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Abuchian v Khojah [2014] EWHC 3411 (Fam)

Application by respondent husband to set aside a grant of leave under Part III of the Matrimonial and Family Proceedings Act 1984 to apply for financial relief under that Part. Application dismissed.

Neutral Citation Number: [2014] EWHC 3411 (Fam)
Case No. FD14F00249/365


Royal Courts of Justice
Date: Monday, 29th September 2014


B E T W E E N :

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MR. M. POINTER QC and MRS. R. CAREW POLE  (instructed by Schillings Solicitors)  appeared on behalf of the Applicant.
MR. T. AMOS QC  (instructed by Stephenson Harwood LLP)  appeared on behalf of the Respondent.


1. This is my judgment on an application by the respondent husband to set aside a grant of leave under Part III of the Matrimonial and Family Proceedings Act 1984 to apply for financial relief under that Part.  That leave was granted by Sir Peter Singer on an ex parte basis on 28th July 2014. 

2. Before I turn to the background of this case I should set out the relevant legal principles.  In the Supreme Court decision of Agbaje v Akinnoye-Agbaje [2010] UKSC 13, [2010] 1 FLR 1813 at para.33 Lord Collins of Mapesbury said this:

"In the present context the principal object of the filter mechanism is to prevent wholly unmeritorious claims being pursued to oppress or blackmail a former spouse.  The threshold is not high, but is higher than 'serious issue to be tried' or 'good arguable case' found in other contexts.  It is perhaps best expressed by saying that in this context 'substantial' means 'solid'."

3 In my own decision of CG v IF [2010] 2 FLR 1790 I made some attempts to explicate these seemingly contradictory sentences.  I say "seemingly contradictory" because in the first sentence which I have quoted it is obvious that Lord Collins intends that the bar established by the filter mechanism to be set very low to filter out the cases that he describes as wholly unmeritorious.  In the next sentence however, and in seeming contradiction, he states that whilst the threshold is not high it is higher than the familiar tests used in judicial review proceedings or in appellate proceedings, namely a serious issue to be tried or a good arguable case.  This seems to me to suggest that a case that is just a good arguable case would nonetheless not meet the threshold, but by the same token it is difficult to see how a case that is a good arguable case would be anything other than meritorious.

4. The third sentence introduces a different adjectival description to the test to that used in the Statute, namely "solid" as opposed to "substantial", but Lord Collins does not explain what the difference is between the two heuristics.  In CG v IF I suggested at para.8 that there was, in fact, in terms of linguistics little to choose between the concept of substance and solidity and went on to suggest that a case would not pass the threshold of either substance or solidity unless the court could confidently state that there was, on the available evidence, a better than evens chance that the applicant would ultimately succeed in obtaining a substantive order.

5. As I have explained, although I have subsequently been roundly criticised for that view, I am pretty unrepentant about it.  In my opinion it is very difficult to say that a case that has a less than evens chance of success is either substantial or solid; indeed, I would go on to say that a case that has a less than evens chance of success is, in terms of applying elementary logic, both insubstantial and tenuous.  However it is plain that the phrases here (and this is probably a defect in my understanding for not appreciating it) are, in fact, terms of art; that "substantial" does not, in fact, mean substantial; and "solid" does not, in fact, mean solid. 

6. This was made very clear to me by the decision of the Court of Appeal in Traversa v Freddi [2011] 2 FLR 272 where I was found to have been not wrong but doubly wrong.  The second aspect of error that I fell into was my view set out in para.13 of CG v IF where I stated that, in my view, in a borderline case it would be appropriate for the court to adjourn the ex parte application to be heard inter partes.  That suggestion by me was also roundly dismissed as erroneous by the Court of Appeal in Traversa v Freddi. 

7. In Traversa v Freddi it was made abundantly clear by the Court of Appeal that the object of the filter is to weed out those applications that can truly be described as unmeritorious.  In para.30 Thorpe LJ said this:

"It is clear that the section 13 filter is there to exclude plainly unmeritorious cases and, although, in the evaluation of substance, regard must be paid to overall merits, it does not call for a rigorous evaluation of all the circumstances that would be considered once the application has passed through the filter."

