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Home > Judgments > 2005 archive

Dutt v Dutt [2005] EWCA Civ 1193

Application to appeal orders made in divorce proceedings. Application refused.

Neutral Citation Number: [2005] EWCA Civ 1193

Case No: B4/2004/0390/0391//1307/1098

B4/2005/0835/PTA

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM DEWSBURY COUNTY COURT

HHJ FINNERTY

HD02D00938

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 25/10/2005

Before :

LORD JUSTICE WALL

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Between :

DR DEV DUTT Appellant

- and -

CATHERINE SARAH DUTT Respondent

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

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

Aelred Hookway (instructed by Henry Hyams) for the Appellant

(in relation to Court of Appeal reference B42005/0835)

The Appellant in person in relation to the other applications

(The Respondent did not appear and was not represented)

Hearing dates : 26th August 2005

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

Judgment

Lord Justice Wall :

1. There are before the court five applications by Dr. Dev Dutt (the appellant) for permission to appeal against orders made in the divorce proceedings between the appellant and his former wife Catherine Sarah Dutt (the respondent) in the Huddersfield County Court. In chronological sequence, the orders challenged are as follows: -

(1) an order of HH Judge Finnerty made on 29 January 2004 (Court of Appeal reference B4/2004/0390);

(2) an order of HH Judge Finnerty made on 6 February 2004 (Court of Appeal reference B4/2004/0391);

(3) an order of HH Judge Cockroft made on 24 March 2004 (Court of Appeal reference B4/2004/1307);

(4) a order of HH Judge Finnerty made on 23 April 2004 (Court of Appeal reference B4/2004/1098); and

(5) an order of HH Judge Finnerty made on 9 December 2004 (Court of Appeal reference B42005/0835).

2. These applications have had a chequered history in this court, and their resolution has been substantially delayed. I do not propose to rehearse that history in this judgment. For present purposes it is sufficient for me to record that the appellant had, until recently, been acting in person in this court. However, when I heard argument on the applications on 26 August 2005, he had the benefit of legal representation, albeit that it was limited to the application identified at paragraph 1(5) above. However, as the order made by Judge Finnerty on 9 December 2004 was the final order in the proceedings for ancillary relief between the parties, and as all the previous orders (apart from that made by HH Judge Cockcroft on 24 March 2004) were in large measure made either in anticipation of or as part of the preparation for the final order made on 9 December 2004, it is plain to me that the appellant was represented on by far the most significant aspect of the case, and accordingly suffered no detriment from appearing in person on the remaining applications.

3. The proceedings for ancillary relief were, themselves, substantially delayed in the court below. As Her Honour Judge Finnerty records in her judgment given on 9 December 2004, the respondent began her application for ancillary relief on 23 July 2002, and it was not finally determined until 9 December 2004, some two years and four months later. The judge attributed this delay largely to the appellant's failure to give full, frank and clear disclosure and his obstructive behaviour generally. Although there were periods when the appellant was ill, there was plainly material upon which the judge could make those findings, and they are, in my judgment, findings which the appellant cannot challenge in this court.

4. As I regard the application for permission to appeal against the final order made on 9 December 2004 as the only application of the five before me which has any substance, I propose to summarise the other four applications, and dispose of them in short form.

The order of 29 January 2004

5. This is what is known as a final third party debt order. It derives from a consent order for maintenance pending suit made by District Judge Rhodes on 2 August 2002 in which the appellant agreed to pay the outgoings on the former matrimonial home together with £1000 per month to the respondent, that order being varied by the district judge on 5 September 2003 to £1500 per month. The appellant had ceased to make the payments in June 2003, and the respondent applied to enforce. The order of 29 January 2004, which is in conventional terms, directed the Central Huddersfield Primary Care Trust (CHPCT) (the appellant's employer) to pay to the respondent the sum of £2,500 on or before 29 January. The order explains on its face that the amount owed by the CHPCT to the appellant will be reduced by what the CHPCT pays to the respondent, and the amount owed by the appellant to the respondent will be reduced by the same amount.

6. The judgment given by HH Judge Finnerty on 29 January 2004 is in my papers. It is short and to the point. A third party debt order nisi had been made in November 2003. The CHPCT had not appeared before the judge to make representations. The judge accordingly saw no reason not to make it absolute.

7. The judge also noted that there were a number of outstanding issues between the parties, and accordingly she made the sensible decision to list everything before herself sitting in Huddersfield on 6 February 2004. Both parties were represented before her on 29 January 2004, and she invited the advocates to agree a schedule of all outstanding applications, together with any directions which could be agreed and any directions which the court would be invited to make, with a view to bringing all litigation between the parties to a speedy conclusion.

8. I can see no possible criticism of the judge in making the order of 29 January 2004. If the appellant's case was that he could not afford the order, his remedy was to apply to the judge or the district judge on proper information to vary it. He did not so this. In normal circumstances any anomalies in an interim order are resolved at the final hearing. The Respondent and the children plainly needed the order for maintenance pending suit, and no criticism can be advanced against the judge for taking necessary steps to ensure that the order was obeyed. I therefore see absolutely no prospect of an appeal against the enforcement of such an interim order having any prospect of success. Permission is, accordingly, refused in relation to the appeal against the order of HH Judge Finnerty made on 29 January 2004.

