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Maughan v Wilmot [2018] EWHC 273 (Fam)

Judgment of Mostyn J in which he backdated and capitalised periodical payments, ordered costs, froze assets and made injunctions against the respondent.

Case No:  TN99D00733
Neutral Citation Number: [2018] EWHC 273 (Fam)


Courtroom No. 50
Royal Court of Justice

2.47pm – 3.13pm
Thursday, 25th January 2018



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B E T W E E N:

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MR J SWIFT appeared on behalf of the Applicant
No appearance on behalf of the Respondent
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1. On 27 October 2017, the Court of Appeal dismissed Captain Wilmot's appeal in which he had maintained that all of the orders made in this case were null and void because they had been served on him by email.  Enormous costs were incurred in those proceedings which the respondent was ordered to pay to the applicant.  The Court of Appeal's decision was translated into an order which was made on 27 October 2017 and which was sealed on 1 November 2017.  That order recorded the order for costs to which I have referred and directed that the sum of £40,000 which the respondent had been required to pay into court as security for the costs of his appeal should be paid out to the applicant's solicitors. 

2. The order recorded that the stay on the applicant's application for variation of the periodical payments order for the youngest child of the family (who I shall refer to in this judgment as E) was discharged.  The extended civil restraint order which I had made on 15 April 2014 and extended on 23 March 2016 and extended again on 23 May 2017 was extended by the Court of Appeal until this hearing.  As was the freezing order which had originally been made by Mr Justice Bodey on 6 December 2013 and which had been on a number of occasions varied and extended. 

3. The extension ordered of the civil restraint order and the freezing orders made by the Court of Appeal were directed to endure until this hearing before me.  Notwithstanding that he is subjected to an extended civil restraint order Captain Wilmot has purported to issue a number of applications and has bombarded the court, my clerk, the applicant's solicitor and the applicant's counsel with an extraordinary volume of emails.  One cannot help but note the irony that he should use the medium of email for his campaign of bombardment in circumstances where his argument in the Court of Appeal was that all the orders that had been made against him were invalid because they had been served on him by email.  He has sent directly to named members of staff in the court office since 27 October 2017 27 emails.  He has sent to the court's generic email address in that period, 36 emails.  He has sent to my clerk in that period, 26 emails.  He has sent to the applicant's solicitor, 26 emails and he has sent direct to the applicant's counsel Mr Swift, 5 emails. 

4. He has purported to issue applications: two applications on 5 December together with a further application which he sent directly to my clerk on 9 January.  In relation to that latter application he sought that this hearing be adjourned; that there should be an immediate stay granted on all orders in the case and; that there should be a return of all monies held by the applicant's solicitors made 'under without jurisdiction orders'. 

5. I granted permission to Captain Wilmot to make this last application pursuant to the terms of FPR Practice Direction 4B, but I directed that it would be heard today, and that Captain Wilmot must attend the hearing personally.  Captain Wilmot has not attended the hearing today even though it is plain that he is extremely well aware of it and nor has he instructed counsel to represent him, notwithstanding that in the proceedings before me which led to my judgment on the validity of service and in the proceedings in the Court of Appeal he instructed leading counsel. 

6. Yesterday an email was received by my clerk which was copied to the applicant's solicitor not only at her business address but at her personal email address in which he said this: 

'Dear Ms Judd, should you, your judicial colleague, Mostyn J go ahead regardless with hearing tomorrow and despite being advised of no jurisdiction due to 1. German Family Court having sole and exclusive jurisdiction over the Maughan children.  2.  Nothing has been served on me as required by all court rules, the law and EUHR 6.3.  Your whole case appears to be fraudulent which the Family Court also has no jurisdiction to hear.  My expert legal advisers (who cannot attend on 25 January has also advised) require a full transcript of the (No 2) proceedings and earliest draft of any order made so that we can take the appropriate action.  Sincerely Captain Richard Wilmot (Upon expert and counsel's advice)'. 

