25th January 2017
Judgment considering procedural irregularities in interim and final hearings and the procedural protection under section 5(2) of the Debtors Act 1869
Facts:
- The parties had been engaged in financial remedies proceedings in which the key issue had been the level of support that H could expect from his family. At the start of the marriage, H and W had lived a ‘grace and favour’ existence with H’s family in Pakistan, but by 2011 there was no evidence of any financial support from his family, save for his mother allowing him to use a flat in London.
- H returned to Pakistan in 2011, and has subsequently not attended any hearings in England and Wales, following the dismissal of his appeal against an interim periodical payments order in July that year.
- A number of orders on judgment summonses were made in relation to the interim periodical payments. There followed a final hearing before HHJ Brasse on 27 March 2015. The Judge ordered H to pay W £3,220,000 by 1 May 2015, arrears of £530,000 by the same date, and future periodical payments of £10,000 p.c.m.
- H appealed against the judgment summonses, the interim order and against the final order made, on the ground that he didn’t have the ability to make the payments ordered including, if appropriate, by reliance on the bounty of an outsider.
- The Court of Appeal focused on the final hearing, as if the findings of fact of the final hearing had to be set aside, H could then argue on fully contested evidence for different findings of fact. The findings at the interim maintenance hearing were expressly provisional, and subject to review at the final hearing.
Held:
- There were such procedural irregularities in how H’s absence was handled that the order was unfair to the extent that it should be set aside. Elementary procedural protections that H had a right to expect would be observed were not:
- Given the nature of H’s attendance and documentation that he had filed with the court, it would have been appropriate to consider how his evidence would be received. These were not considered.
- If there had been directions to accept H’s continuing absence, they should have included a warning that inferences of fact might be drawn from his absence. This would have allowed the court to act proportionately and to anticipate deliberate absence.
- W filed her section 25 statement 8 days before the final hearing and she did not serve it on H. She was never given leave to rely on it out of time.
- A bundle existed at the final hearing, but W refused to disclose to H and no other copy exists on the court file. There is no way to establish what was in the bundle.
- The judge made no reference to H’s documents. There should have been an analysis of whether H’s documents failed to comply with the court orders for financial disclosure. There was not.
- The court has an obligation to satisfy itself about the statutory factors which are relevant. At no point did the judge ask about the existence and content of basic evidential materials.