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MET HAT ( No 2) [2014] EWHC 717 (Fam)

Further judgment in proceedings under Part III of Matrimonial Family and Proceedings Act 1984 concerning applications for maintenance pending suit and a legal services payment order.

This judgment by Mostyn J relates to the question of maintenance pending suit and legal services provision, following an earlier hearing dealing with "interim interim" financial provision (reported at MET v HAT [2013] EWHC 4247.

Since the earlier hearing the wife had changed solicitors and both parties had filed evidence, including Forms E. In addition the wife had obtained evidence from an expert contradicting the single joint expert's view as to the validity of the talaqs pronounced by the husband. The SJE had subsequently agreed with the wife's expert and, although the husband had permission to obtain evidence from a third expert, Mostyn J was prepared to reverse his previous view as to the merits of the wife's case for the grant of leave under Part III, which he now considered to be "strong".

In response to the MPS and legal services payment order applications, the husband raised an allegation that the wife had recklessly dissipated funds, which should be taken into account. Mostyn J found that it would not in general be appropriate to take such matters into account, even if the arguments at final hearing would "appear strong or even very strong".

Mostyn J considered evidence that had been produced by the wife which suggested that the husband was seriously wealthy and was satisfied that he should make robust assumptions as to the husband's ability to pay. MPS was ordered in accordance with the wife's reconsidered budget of £33,166 pcm along with a legal services allowance of £11,000 pcm until 1 February 2015 or the FDR (whichever is the earlier). Having been informed that the costs incurred by the wife to her previous solicitors were in dispute, His Lordship also stayed the husband's obligation (imposed at the previous hearing) to pay £50,000 towards those costs pending resolution of the dispute and any detailed assessment.

Summary by Stephen Jarmain, barrister, 1 Garden Court Chambers
_________________________ 

IN THE HIGH COURT OF JUSTICE FAMILY DIVISION

Nos. FD13C04419/FD14F00035

[2014] EWHC 717 (Fam)
Royal Courts of Justice
Tuesday, 25th February 2014

Before:

MR. JUSTICE MOSTYN

B E T W E E N
:

MET 
Applicant

-  and  -

HAT 
Respondent
 
__________

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__________


MR. N. DYER QC (instructed by Sears Tooth) appeared on behalf of the Applicant.

MR. N. CUSWORTH QC and MR. J. WARSHAW (instructed by The International Family Law Group LLP) appeared on behalf of the Respondent.

__________

The Judge hereby gives leave for this judgment to be reported in this anonymised form. The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them may be identified by name or location.  It should be reported as MET v HAT (No.2).

 

J U D G M E N T
(As approved by the Judge)
MR. JUSTICE MOSTYN:

1 On 16th December 2013, I gave a judgment which dealt with the question of interim maintenance from that date until today, Tuesday 25th February 2014.  Any reader of this judgment which I am giving ex tempore should refer to that earlier judgment of mine for the relevant background.

2 Since 16th December 2013, a number of things have happened.  First, the wife has again changed solicitors.  On 6th February 2014, she discharged Vardags and engaged Mr. Tooth.  Second, the wife has filed a Form E, a further witness statement and a witness statement has been filed on her behalf by Mr. Tooth.  The husband has filed a lengthy witness statement and a Form E.  Third, there has been a significant development in the expert evidence concerning the divorce pronounced by the husband in his home country.  I shall deal with that aspect first.

3 In my earlier judgment, I explained in paras.7-10 how the husband had initially pronounced a single talaq before a judge in his home country and then later, but within the cooling off period known as idda, he pronounced a triple talaq on 29th March 2012.  The single joint expert had opined that this triple talaq was the effective divorce and was valid.  He expressed the view that it was, prima facie, a non-proceedings divorce entitled to recognition under English law with the consequence that the wife would not, for the reasons I set out in my previous judgment, be able to apply in this jurisdiction for relief under Part III of the Matrimonial and Family Proceedings Act 1984.

4 I formed the view that there existed a strong case that there was here a valid non-proceedings divorce entitled to be recognised in this jurisdiction and that therefore I should be very cautious indeed in making any interim award to the wife in her own right whether for maintenance pending suit or for a legal services payment order.  In the event, I made only a award for child support in the sum of £20,000 per month and I made an order of £50,000 as a contribution to the historic costs that the wife had incurred with her previous solicitors, Vardags.