7. That email is of a theme consistent with the many emails which have been received by the court, by my clerk and by the applicant's lawyers. 

8. Since the hearing before the Court of Appeal (who I understand have also been assailed by numerous emails from Captain Wilmot) Captain Wilmot has maintained, as the email from which I have quoted demonstrates, a position that the German Family Court has, in proceedings commenced before it, determined that it had sole and exclusive jurisdiction over this case and over these children and that it was therefore non-permissible for this case in this jurisdiction before this court, which has been seised of these proceedings for many years, to proceed.  Even if the German court had made such a pronouncement, which I doubt very much that it would have made, then that would not destroy the jurisdiction of this court which is extremely well established.  But it appears from the evidence that has been adduced on behalf of the applicant that what Captain Wilmot states is blatantly untrue. 

9. The letters from the applicant's German lawyer, who must be taken to be telling the truth (because were he not he would be in grave professional difficulties) demonstrates perfectly well that the Family Court in Germany did not in any sense seek to arrogate to itself jurisdiction over the question of child maintenance.  It dealt only with the question of parentage of the youngest child of the family which Captain Wilmot has been denying for years.  It pointed out to Captain Wilmot that the statute of limitations in fact prevented him from proceeding with his application; it advised him that it would be appropriate for him to abandon his application; but it nonetheless recorded an agreement between the parties, who were represented, that Captain Wilmot and the child would submit to DNA testing.  That duly took place and the evidence adduced on behalf of the applicant is the report from the University of Bonn which having analysed DNA which was unquestionably taken from both Captain Wilmot and his daughter concluded that the probability that Captain Wilmot was the true father of the child E was 99.999999%.  Therefore, the assertion made by Captain Wilmot that the German court had somehow assumed sole jurisdiction in this case and that this court had no jurisdiction is demonstrated to be blatantly untrue.  I gave Captain Wilmot the opportunity to come here to argue this extraordinary claim which he has chosen not to take up.  Even if he is flying an aeroplane for Turkish Airlines in Saudi Arabia there is no reason whatsoever why he could not have sent counsel to represent him, as he has been accustomed to do for the better part of two years.  Therefore, I readily conclude that his application for an adjournment of this case must be dismissed. 

10. The applications made by the applicant are summarised in Miss Judd's statement and are reiterated in the skeleton argument of Mr Swift.  I deal first with the question of the applicant's application for variation of the periodical payments order for the youngest child of the family.  Her elder siblings had the benefit of periodical payments order in their tertiary education, and in 2015 the applicant applied that the youngest child should receive an equivalent benefit.  However, the application for variation of the order to provide that it should extend into tertiary education was derailed by Captain Wilmot's jurisdictional challenge whereby he challenged the legitimacy of email service. 

11. I have mentioned earlier in this judgment that the application for variation was stayed but that stay was lifted by the Court of Appeal.  That application is before me and I am wholly satisfied that there is no good reason why the youngest child should not receive the equivalent benefit of periodical payments to that which her older siblings received.  This should cover the period of tertiary education which runs from 1 July 2017 to 30 June 2019. 

12. The amount in question that should be awarded for that period is set out at section I of the schedule prepared by the applicant's solicitor which is in the court bundle at page 149B.  Essentially, it asks for £629.31 per month for an initial period from 1 July 2017 rising with indexation to £694.12 per month from 1 January 2017.  That I do order.  That means the effect of backdating gives rise to immediate arrears of £12,799.42. 

13. The applicant seeks that the future payments to the end of tertiary education next year should be rolled up and paid up-front now.  That is an unusual order but on the facts of this case, where Captain Wilmot has done everything in his power for years to avoid his responsibilities for child support, I am satisfied that it would be an appropriate order for me to make.  A further 17 months at £694.12 comes to £11,800.04 and so I award a lump sum in respect of the tertiary education, both past and future, of the child E totalling £24,599.46. 