The order of 6 February 2004

9. This is the directions order made in the ancillary relief proceedings between the appellant and the respondent consequent upon the judge's order of 29 January 2004. Her Honour Judge Finnerty firstly refused the appellant permission to appeal out of time against a previous third party debt order made on 5 September 2003. She then proceeded to give a number of directions. The first direction was designed to give the Cheltenham & Gloucester Building Society (C&GBS) the opportunity to become a party to the proceedings. C&GBS were the mortgagees of the former matrimonial home. If they did not attend before the district judge on 23 February 2004 at 12.45pm that was to be taken as an indication that they did not intend to become involved and would abide by the court's decision.

10. Secondly, the appellant was directed to file a statement in response to the respondent's application to set aside an alleged charge on the former matrimonial home to the HSBC Bank, and was also directed to comply with previous directions by 5 March 2004.

11. Thirdly, the final hearing of the respondent's application for ancillary relief was to be listed on the first available date after 5 March 2004 with a time estimate of three days. Fourthly, the appellant's application to vary the interim periodical payments order in the respondent's favour was to be listed prior to the final hearing of the application for ancillary relief, together with the respondent's application for an order for periodical payments, provided the appellant had complied with the previous directions order.

12. Fifthly, an application by the appellant to commit the respondent to prison was to be considered by the judge immediately after the ancillary relief hearing. Two other applications were to be dealt with within the ancillary relief proceedings, as were questions of costs and wasted costs. There is also a reference to an application for damages against solicitors which was to be listed before the district judge on a date to be fixed.

13. The judge described all these orders as, essentially, case management decisions designed to ensure that the final hearing for ancillary relief was heard on proper evidence. I agree with her. I can see no criticism of any kind which can properly be levelled at these orders, all of which seem to me eminently sensible. Furthermore, it is plain that the judge was alert to the possible injustice in the order for maintenance pending suit, since she directed that the appellant's application to vary the interim periodical payments order in the respondent's favour was to be listed prior to the final hearing of the application for ancillary relief, together with the respondent's application for an order for periodical payments provided the appellant had complied with the previous directions order.

14. In these circumstances, it seems to me than an appeal against the orders made on 6 February 2004 would have absolutely no prospects of success for two reasons. Firstly, the orders were sensible. Secondly, they were case management orders designed to ensure that the final hearing of the application for ancillary relief was properly prepared. That final hearing has now taken place. Any question of an appeal against such orders is thus academic.

15. I should perhaps add that I do not have a copy of any judgment given by HH Judge Finnerty on 6 February. I do, however, have a transcript of part of the hearing. The judge invites the appellant to address her on the application for permission to appeal out of time against the third party debt order made by the district judge on 5 September 2003. He does so, over several pages of transcript. The respondent's solicitor then addresses the judge on the question of the charges registered against the leasehold title of the former matrimonial home. The extract from the transcript then ceases. Nothing in the transcript affects the view I have formed of the correctness of the judge's order.

The order of 24 March 2004

16. HH Judge Cockroft, on the non-attendance of both the appellant and the respondent ordered that the application to commit Philip Emery (the Co-Respondent in the divorce proceedings) to prison be struck out.

17. I am lacking any relevant documentation in relation to this order. Given the information which is available to me in relation to the applications made by the appellant overall, however, and given the fact that he was made the subject of an extended civil justice restraints order on 16 November 2004, I can frankly see no basis upon which it would be appropriate either to challenge the order made by HH Judge Cockroft, or on which any such challenge would have any reasonable prospect of success.

18. The order was, moreover, made over 18 months ago, and whatever the subject matter underlying the committal application, it would seem to me quite inappropriate to revive it at this late stage.

The order of 23 April 2004

19. On this occasion, HH Judge Finnerty refused to stay the third party debt order and dismissed the appellant's application for permission to appeal against it. In her judgment, Judge Finnerty explains why she made these orders. She explains that on 6 June 2003, DJ Rhodes had ordered the appellant to disclose information in the ancillary relief proceedings between himself and the respondent. Further, on 2 August 2003, DJ Rhodes had made an order for maintenance pending suit in the sum of £1,500 per month in favour of the respondent. The appellant had neither made disclosure as ordered nor paid the order. The respondent had accordingly sought to enforce the order by third party debt applications.

20. On 6 February 2004, at the directions hearing set out above, the appellant had told the judge about his financial difficulties. She had taken the view that there was an urgent need for his application to vary the periodical payments to be heard and adjudicated upon. However, that could not happen without the appellant giving disclosure. It was for this reason that she had made her order that provided the appellant gave disclosure by 5 March, an application by him to vary the order for maintenance pending suit would be heard before the final ancillary relief hearing: indeed, she assured him that it would be listed as a matter of urgency.

21. In this respect, the judge commented: -

"Between 6 February 2004 and 5 March 2004, I have kept a very close eye upon that part of my order, because I was particularly concerned about Dr Dutt and his stated financial difficulties. Unfortunately, Dr Dutt failed to comply with the order that I made and as I understand the position, has still failed to comply with that order. Accordingly, the order for maintenance pending suit remains in force."