At para.31 he said this:

"At the hearing of the Section 13 application the judge will of course be conscious of the fact that, once through the filter, the applicant will have to clear a number of fences that the following Sections erect.  Unless it is obvious that the applicant will fall at one or more of the fences, his performance at each is better left to the evaluation of the trial judge."

8. This demonstrates to me that if there are issues of fact, or if the case is not obviously one where there would be a later exclusion, then the case should be allowed to go forward.  In his judgment at para.52 Munby LJ (as he then was) said:

"Thorpe LJ has referred to what Mostyn J had to say on the topic in CG v IF at para.8, where he suggested that 'substantial' and 'solid' require the court to be able to say 'confidently' that the probability that the applicant will achieve a substantive order were the matter to be tried is 'greater than or equal to 50%'.   Mostyn J added (para.12) that where on an ex parte application, 'The needle appears to be flickering around the 50/50 probability mark' the court should be prepared to adjourn the application for leave to be heard inter partes, presumably in accordance with the views about procedure which he had set out earlier …"

At para.53:

"With the greatest of respect to him, I have to say that Mostyn J was doubly wrong.  It was not for him to add some gloss; and the gloss he added was not merely wrong but quite inconsistent with Lord Collins' authoritative guidance in at least two respects.  In the first place, a 'substantial' or 'solid' case, contrasted with a case which is 'wholly unmeritorious', is not a case requiring a 50% chance of success, and with all respect to Mostyn J's view Lord Collins said nothing to suggest it is.  The second point is that the kind of inter partes hearing apparently contemplated by Mostyn J is simply outside the scope of what Lord Collins had in mind.  To repeat, unless it is clear that the respondent can deliver 'a knock-out blow' the court 'should' adjourn an application to set aside to be heard with the substantive application."

9. The reference to a knock-out blow is to the final words of Lord Collins in para.33 of Agbaje where he stated this:

"In an application under section 13, unless it is clear that the respondent can deliver a knock-out blow, the court should use its case management powers to adjourn an application to set aside to be heard with the substantive application."

10. In para.54 of Traversa v Freddi Munby LJ (as he then was) stated this:

"I add only this. The emergent practice of listing or directing applications for leave to be listed on notice for hearing inter partes is compliant neither with the clear requirements of FPR 1991 Rule 13.7(1) nor, unsurprisingly, given the terms of the rule, with the authoritative guidance given by the Supreme Court.  The practice should stop.  The application for leave should be listed ex parte for a hearing which can be appropriately brief, as can the judgment either giving or refusing leave.  Those minded to apply to set aside the grant of leave should be mindful of what Lord Collins said.  Such an application, if nonetheless pursued, should be given an appropriately short listing to enable the respondent to demonstrate, if he can – and it will not take all that long, which is why the listing can be appropriately short – that he has some 'knock-out' blow.  Unless the respondent can demonstrate that his application, if not dismissed then and there, should be adjourned to be heard with the substantive application."

11. Today nobody is suggesting that the application here should be adjourned for a substantive application.  Mr. Amos QC strongly argues that it should be granted, that the leave should be set aside and there should be no de novo consideration of the question of leave.  In effect, the Part III application should be halted now and be incapable of revival.  Mr. Pointer QC says that the set aside application should be dismissed and that the leave granted by Sir Peter Singer should stand. 

12. In determining the issue before me I, of course, do not stray back into my previous mind-set as articulated in CF v IF, and I take as authoritative, without any question, what the Court of Appeal has said in Traversa v Freddi.  The case to set aside can only succeed if, in the words of Thorpe LJ, the claim can be demonstrated to be plainly unmeritorious and where it is obvious that this applicant will fall at one or more of the fences that she has to surmount at trial. 

13. In like terms the guidance given by Munby LJ (as he then was) is that there is no question of it having to be demonstrated on a leave application that the case is more likely than not to succeed at trial.  The bar is set low and in these circumstances the set aside test of having to demonstrate a knock-out blow must be seen clearly in that context. 

14. With these principles in mind I now turn to the relevant facts.  The husband is Saudi Arabian and is aged 89.  The wife is Lebanese in origin and aged 63.  The parties have been married and divorced and remarried.  They had two children; one child has died.  During their marriage the parties lived predominantly in Saudi Arabia although they had properties in France and in London.  The amount of time they spent at the property which was owned by a company which is owned by the husband is in dispute.