14. The claims by the applicant are as follows:  By virtue of the calculation of arrears in the bundle there is, subject to payments which have been received which I will come to, a total arising of £113,843.40 since 1 July 2010.  This includes certain arrears which are more than one year old for the second child of the family and indeed for the child E whose award I have just made.  In the circumstances of this case, it is manifestly appropriate for me to give permission for these arrears of more than one year old to be enforced.  The totality of these arrears is, as I say, £113,843.40.  The liability of the respondent for costs as set out in the schedule at pages 150 and 151 is the astonishing figure of £290,709.25.  These are the costs that have been incurred and which have not been recovered since the hearing on 27 February 2013. 

15. It can be seen that the amount of costs is nearly three times as much as the amount of child maintenance, which shows the utter folly of the course of action adopted by Captain Wilmot.  The estimate of the costs of the applicant's solicitors from 1 November 2017 is £22,638.20.  There is no schedule of those, but I direct that that should be filed by 4pm on Wednesday, 31 January 2018.  In relation to the German proceedings which are of course incidental to the proceedings here the applicant has incurred costs of £5,380.05 and I have awarded in relation to the tertiary education support for the child E £24,599.46.  This all totals, rounding up to the nearest pound, £457,681.  The costs of the receiver and of the solicitor he instructs, Howard Kennedy, have been given to me in the sum of £135,917.33.  Again, they will be detailed in a schedule which will be filed at court and served on Captain Wilmot by 4pm 31 January 2018. 

16. I have been given a breakdown of them, but the schedule will provide an even further breakdown.  Therefore, the total of the applicant's claims for child support, arrears of child support and for costs and the receiver's claims is £593,598. 

17. Pursuant to the receivership, the receiver has recovered for the benefit of the applicant a total of £396,929 so there is therefore a deficit of £196,669 to the nearest pound.  That is the sum which should be paid now by Captain Wilmot and on payment of that, and of any further costs that may be incurred, and one has to fear the worst, that will bring total and complete closure to this long-running case.  That figure excludes interest which would otherwise fall due on arrears and indeed unpaid costs orders but in the interest of seeking early closure the applicant is not pursuing such interest. 

18. In my judgment, this is the sum which should now be awarded in favour of the applicant and against Captain Wilmot.  I make an order authorising the receiver to liquidate from the frozen funds sufficient to discharge that total award in favour of the applicant and the receiver. 

19. Pending the liquidation of the sufficient funds the freezing order will remain in place in the form modified by Mr Swift which I approve.  It will extend to Captain Wilmot's properties; it will extend to his funds in Barclays Bank; his pension money with Aegon in Edinburgh; his pension money with Curtis Bank and any monies that he holds with insurance companies.  It will not extend to any funds with Turkish Airlines; that is no longer pursued. 

20. The amount frozen will obviously have to be appreciably more than £196,669 given the propensity of Captain Wilmot to challenge everything and anything at huge expense.  In my judgment, it is appropriate given the enormous futile waste of costs at the Court of Appeal for the sum of £300,000 to be frozen.  Once the award has been paid and any further costs discharged then the freezing order can be lifted. 

21. I am asked to make an order restraining Captain Wilmot from communicating with the applicant's solicitor on her private email address.  It is completely unacceptable that this form of harassment should take place.  The application is made on behalf of the applicant to protect her servant or agent, namely her solicitor, and I am satisfied that is appropriate to grant that order. 

22. I have in this judgment recorded scientific evidence that demonstrates beyond any doubt at all that Captain Wilmot is the father of the child E.  That will appear in this judgment which will not anonymised beyond referring to the child as E, but for the avoidance of any doubt, I give permission for the judgment to be disclosed.  I mention this because in 2016 Captain Wilmot gave a highly inflammatory interview to the Daily Mail about this long-running case. 

23. That concludes this judgment.

End of Judgment

Transcript from a recording by Ubiqus
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