22. As the order for maintenance pending suit remained in force, the respondent continued to apply to enforce it. Thus it was that a district judge had made a further interim order on 26 January 2004 and the judge had made a final third party debt order on 16 March 2004, in the appellant's absence. She was, however, satisfied that he had been served both with the interim order and notice of the final hearing.

23. The appellant had written to the court prior to 16 March 2004 stating that he had applied for a stay of HH Judge Finnerty's order of 6 February 2004 on the ground that he had appealed it. In his letter, he asked the court not to make any further orders pending the outcome of his appeal. The judge refused that request and made the order.

24. On 23 April 2004, the appellant applied to HH Judge Finnerty to stay the third party debt order. The judge also proposed to deal with the appellant's application for permission to appeal the third party debt order. She dismissed both applications. She said: -

"I dismiss both applications for the following reasons. In my judgment, for so long as this order remains in force, Mrs Dutt will bring these applications for third party debt orders. The arguments against such orders have been rehearsed before me and before district judge Rhodes on a number of occasions, both by Dr. Dutt and also by his practice manager.

Today, the primary ground for Dr. Dutt's application is that he was not served with the order giving notice of the hearing on 16 March and also that he had written to the court in January, indicating that he would not be available to attend court for dates in February and in March. As far as the former is concerned, I am satisfied from the court file that Dr. Dutt was, in fact, served with the interim third party debt order and the notice of hearing of 16 March. As far as the latter is concerned, I can confirm that that letter written in January was not brought to my attention prior to the hearing on 16 March 2004. However, had it been brought to my attention, I would have adjourned the hearing to enable Dr. Dutt to attend, but if I had done so, I am quite sure that his attendance would not have stopped me making the final third party debt order.

I repeat: I have heard the arguments on previous occasions. Accordingly, I refuse the stay and I dismiss the application for leave to appeal."

25. I should add that, in support of his applications for permission to appeal in this court, the appellant produced four ring binders of documentation, almost all of which is irrelevant to the applications before this court. Most concerning, perhaps, is that much of the documentation is taken up with what can only be described as vituperative attacks on the judge and a number of other people, including the respondent's solicitor, who is regularly accused of dishonesty and professional mal-practice. It seems to me sufficient if I say that I can see no basis whatsoever for any attack on the conduct of the judge who, as my recording of the interlocutory applications demonstrates, was plainly concerned both to give the appellant the opportunity to deal with the question of maintenance pending suit and to ensure that the respondent's application for ancillary relief was heard and determined on proper evidence as soon as possible. Equally, I can see no basis whatsoever for the appellant's attack on the respondent's solicitor, who, as it seems to me, was doing his professional best to represent the interests of his client in extremely difficult circumstances.

26. Thus, in my judgment, the appellant's unwarranted attacks on anyone who disagrees with him reflect on him rather than on those whom he attacks. Furthermore, such conduct, and the proliferation of paper unrelated to the issues in the cases tends to mask any arguable points which Dr. Dutt may have.

The order made by HH Judge Finnerty on 9 December 2004

27. The order made by the judge on 9 December 2004 is undoubtedly unfavourable to the appellant. The question for this court, of course, is whether or not the appellant has a reasonable prospect of success in seeking to overturn it, or any part of it in this court. This in turn depends on whether or not the judge made any error of law, or exercised her discretion in such a manner as to categorise the order as plainly wrong.

28. Paragraph 1 of the order requires the appellant to transfer to the respondent forthwith "all his legal estate and beneficial interest in the freehold and leasehold property" which comprised the former matrimonial home, together with some land adjacent to the property. The transfer is subject to a charge secured on the leasehold title dated 22 March 1996 in favour of C&GBS. Paragraph 2 of the order, however, sets aside under section 37 of the Matrimonial Causes Act 1973 (MCA 1973) a second charge over the leasehold title in favour of HSBC.

29. The appellant has two pension arrangements with the National Health Service Pensions Agency, referred to in the order as the "larger" and the "smaller". Paragraph 3 makes provision by way of pension sharing in relation to the larger pension. The detail is set out in Annex A to the order, to which I will come in due course.

30. In relation to the small pension, there was some confusion over whether or not it was actually in payment. Paragraph 4 of the order makes a pension attachment order under MCA 1973, section 25B by way of periodical payments in accordance with Annex B in relation to the smaller pension payable either immediately or immediately it comes into force. Any such payment by the pensions agency is to be treated for all purposes as a payment made by the appellant as the party with pension rights in or towards his liability under the order and is to form part of the total maintenance payable in respect of the respondent.

31. The maintenance payable in respect of the respondent is specified in paragraph 5 of the order. The figure is £2,000 per month inclusive of the monies received under the small pension. It is an order expressed to be for joint lives or until the respondent's remarriage. However, the judge also made what is known as a "Segal" order. As described by Thorpe LJ in Dorney-Kingdom v Dorney-Kingdom [2000] 3 FCR 20 at 24: -

A practice has grown up, finding its origins before District Judge Segal in the Principal Registry, to make an order for spousal maintenance under s 23(1)(a) of the Matrimonial Causes Act 1973 that incorporates some of the costs of supporting the children as part of a global order. When a Segal order is made an important ingredient is that the overall sum will reduce pro tanto from the date upon which the Child Support Agency brings in an assessment. The utility of the Segal order is obvious, since in many cases the determination of the ancillary relief claims will come at a time when the Child Support Agency has yet to complete its assessment of liability. It is therefore very convenient for a district judge to have a form of order which will carry the parent with primary care over that interim pending the Agency's determination.

