of success in an appeal. The judge had a difficult task in an unsatisfactory position and, for all that he paid compliments to Mrs Taylor as to her grasp of the case and her conduct of the case once she acted in person, it must have made it all the more difficult that he had to cope with the conduct of this trial, in which Mrs Taylor did not have the benefit of representation.

    22. I have referred to the history of applications for disclosure, some of them before HHJ O'Dwyer himself. It seems to me that he did the best that he could reasonably be expected to have done in that respect, and it is certainly not a viable ground for appeal to argue that at the end of the day he should have refused to decide the case, as Mr Hinds submits.

    23. I would therefore refuse permission to appeal against HHJ O'Dwyer's order as not disclosing any reasonable prospect of success, and likewise I refuse permission against Holman J's order as being something which the court has no jurisdiction to consider as regards refusal of permission to appeal and no good reason to consider as regards any other aspects of the order.

    24. I would be minded to extend time for these appeals which have been brought undoubtedly sincerely and without excessive delay, but while extending time I would refuse permission to appeal.

    Lady Justice Black:

    25. I would also refuse permission in relation to both proposed appeals.

    Order: Applications refused

Judgment, published: 16/10/2013

Topics


Published: 16/10/2013

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.

Bookmark this item