15. In September 2013 the wife came to London on a permanent basis, the parties having separated and their marriage having collapsed in August 2013.  In May 2014 the husband divorced the wife by Talaq under the Saudi procedure.  This is a proceedings divorce entitled to be recognised here under the Domicile and Matrimonial Proceedings Act 1973.  Following her arrival here in September 2013 the wife formed the view that she would wish to obtain an investor visa. 

16. She made an application on 27th March 2014 for such a visa which was submitted by solicitors instructed by her here to the British Embassy in Beirut.  This stated that her permanent residential address was in Lebanon.  The address given in Beirut is, in fact, her sister's address.  She stated that she had lived at that address for nine years and three months which is obviously erroneous because she had lived predominantly in Saudi Arabia up to that point.  It revealed that she had been in this country for one day between 21st and 22nd September 2013.  She had been here between 24th September and 29th December 2013 and between 2nd January 2014 and 21st March 2014.

17. In the application she made it clear that the place where she was staying in Beirut (which is the address she has given and described as her permanent residential address) was her sister's house.  She asked for an investor visa for three years initially.  That was granted in May 2014. 

18. In the meantime, on 7th March 2014 the wife received letters from both the husband and from the Netherland Antilles company, the bearer shares of which are held for the husband, requiring her to quit the family home in London.  In response to this ten days later on 17th March 2014 she issued proceedings under the Married Women's Property Act 1882.  Whether, in fact, it was necessary for her to have done that, as opposed to simply seeking to register the restriction which was a step she also took at the Land Registry, is debateable.

19. At all events she made that application and on the same day she also made an application for a freezing injunction and for an occupation order under the Family Law Act 1996.  After two interlocutory hearings the matter came before Sir Paul Coleridge on 13th May 2014 where he continued the Family Law Act orders already made for six more months.  He made certain comments during the course of argument on which Mr. Amos has placed much emphasis.  In particular he places emphasis on the fact that Sir Paul may, or may not, have expressed the view that this was a "deeply, deeply" Saudi case, and that in his view by virtue of that, should leave be granted under Part III, it should be accorded different treatment to a case which had more connection with this country. 

20. I have to say I am aware of that particular view of Sir Paul which was expressed in a decision of his in Z v Z, but I do not agree with it.  In my view if leave is granted under Part III and the other fences set up by virtue of s.16 are surmounted then the court should apply uniform justice irrespective of the origins of the parties before it.  It could not possibly be right, in my view, to apply different standards to Arabs, Jews and Christians or Frenchmen or Saudis or Australians, depending on who happens to be before the court.  Be that as it may, the fact that Sir Paul may, or may not, have expressed the view this was a "deeply, deeply" Saudi case has assumed centre stage in the mind of the husband and those advising him.

21 On 17th July 2014 the wife made her application under Part III.  It was supported by a witness statement which did not exhibit to it the application of 27th March 2014 for an investor visa which I have referred to.  I think it would have been better had that document been exhibited but I do not place very much emphasis on that default in circumstances where, in paras.44-48, the wife had made a pretty clear exposition of her intentions and of the history of her immigration application.  In para.45 she said:

"My mother, sister and brother-in-law live in Beirut but on the occasions when I visit them I do not feel safe because of the precarious security situation there as I explained above, and so I do not intend ever to live there.  I do retain a Lebanese identity card and in the spring of this year I had to spend 28 days staying in Beirut in order to apply for my U.K investor visa.  The rules required that I apply for the visa when out of the country.  It was a great relief to me when my documentation was in order and I was able to leave Lebanon.

While I have always enjoyed spending time in the Cannes property because it is a beautiful property and the climate is nice, it is a holiday home and has never been a permanent base.  I much prefer and feel more at home in London than Cannes.  There is no other country or place with which I have any meaningful or substantial connection.  I intend therefore to live permanently in London for the rest of my life.  To that end I obtained in May 2014 an investor visa which entitles me to remain in the United Kingdom for a renewable period of five years.  I now produce a true copy of my visa.  It is my intention to seek in due course leave to remain here permanently.  I simply wish to live out the rest of my life in a safe and familiar environment."