32. Paragraph 5 of Judge Finnerty's order thus records that the court was of the opinion that reasonable provision for the two children of the marriage (daughters aged 13 and 11) would be £500 per month per child, and if the Child Support Agency assessed the appellant's liability for the children at an amount in excess of £500 per month, the periodical payments to the respondent would be reduced by the amount of the excess.

33. In paragraph 6, the judge adjourned generally the respondent's application for a pensions attachment order in relation to the death in service benefits payable under the larger of the two arrangements.

34. Paragraph 7 of the order dealt with items of personal property. Paragraph 8 dismissed two further applications by the respondent under MCA 1973 section 37, although the appellant was order to pay the costs of the parties against whom the applications were made Paragraph 9 dismissed an application for a final charging order in favour of HFC Bank in relation to the former matrimonial home and discharged an interim order. Paragraph 10 discharged an order for disclosure of documents made by District Judge Rhodes on 6 June 2003. Paragraph 11 directed that the decree nisi made on 13 March 2003 be made absolute forthwith. Paragraph 12 dismissed all other pending applications in the case. Paragraph 13 authorised a district judge to execute any documents in relation to the transfer of property order in paragraph 1, and on completion of the transfer, all the parties' respective claims for capital provision under MCA 1973 sections 23 and 24 were to stand dismissed. The appellant was ordered to pay the respondent's costs on an indemnity basis (paragraph 15): the respondent's costs were to be subject to a detailed assessment (paragraph 18) and there was liberty to apply as to implementation (paragraph 17).

35. In relation to the larger pension, Annex A defines the specified value of the pension arrangement to be transferred as 35% of the CETV of the pension arrangement, that provision taking effect on the date of the order. As to the smaller pension, Annex B provides that the person responsible for the pension arrangement is required to pay to the respondent monthly in advance from the date of the order 100% of the net pension annuity payable to the appellant during the joint lives of appellant and respondent or until the respondent's remarriage or further order of the court.

The judge's judgment

36. In order to understand the attack made by counsel for the appellant on the judgment, it is necessary to set out the judge's reasoning in some detail.

37. The hearing had lasted three days. Each side was represented by counsel. The judge said she would normally have reserved judgment, but decided to give judgment immediately because of the delay in the case being heard, the stress of the proceedings on the respondent, and the "inordinate costs which have already been incurred".

38. The judge outlines the essential background. The parties had married in 1991 and separated in 2002. There were two children aged 13 and 11. The appellant was 63 and a medical practitioner. The respondent was 39, and not employed outside the home. She was, however, a university graduate who had obtained a job as a medical representative on leaving university and had her own flat and a company car. She had given up paid employment after the birth of her second child but had worked as Practice Manager in the appellant's practice for four years.

39. The appellant was a general practitioner in Huddersfield, who also worked as a consultant in the Accident and Emergency Department of Halifax General Hospital. He also undertook work for another Health Authority, the Department of Work & Pensions, and some private work. The family enjoyed a high standard of living. The appellant paid the bills and gave the respondent £400 per month housekeeping and £600 to £700 per month for her work within the practice. He had dismissed her in April 2002 after receiving a letter from her solicitor informing him that the marriage was over. He also stopped giving the respondent any money, and this prompted her application for ancillary relief, included in which was an application for maintenance pending suit. In the context of that application, the respondent identified outgoings of £1,931.50 per month exclusive of utility bills . On 2 August 2002, there was an order made by consent. The appellant agreed to pay all the outgoings on the former matrimonial home together with £1,000 per month maintenance pending suit. The judge drew the inference from that agreement that the appellant "agreed at that time that the respondent needed £1,000 per month exclusive of household bills in order to maintain herself and the children at the pre-separation standard of living".

40. Unfortunately, however, the judge records that the hearing on 2 August 2003 marked the end of any co-operation between the parties. The judge also records that it also marked the beginning

"…… of a quite extraordinary history of litigation, primarily instigated by the husband, which litigation His Honour Judge Hawkesworth has very recently sought to manage by way of a civil restraint order against the husband. In my judgment, looking at the history of the case, that is an order which should have been made a considerable time ago."

41. The judge goes on to record that on 26 September 2002 Judge Cockroft had made an occupation order excluding the appellant from the former matrimonial home as from 1 October 2002. The appellant had filed his Form E on 21 October 2002. This contained "very few details of his asset position, but contained a detailed list of enormous debt". The appellant's explanation was that he needed access to the former matrimonial home, where his documents were kept. The district judge on 30 October 2002 accordingly made an order giving the appellant limited access to the property, but no further information was forthcoming by the time the matter came back before the district judge on 3 December 2002. Indeed, it was indicated to the district judge that the appellant had no assets at all and was facing insolvency.