5 It now appears, by virtue of an opinion obtained by another expert instructed by the wife, that the single joint expert unaccountably overlooked a provision of  law in the husband's home country which says that, first, a triple talaq cannot be pronounced during the period of idda and, secondly, in any event, a triple talaq when pronounced only takes effect as a single talaq.  Therefore, the wife's expert is of the view that the triple talaq here was void and of no effect.  His opinion is that the single talaq is the effective divorce and that this was a proceedings divorce entitled to recognition as such in this jurisdiction.  The single joint expert now agrees with this opinion.

6 Mr. Justice Moylan has given the husband permission to obtain a yet further opinion to verify the present unanimity between the single joint expert and the wife's expert.  It should be noted, however, that even if this new expert says that the triple talaq is valid the husband will still face an obstacle in the form of s.51(3)(b) of the Family Law Act 1986 which requires production of an official document proving the non-proceedings divorce.  Mr. Dyer explains that, notwithstanding repeated requests, no such official document has yet been produced by the husband.

7 If there is to be a dispute about which talaq dissolved this marriage, then the wife's solicitor estimates that a further £60,000 of additional costs will be incurred by her over the next six months.

8 On the basis of the revised expert opinion, I now in turn revise completely my previous view.  I am of the view that there is a strong case that the single talaq pronounced by the husband before the judge in his home country is the effective divorce and that this is a proceedings divorce entitled to recognition as such in this jurisdiction.  Accordingly, the wife, subject to meeting the jurisdictional requirements under s.15 of the Matrimonial and Family Proceedings Act 1984 (where she has a more than merely arguable case, particularly if her claim is confined to maintenance - see s.15(1A) of the 1984 Act), would, in my opinion, in all likelihood, be granted leave under Part III.  The wife has a strong case for the grant of leave under Part III.  Therefore, in my judgment, in sharp contrast to my previous opinion, the wife today has a strong case for a substantive award for maintenance pending suit and a costs allowance, provided that the merits warrant such an award.

9 In February 2012 the wife instructed the first of her solicitors here, and this date marks the commencement of the hostilities in this jurisdiction.  Since February 2012, the wife has instructed six firms of solicitors in all and has spent a small fortune on legal fees.  Prior to and subsequent to February 2012, the wife received vast sums from the husband.  There is a schedule at para.78 of her witness statement dated 26th November 2013.  This shows the receipt by her of £3.125 million between June 2011 and March 2012.  Of this, £1.9 million and £600,000 was received by her in the first 10 days of February 2012.  The £1.9 million was designated to buy the freehold of the London property, but the wife did not use it for that purpose.  She was asked by the husband's solicitor on 18th July 2012 to preserve it in a joint account.  Similarly, that letter asked that the £600,000 be preserved, but the wife exported these monies to Egypt specifically to avoid any preservation measures that the husband might seek from the court.  She bought a villa for £2.3 million  in Cairo.  Since then, political turmoil has engulfed Egypt so that by the time that the wife came to swear her Form E in February 2014 she deposed to the villa being valueless.  But, nonetheless, she has recently transferred it to her uncle for £500,000 to discharge a debt said to be owed by her to him for £400,000, leaving her with a mere £100,000.  That debt was not mentioned in any of her earlier statements and first saw the light of day in her very recently made Form E.  The £600,000 to which I have referred has all gone.  It has largely been spent on costs of which she has paid about £400,000.

10 I am not aware of any case where a reckless dissipation of funds has been taken into account in an adjudication of maintenance pending suit; nor would it be appropriate for this court to break the mould and to do so.  An award for maintenance pending suit is by its very nature a measure designed to hold the ring and to ensure that the claimant can live reasonably pending the final determination of her claims.  A legal services payment order is designed to ensure access to justice and that the parties can litigate on an equal footing.  Both types of award are always adjustable if it transpires at the final hearing that there has been too much or for that matter too little paid.  In my judgment, it is not appropriate for me to take into account a dissipation of money at the maintenance pending suit stage, even if the arguments for taking into account such dissipated monies at the final hearing appear strong or even very strong.