22. The visa was produced which showed that it was, in the first instance, only for a period of five years.  Mr. Amos does not shrink from making serious criticism of the wife and her advisors for not having exhibited the application form for the visa as opposed to the visa itself.  Mr. Amos has said that it is surprising that it was not before the court, even astonishing that it was not before the court.  He says that for it not to be before the court was misleading and for this reason, and perhaps for this reason alone, the leave granted should be set aside and I should not go on to reconsider the matter de novo because the scale of dishonesty and lack of candour is so great.  I do not agree with any of this. 

23. In my judgment the wife gave a perfectly satisfactory explanation of her immigration history in the passage in her witness statement to which I have referred.  I think it would have been better to make assurance doubly sure if the application form had been produced and exhibited.  Had it been exhibited I have absolutely no doubt that it would not have led to any kind of doubt forming in the mind of Sir Peter that this was an appropriate case for which leave should be granted. 

24. In relation to the alleged failure of candour in relation to the Baker & McKenzie letter, I reject the claim of the husband.  That is not a knock-out blow on any view.  It does not come anywhere near to disturbing the grant of leave, the threshold for which I have already stated is set very low.

25. There are a number of points that are made by Mr. Amos suggesting why leave should be set aside.  He said that Mr. Pointer misled Sir Peter Singer by representing to him that Sir Paul Coleridge did not know that the wife hotly contested the husband's case on the dates of residence here when he expressed, or perhaps did not express (the transcript is ambiguous), his view that this was a "deeply, deeply" Saudi case. 

26. Mr. Pointer accepts that some confusion seems to have arisen here and the representation that was made was not strictly accurate and he apologises for that.  That apology should be the end of the matter because this is so insubstantial as not to warrant any further examination at all.  Whether Sir Paul formed the view with or without the knowledge that the wife challenged strongly the husband's dates of residence case is, in my view, utterly irrelevant to the question of whether Part III leave should or should not have been granted.

27. Mr. Amos then complains that in referring to the property in oral submissions Mr. Pointer over-majored on the statement by the husband in his affidavit made under the s.17 proceedings that he owned the property.  Later in the same affidavit he made it clear that the formal ownership of the property was vested in the Dutch Antilles company and there had apparently been later letters making that abundantly clear. 

28. The fact is, however, that in his affidavit the husband did state with arresting simplicity that he owned the apartment.  In circumstances where he admits that the company is not a trading company, and was provided with all the money with which to buy the property, it is not hard to see why perhaps that mistake (if it was indeed a mistake) was made.  This case has all the hallmarks of an agency or nominee situation akin to that which was found to exist by the Supreme Court in the case of Prest v Petrodel.

29. In relation to that particular criticism Mr. Pointer refers to the note that he and Mrs. Carew Pole put before the court in which they made it absolutely clear to Sir Peter Singer that the title of the property was vested in the Dutch Antilles company.  They say in para.20 of their note:

"Of course it is the case that the title to the penthouse is registered in the name of Serpentine.  Although the husband now seeks to take maximum advantage of the veil of incorporation and has already made reference through counsel of Prest v Petrodel resources, the wife will say this is a case where the corporation is a base nominee."

30. In relation to this particular criticism I have to confess I do not even understand it. 

31. The next criticism is in relation to what Mr. Pointer said about a completely unnecessary piece of satellite litigation at the Land Registry.  Mr. Pointer represented to Sir Peter Singer that it was the company who was pressing for those proceedings to come to trial, when, in fact, the company's stance was that it should await determination of the issues in the Family Division.  Mr. Pointer admits there was a small mistake there and apologises for that but, again, it has absolutely nothing to do with the question of whether leave should be granted let alone whether it should be set aside.

32. The fourth point was that the defence of the husband to the s.17 proceedings was not shown to Sir Peter in circumstances where reference was made to the reply.  Mr. Pointer explains that the reference to the reply was not made in the context of trying to make merit based arguments about the s.17 proceedings but only in order to demonstrate that Mr. Amos was possessed of a junior, although the relevance of that entirely escapes me.

33. There are some other points made by Mr. Myers in his witness statement at para.32 but, in my view, they are completely meritless and untenable. 

34. The five points, whether taken individually or together, in my view come nowhere near to the threshold of the knock-out blow referred to by Lord Collins and confirmed by the Court of Appeal in Traversa v Freddi.  In my opinion this set-aside application does not even begin to get off the ground.  It should never have been brought and it is dismissed.