42. The respondent did not accept that this was the case. Her case was that the appellant was deliberately concealing assets from her and from the court. Her solicitor filed a statement to this effect. However, his second Form E, filed on 28 January 2003 did not take the matter much further. However, he exhibited a schedule to the form indicating debts totalling a little less that £900,000.

43. The court had endeavoured to investigate the parties' respective claims. On 6 June 2003, district judge Rhodes had made an order "for disclosure of the most basic information". The appellant did not obey. A penal notice was attached, and the time for filing the information had been extended. In the meantime, however, the respondent had discovered that the appellant had, without her knowledge, taken out a loan for £100,000 from HSBC, which he had sought to charge against the former matrimonial home. She applied to the district judge on 30 June 2003 for the transaction to be set aside. The appellant did not attend on 30 June 2003, and an order was made directing that he be served. The judge records that it was common ground between the parties that this transaction should be set aside, and she duly did so - (see paragraph 2 of the order identified at paragraph 28 above). The judge drew the inference that the appellant accepted that this was an attempt by him to defeat the respondent's claim.

44. Since the appellant had stopped his payments of maintenance pending suit, the respondent made the applications to enforce the order to which I have already made detailed reference. The judge, however, records other interlocutory applications. She notes that district judge Rhodes initially listed the hearing of the ancillary relief application for five days before himself commencing 25 November 2003. She draws the inference that the district judge had concluded that there was no possibility of securing further disclosure from the appellant, and that the only alternative was to move to a final hearing.

45. However, the hearing on 25 November 2003 did not take place because a letter was sent to the district judge indicating that the appellant was medically indisposed. Although this was not accepted by the respondent, the district judge decided of his own motion to vacate the November hearing and to list the final hearing before Her Honour Judge Finnerty.

46. It was in these circumstances that the case came into Judge Finnerty's list. There were, she records, three separate strands to the case. There was the substantive application for ancillary relief; there were applications by the respondent under MCA 1973 section 37; and there were the enforcement proceedings relating to the non-payment of the order for maintenance pending suit. The judge describes the case as having become "unwieldy". The appellant had failed to comply with the orders for disclosure. He had failed to reply to directions made in the section 37 proceedings, and the judge describes his only involvement in the case as a whole as being regularly to apply to revoke the third party debt orders. There was also, the judge records, a plethora of other applications. The judge decided, rightly in my view, that the case needed a firm grip taken on it. This she did by directing that all outstanding applications be listed before her on 6 February 2004, a hearing which resulted in the sensible case management decisions made on that day, to which I have already referred, and in respect of which I have refused permission to appeal. The judge's concern about the case is set out in paragraphs 33 to 36 of the judgment, which read as follows: -

"33. This (i.e. the hearing on 6 February 2004) being my first involvement in this case, I remember it very well indeed. At that time, the husband was a litigant in person. He was anxious to persuade me that he was concerned about the level of the order in respect of maintenance pending suit, that he wanted a final hearing in respect of the ancillary relief proceedings, and that he was prepared to comply with the orders for disclosure.

34. I have a very clear recollection of the husband giving an assurance to the court that he could and would comply with the order for discovery on or before 5 March 2004. Further, I have a very clear recollection of me giving him an assurance that should he so comply I would ensure that there was an urgent hearing to determine the appropriate level of maintenance pending suit.

35. All the orders made by me on 6 February 2004 were orders of pure case management, save for paragraph 1 of that order in which I dismissed the application by the husband for leave to appeal a third party debt order made on 5 September 2003.

36. The husband failed to honour the assurance he had given me on 6 February 2004. He immediately appealed the order that I had made; I repeat, most of which consisted of pure case management, and then elected to completely ignore the order altogether."

47. The judge records that the appellant applied at the outset of the hearing on 7 December 2004 to adjourn the hearing on the ground that this court had not adjudicated on the application for permission to appeal against the order of 6 February. The judge described that as an outrageous application, the more so because the judge had adjourned the proceedings in September 2004 because the appellant was facing disciplinary proceedings before the General Medical Council (GMC), which could have a serious impact upon his earning ability had he been struck off. No mention had been made on that occasion of any outstanding appeal. The judge comments that the proceedings before the GMC were concluded in the middle of November 2004; they had resulted in the appellant being reprimanded. On disclosure, however, the court was no further forward than it had been two years earlier. Despite this, the appellant had continued to bombard the court with applications, many of which were, she said "ridiculous" including one which related to the alleged sale by the respondent of old golf balls. Unfortunately, the judge recorded, the result of this activity had been that the respondent's costs alone were estimated as being in excess of £70,000. The appellant was now the subject of a civil restraint order.

48. Before turning to the financial position of the parties, the judge commented adversely on the appellant's behaviour in court. The judge makes it clear that she is using her assessment of his court behaviour as part of her assessment of him overall. She says: -

"41. I now turn to the husband's behaviour during the course of these proceedings. In my judgment he was, from the outset, intent upon dominating them. He insisted upon sitting close to the wife's legal representative behind her counsel rather than behind (his). He would only move when ordered to do so by me. He produced tape recording equipment which caused the proceedings to be interrupted. He insisted on talking throughout the proceedings. In the witness box he refused to answer any questions directly, even those put by his own counsel. He was persistently insulting towards his wife, her solicitor, her counsel and other members of the judiciary who have dealt with him in the past. This morning he ignored my refusal of his application last evening for the court to sit at half past 11, and chose to fail to attend court on time.