11 Allegations of reckless dissipation are not confined to the wife.  In his witness statement dated 9th February 2014, between paras.132 and 134, the husband speaks of his inheritance from his father.  He says he received £10 million in total.  Of this, he received £6 million in mid-2011.  He sent £2.5 million to London and gives an account of the expenditure of some, but by no means all, of it.  He says he received a further nearly £4 million in January 2011 and he gives an account of the expenditure of some, but by no means all, of it.  Well over £4 million is simply not accounted for at all.  When I asked Mr. Cusworth where it had gone, he blithely said that it had just been spent.

12 The wife says that this inheritance is only a very small part of the husband's overall wealth.  She has produced certain documents which give an indication of the scale of assets available to him.  In April 2009, well before he received the first tranche of his inheritance, a letter was written by the well-known solicitors firm Kennedys to the Home Office in these terms:

"We are the solicitors of the above named and have been so for many years.  We understand our client wishes to visit the UK for a holiday together with his wife and family and his various servants.  We confirm that our client owns two substantial properties in London, W2 where they will all be staying.  We can confirm to you our client is of very substantial means and he will be totally responsible for the well-being of this entire party and for all costs and expenses of their stay whilst they are in the UK as well as for the cost and expense of their return flights home."

 Mr. Cusworth says this is the sort of letter that is written by a rich Arab intending to visit London.  In a way he seeks to finesse away the thrust of that letter, in effect, by saying, "Well, he would say that to the Home Office, wouldn't he?"  I do not accept that.  I believe that this letter is fairly convincing evidence of serious wealth held by the husband well before any of his inheritance had come home to roost.

13 On 16th September 2011, so this is a little after the receipt of the first tranche of the inheritance, a letter was written to the British Embassy in Cairo by LLLBank in these terms:

"HAT is a VIP customer and we can confirm that in the last six months the balance of his account has been not less than £600,000."

That letter is, of course, consistent with him having received the first tranche of his inheritance.  However, on 7th November 2011, a letter was written by the husband to his bankers, BBB Bank, in the Lebanon in these terms:

"I do not mind opening an account in the name of MET (my wife) and transferring an amount of 47 million US dollars (US $47 million) from my account with you into her account.  I take full responsibility for the above."

$47 million is of course a great deal more than the £6 million of his inheritance that the husband had by then received.  Mr. Cusworth's response to a request for an explanation for this document was this:

"It appears to be his signature.  He has no memory of signing the document.  He does not remember signing it.  It is not clear what it means.  It has to be investigated."

I accept that this document has only been recently produced, but I am slightly surprised that the husband is not able to give more coherent instructions to his leading counsel.  This document appears, prima facie, to signify that the resources available to the husband by a very considerable margin exceeded the scale of the inheritance to which he deposed in his witness statement.  So far as the LLL Bank and BBB Bank are concerned, it is also significant that when the husband came to make his Form E he did not exhibit any bank statements referable to his accounts at those banks, notwithstanding the clear requirement that 12 months' worth of bank statements should have been produced.  He said in relation to the BBB Bank this in his Form E, that it had no money in it, and the footnote says:

"This account was closed in June 2013 at the bank's insistence because I no longer have sufficient assets and the required minimum balance to hold an account with such a prestigious bank."

No explanation is given at all as to why no statements for that account were produced.  In relation to his accounts with the LLL Bank , which he does mention and give their account numbers, he says that in relation to the Sterling account it was blocked in October 2013 and closed in November 2013.  He says, "I have requested statements and these are awaited".  I find it very difficult to accept that.  Mr. Dyer has demonstrated convincingly to me that in relation to this bank, as well as in relation to BBB Bank, internet banking is available and so the statements would be capable of being produced at the click of a mouse.

14 The husband and the wife met in a Chinese restaurant on 29th June 2012.  The wife brought certain documents with her that she wished the husband to sign.  One of the documents that he did sign was a confirmation by him to start paying her immediately £60,000 per month.  In his witness statement the husband says that he was emotionally disturbed at the time.  He was missing his children whom the wife was not allowing him to see.  He did not have his reading glasses.  He did not know what he was signing or, if he did, his mind was altered by the circumstances so that he did not fully appreciate what he was putting his signature to.  I tend to agree with Mr. Dyer when he says that this man is no ingénue.  He is a former minister in the  government of his home country,.  I find it very hard to accept that he would have signed a document committing himself to pay £60,000 per month without appreciating the consequences of his signature.