42. I have rehearsed these matters at some length as they have informed my assessment of the husband. I am quite satisfied and find that he is an intelligent, professional man. However, I am also quite satisfied and find that he has used that intelligence to embark upon a course of conduct which has deliberately been designed to deflect this court from a proper investigation of the wife's claim to ancillary relief."

49. I pause to interject that the assessment of the parties in family proceedings is particularly the province of the trial judge, provided, of course, there is material on which the court can properly reach an adverse conclusion about a party, and provided the judge explains why he or she has reached that conclusion. In proceedings for ancillary relief, both parties owe a duty to the court to give full, frank, and clear disclosure of their respective financial positions. The appellant's persistent failure to provide that disclosure places him at a clear disadvantage in this court when he seeks to challenge judicial findings about his means and his financial probity. At the same time, of course, the object of MCA 1973 section 25 and the rules about disclosure are not to punish a party who disobeys court orders. The object is to achieve a fair distribution of the family's wealth at the end of the marriage. If one party has failed to give disclosure, and has concealed assets, the task of the court is made more difficult, and inferences have to be drawn about the financial position of the party who fails to disclose. Once again, if the court chooses to draw those inferences, it is very difficult for the defaulting party to complain, for the very simple reason that it is the defaulting party, by his or her default, who has put the court in the position in which, in order to do justice to the party who has obeyed the rules, it has to draw adverse inferences. It is against that background that I will set out the remainder of the judge's judgment.

50. The judge begins by directing herself, correctly, to the fact that under MCA 1973 section 25(1), her first consideration was the welfare of the two children whilst under the age of 18. She noted that the appellant had been denied all direct contact with the two children by the court, with the consequence that the respondent would be a sole carer, and would require suitable accommodation and sufficient financial means to meet their needs and her own.

51. The judge was satisfied that the respondent had very limited capital of her own; that she had made full disclosure, and that such capital as had been held by her on separation had largely been expended on meeting the children's school fees and general maintenance. The respondent had an earning capacity, but the judge accepted the respondent's evidence that her health had suffered as a consequence of the breakdown of the marriage and its aftermath. She was, the judge found, depressed and receiving treatment for a hormonal imbalance as well as for her depression. The absence of medical evidence was explained by fact that the appellant had reported those treating her to the GMC. The judge's conclusion on this point, however, was as follows: -

"It is her evidence, which I accept, that her advice is that she should make a full recovery at some time after she is given a breathing space from the pressure and stress surrounding the breakdown of this marriage. I hope that time comes soon. However, looking at the history of this case I regret I am not optimistic, and in my judgment this is not a case where I could fairly impose a time limit upon any matrimonial payment that I make."

52. The judge then turned to the former matrimonial home. She accepted a valuation of £375,000 given by a solicitor called in response to one of the MCA 1973, section 37 applications. There was a mortgage in favour of the C&GBC of £126,000. The appellant had refused to disclose the amount of this mortgage, and the respondent had been put to the additional cost of making a formal application to the court to obtain it from the Building Society. There was also the charge in favour of HSBC which the judge ignored in calculating the equity, as it was agreed that this charge should be set aside by consent. The appellant's evidence was that there was a further, informal charge against the property in favour of his former partner, who had vacated when the appellant and the respondent began to live together in 1991. He said he had agreed to pay his former partner half the equity. The judge rejected this evidence, as she was entitled to do. She found that the appellant was not an honest or reliable witness, and she said she could not accept any evidence from him unless it was independently corroborated.

53. As to the appellant's income, the judge said: -

"….. he has declined to disclose details of his income, with the result that the court has had no alternative but to draw inferences from the evidence which is available. I rely on the evidence of the wife, which I accept. I have also been referred to a number of documents by (counsel for the wife) ….. Doing the best I can from the evidence that I have available, I am satisfied and find that the husband's gross income is a minimum of £100,000 per annum. In reaching that decision, I specifically reject his contention that his practice is being run at a loss. On a number of occasions during the course of these proceedings, Dr. Dutt has asserted that he is a busy medical practitioner. As I have already indicated, he is a professional, intelligent man. I cannot accept that he would be running such a busy practice at a loss."

54. The judge then turned to pensions. It was possible that the respondent had a very small pension based on her short employment in the appellant's practice, but if so, it was inconsequential. The appellant had two NHS pensions. The first, the smaller, produced £5,308, according to the respondent, whose evidence was that it was already in payment. This was something the appellant denied.

55. As to the larger pension, the appellant had, once again, refused to disclose its value voluntarily. There has to be an order directed to the Trustees. The figures given by the judge were that if the appellant were to take the pension at the age of 65, he would be entitled to a lump sum of £109,803 and an annual pension of £37,454.

56. The judge then turned to the respondent's assertion that the appellant had substantial assets which he had failed to disclose. Her case was based largely on documents which the appellant had left in the former matrimonial home. Those documents had been painstakingly analysed by the respondent's advisers. The amount, excluding the former matrimonial home and the value of the pension, was £379,397. The appellant rejected the figure and maintained he was penniless. The judge rejected the appellant's evidence. She described him as "evasive and unhelpful" when challenged on specific items in the witness box, and pointed to an inconsistency between his oral evidence and the skeleton argument prepared on his behalf.

57. The judge said that the appellant asserted his debts to amount to almost £1 million. There was, however, little evidence to support his assertions. There was debt to the HFC Bank in the sum of £11,580 in relation to which the Bank had obtained a charging order nisi which the judge refused to make absolute. There was a statutory demand from the Inland Revenue for unpaid tax in the sum of £90, 894. The appellant had asserted that there were other county court judgments details of which he failed to produce.

58. Furthermore, the judge said, she had given the appellant the opportunity to provide an authority to those advising him to approach the various financial institutions in which the respondent asserted he held funds. The appellant declined to give that authority. The judge continued: -

"Moreover, and in my judgment very significantly, produced to the husband in cross-examination was a statement from the Yorkshire Building Society of an account held in the husband's sole name from which it could be demonstrated that between February 2003 and August 2004 over £52,000 went through the account, but the husband refused to inform the court where that money had come from save to say that it had come from various friends and institutions. I specifically reject that evidence. Production of that particular building society account statement confirms my conclusion that the husband is deliberately withholding information from the court and leads me to conclude that he does, in fact, have access to substantial assets which have remained undisclosed."

59. The judge was critical of the appellant for purchasing life membership of his local golf club for £12,500 in February or March 2003, a fact which was common ground. The judge commented: -

"In my judgment he would not have been paying out such a large sum of money for such a frivolous privilege had he not had sufficient funds to justify it. Moreover, it makes a mockery of his assertions that he could not pay maintenance pending suit."

60. However, the judge refused the respondent's application to set that particular transaction aside. She also refused to set aide the transfer by the appellant of her motor car to a third party.

61. In making her award, the judge relied on the guidance given by Munby J in Al-Khatib v Masry [2002] EWHC 108 (Fam): [2002] 1 FLR 1053. As to the former matrimonial home she recorded that there was, in effect, no real issue between counsel as to what should happen to it. She transferred it to the respondent, subject to the C&GBC charge. She set aside the charge to the HSBC Bank. She rejected the respondent's argument for a further lump sum of £40,000 by way of clean break. She said: -

"There is no specific capital asset which has been identified to which such lump sum order could be attached. I fear that the husband may be facing bankruptcy. If I were to make a lump sum order that would then put the wife in the queue of creditors. In my judgment it is far better to secure her position in the difficult situation in which she finds herself by way of a periodical payments order."

62. The judge recognised that she did not have jurisdiction to make an order for periodical payments in favour of the children. She calculated, however, that had she been able to do so, she would have assessed the respondent's liability at £1,000 per month (£500 per month per child). The judge recorded that the respondent had put forward a schedule of expenditure totally approximately £2,300 per month, a figure not dissimilar to that put to the district judge in 2002. She concluded that the respondent was not an extravagant woman and assessed the appropriate figure for family maintenance at £2,000 per month.

63. The judge decided to make what has become known as a "Segal" order for periodical payments in the sum of £2,000 per month, the spousal element of which would be directed against the smaller pension, if it was in payment: - see paragraphs 30 and 31 above. Finally, the judge turned to the larger of the appellant's two pensions. I propose to set out her reasoning in full.

"68. As far as the large National Health pension is concerned, there are two elements to this. Firstly, the death in service benefit, and secondly the pension itself. Initially, (counsel for the respondent) submitted that there should be an earmarking order in favour of the wife as far as the death in service benefit were concerned, and a pension sharing order in respect of the pension itself. There is a disagreement on the law between counsel as to whether or not that is possible. However, (counsel for the respondent) is content that I should adjourn his application in respect of the death in service benefit on terms that I should assess the wife's share in the pension completely independently of that death in service benefit.

69. It is agreed between counsel that if the wife's share in the pension were looked at on a pure arithmetical basis looking at the value of the pension during the cohabitation of the parties, the wife's claim would be in the order of 13%. It is properly conceded by (counsel for the appellant) on behalf of the husband that because of all the circumstances of the case it would be appropriate for the wife's claim to be inflated to compensate her in respect of the undisclosed assets. It was (counsel for the appellant's) contention that an appropriate share of the pension would be in the order of 25%. (Counsel for the respondent) on behalf of the wife, contends t hat the appropriate share would be in the order of 50%. I see the force of the submissions made by both counsel in respect of this particular issue and, doing the best I can and seeking to compensate the wife properly, I have assessed the appropriate share at 35%."

64. The balance of the judgment is taken up with a number of tidying up and administrative measures. However, the judge directed that the decree nisi be made absolute, and ordered the appellant to pay costs on an indemnity basis, taking the view that the respondent had been left with no alternative but to pursue every avenue because of the appellant's obstructive attitude towards disclosure.