15 The husband says that all his money is now gone (apart from two properties in London and  the capital of his home country) and that he subsists on a monthly stipend of £37,000 granted by his relative, the current ruler.  On an application for maintenance pending suit, the principles to be applied have been set out by me, and have been applied in many later cases, in the case of TL v ML [2006] 1 FLR 1263.  The relevant principles are at para.124 and I do not replicate them here save to set out principle (iv), which is in these terms:

"Where the affidavit or Form E disclosure by the payer is obviously deficient the court should not hesitate to make robust assumptions about his ability to pay.  The court is not confined to the mere say-so of the payer as to the extent of his income or resources … In such a situation the court should err in favour of the payee."

I am satisfied that I should make robust assumptions as to the ability of the husband to pay in this case.  I decline to accept that he is confined to a stipend of £37,000 per month.  It is inconceivable, in my judgment, that he would have run through £10 million in under a year if that was the full extent of his fortune.

16 The wife's budget in her affidavit of November 2013 was absurd.  Mr. Tooth has taken a scythe to it and has come up with a figure for her and the children of £33,166 per month.  In my judgment, this is a reasonable figure and I order the husband to pay that to the wife in advance with effect from 1st March 2014.  I have no doubts at this stage, based on the material which I have read and laying some considerable emphasis on the documents recently produced by the wife, as to his ability to pay these sums.

17 Mr. Tooth has estimated the wife's costs up to the FDR at £220,000.  He assumes that it will take 11 months to reach that event and therefore he seeks for the wife a monthly costs allowance of £20,000 to pursue the financial remedy claim.  Mr. Dyer accepts that the £100,000 surplus of the transfer of the  Cairo property to the wife's uncle should be applied to these costs so the figure is £120,000 to be paid over 11 months, which is £10,909, which I round up to £11,000 per month.  This will be paid in advance starting on 1st March 2014 to 1st February 2015 or until the FDR, if earlier.

18 I give the husband until 1st April 2014 to signify whether he is mounting a case concerning the effective validity of the triple talaq pronounced in his home country.  If he does, then from that date there will be a further £10,000 a month payable to the wife for the purposes of such litigation which will be paid from 1 April 2014 up to and including 1st September.  In my previous judgment on 16th December 2013, I decided that the husband should contribute £50,000 towards the costs incurred by the wife's previous solicitors, Vardags.  It is plain now that those costs are in dispute.  In his affidavit Mr. Tooth has explained that he is of the view that the costs are completely excessive and that it is intended that a complaint should be made to the Solicitors Regulation Authority concerning them.  In circumstances where those costs are the subject of great dispute, I stay the obligation of the husband to pay that £50,000.  I do not vary that amount, let alone discharge it.  I stay it until the complaint that is to be made by the wife has been dealt with and until any detailed assessment that she may seek under the Solicitors Act has been concluded.  That is my judgment.

LATER
19 On Thursday 27 February 2014, two days after I gave the above judgment, I received an email from Mr Cusworth QC which stated

"Before finalisation of your judgment in this matter, we feel that we should point out to you that at H85 in the bundle (exhibits to our client's Form E) is the statement for our client's BBB Bank account for the 12 months to May 2013, up to its closure. Apologies for not having mentioned this yesterday – we acknowledge that the statement is not the most legible, and the solicitor who had collated the disclosure was not in court. However, the account number, the dates and the balances can just about be made out. In the light of this, which we have pointed out to Mr Dyer, we ask that you reconsider in your final judgment some of your remarks about our client's disclosure."

20 I forebear from comment as to how all the lawyers in my court could have missed this document, which was in the bundle, and to have permitted that aspect of the case to have been argued on a false basis. Be that as it may, the error does not cause me to revise my judgment one whit. The barely legible statement does not begin to answer the obvious questions about the husband's letter to BBB Bank of 7th November 2011. Obviously I withdraw my criticism of the husband for not having produced BBB bank statements.