The attack on the judgment

65. The grounds of appeal settled by counsel record that since the hearing before the judge a number of events have occurred. Firstly, there have been further complaints to the GMC about the appellant with further hearings anticipated, although no date has been set. It is the appellant's understanding that if he were to be struck off he may lose up to 40% of his pension. Secondly, the appellant had been suspended by the PCT since February 2005. This meant, it was said, that the appellant is unable to maintain his medical practice. Thus although the PCT continues to pay 90% of the remuneration due under the appellant's contract, a combination of the order for periodical payments and the third party debt orders means that the appellant is not receiving any income. I was told there was a hearing on 4 and 5 October at which officers of the PCT will be seeking to have the appellant's name removed from the PCT's list.

66. Whist it is accepted that the judge could not have known that further complaints to the GMC were going to be made, counsel argued that it was, or should have been clear to her that the appellant's ability to remain engaged in his chosen profession might be seriously compromised. The judge had been wrong to assume without qualification that since the GMC hearing of November 2004 had been disposed of, the appellant could look forward to an uninterrupted resumption of his career. Alternatively, if not foreseeable, the events described amounted to a change in the appellant's circumstances not envisaged at the time which seriously undermined the basis of the original order.

67. In any event, counsel submitted the order for pension sharing in relation to the larger pension was unfair, even when account was taken of any adverse inferences relating to non-disclosure. The respondent had received the outright transfer of the former matrimonial home, an asset worth £249,000 net, and although the judge had found the appellant had "access to substantial assets which had remained undisclosed" she had also recorded her fear that he may be facing insolvency, thereby recognising the level of debt owed by the appellant.

68. The judge was further wrong, counsel argued, to make a conventional joint lives order for periodical payments when (a) a pension sharing order had been made; (b) it was accepted that the respondent had an earning capacity and that at some stage she should be able to return to work; and (c) given the respective ages of the parties. Furthermore, the judge should not have adjourned generally the respondent's application for a pension attachment order.

Discussion

69. I am extremely grateful to counsel for the appellant for his clear and well reasoned submissions. The question for me is whether they raise arguable grounds of appeal.

70. Counsel did not attack the transfer of the former matrimonial home into the respondent's sole name subject to the C&GBS mortgage. In my judgment, he was wise not to do so. Quite apart from the tacit acknowledgement before the judge that the property should be so transferred, the equity in the property was plainly required to enable the respondent and the children to be sensibly re-housed. As an exercise of judicial discretion, it seems to me unimpeachable.

71. As to periodical payments, the judge's findings about the effect of the divorce and subsequent proceedings on the respondent (set out by in the passage from her judgment which I have cited at paragraph 51 above), combined with the fact that the respondent has the sole care of two children of 13 and 11 entitled her, in my view, to take a conservative view of when and how the respondent's earning capacity could be revived, and I do not think that it can be said that a joint lives order in the circumstances was plainly wrong. As to the quantum of the order, £2,000 per month, or £24,000 a year seems to me to be well within the discretionary band of awards.

72. This leaves the pension. I can detect no error in using the smaller of the pensions to pay part of the periodical payments order. The only possibly arguable point seems to me that the judge's order in relation to the larger pension, with its additional (albeit future) payment of capital to the Respondent was wrong in principle, given that the respondent was to receive the one tangible capital asset, the former matrimonial home.

73. Once again, however, I do not think that this criticism of the judge bears analysis. The principle of a pension sharing order was not in issue. Counsel for the appellant was arguing for a maximum of 25%, and counsel for the respondent for 50%. Given that difference, it is difficult to see how the judge could be criticised, as a matter of discretion, for making an order for 35%. Furthermore, a pension sharing order does not bring immediate benefits for the respondent. What it means, as I understand it, is that the respondent will be entitled to the benefits of the order as and when she herself reaches retirement age. Given the very substantial discrepancy between the ages of the parties, there is plainly a need to make provision for the respondent by way of pension provision, and a pension splitting order was plainly appropriate.

74. The only part of the judge's order which might be unfair would relate to periodical payments. This, however, is essentially a matter of quantum, and any order for periodical payments is variable. The difficulty faced by the judge was that she had no proper information as to the appellant's income, and had to estimate it at not less than £100,000. Against that background, the order which she made cannot be said to be unreasonable or disproportionate. Moreover, if the order for periodical payments puts the appellant in difficulty in relation to income, his remedy, in my judgment, is not to appeal but – as the judge told him – to apply to vary or discharge the order. He will, however, have to do so, not on assertion, but on evidence.

75. I am impressed by the fact that the judge recognised that the appellant might have a point on periodical payments, and specifically offered him the opportunity to have these reconsidered pending the final hearing - see paragraphs 13 and 25 above. As I have recorded, the appellant did not avail himself of this opportunity.

76. The jurisdiction to vary the periodical payments order remains open. I repeat, however, that if the appellant wishes to avail himself of it, he must give full, frank and clear disclosure of his true financial position. Mere assertions will not suffice.

77. As far as the death in service benefit is concerned, that seems to me an exercise of discretion which, on the facts of this particular case was within the judge's discretion and does not warrant the attention of the full court.

78. I am of the view, therefore, that any remedy which the appellant has does not lie in this court but in the court below by way of an application to vary or discharge the order for periodical payments. I do not think it can be said that the judge's decision was even arguably wrong, and an appeal would, in my judgment, have no realistic prospect of success.

79. All the applications for permission to appeal are, accordingly, refused.