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Kimber v Kimber [2006] EWCA Civ 706

The Husband appealed an order which he contended refused his application to be released from an undertaking not to leave England and Wales. Permission to appeal against order is refused.

Court of Appeal: Brooke LJ, Wilson LJ, Hallett LJ (11 April 2006)

The Husband appealed an order which he contended refused his application to be released from an undertaking not to leave England and Wales. Permission to appeal against order is refused.

In ancillary relief proceedings the Husband had removed the parties' joint assets from the jurisdiction without the Wife's knowledge or consent. The Husband had gone to live in France and elected to take no part in the proceedings which resulted in an order for transfer of the FMH to the Wife, a lump sum of £333,000 bringing the Wife's capital up to half of the perceived joint assets and periodical payments at £42,000 pa. The Husband did not comply with any part of the order.

When the Husband was temporarily in UK he was arrested by chance and the Wife obtained orders for his detention. The Husband then gave undertakings not to leave until further order, which had remained in force since December 2004. The Husband issued an application to be released from this undertaking, which was heard by Coleridge J on two separate occasions. In the meantime the Husband applied for leave to appeal the final ancillary relief order. In addition to the Wife's non-disclosure of her remarriage, the Husband also alleged he had removed the parties' joint money into an entity in Liechtenstein with a view to obstructing the Wife's claims. Allegedly the foundation was constructed on terms that the Husband was to receive £40,000pa but the capital was to be held irrevocably for his two adult children from a previous marriage. Therefore he submitted he had no right to the capital or for it to be restored to him. He did not have any documentation regarding the transfer and creation of the foundation. At the hearing of his application to be released, the subject of dialogue between the Husband and Coleridge J focused on one short trip to Liechtenstein and Zurich in order to obtain the necessary paperwork to prove his assertions. Coleridge J adjourned the matter, ordered the Husband to file an affidavit setting out his specific proposals for this trip including what security he could provide for his return and refused his application.

The Husband appealed. He believed his application had been entirely refused and argued that the court had no continuing jurisdiction to cause him to be detained.

Subsequently the Wife issued an application for committal for breach of various orders made against the Husband.

On appeal the Husband relied upon the right of European citizens to free movement around the states and stressed the jurisdiction to detain a person can be exercised only in the short term and as ancillary to a free-standing process which his absence would otherwise frustrate.

Held, dismissing the appeal, that the Husband had not raised his arguments in relation to the wider issue, namely whether there was any justification for his continued detention, before Coleridge J and therefore the Appeal court could not say one way or another whether the Judge was wrong in relation to a decision he never made and to which he heard no argument.

At the hearing before Coleridge J the Husband expressly assented to the Judge's treatment of the issue as a narrow question of one short trip. He did not invite the Judge to peruse his skeleton argument which contended for a wider order. The Husband's revised arguments before the Court were proper arguments but had not been properly raised before the court below and thus had not been addressed. Coleridge J was expressly adjourning the matter to a date when evidence would be available on basis that the only part of Husband's application, which was sought to be pressed, was for permission to make one short trip. The refusal of the application on the face of the order was inconsistent with the fact the Judge was expressly adjourning the matter. The court noted it had power to restrain a party from leaving the jurisdiction in certain circumstances. However the question was inappropriate and entirely academic given the Wife's application for committal.

Wilson LJ was surprised the Husband had not applied for permission to appeal before Coleridge J. Had he done so Coleridge J would have detected his aspiration for a higher order. Wilson LJ highlighted the importance of the Practice Direction supplementary to Part 52 of CPR which provides that an application for permission should be made orally at the hearing at which the decision is made. This was further stressed in Re T (Contact: Alienation: Permission to Appeal) [2003] 1 FLR 53. However he gave the Husband the benefit of the doubt.

The Husband must remain in jurisdiction pending the Wife's application for committal but as soon as that is resolved the wider issue as to his detention must be determined. Wilson LJ advised Coleridge J to determine whether the order for the Husband's payment to Wife of a lump sum should stand before future efforts for enforcement are made.

Permission to appeal refused.

Cases referred to in the judgment:
Kimber v Brookman Solicitors [2004] 2 FLR 221
Re T (Contact: Alienation: Permission to Appeal) [2003] 1 FLR 53
B v B (Injunction: Restraint on Leaving Jurisdiction) [1997] 2 FLR 148

Digest prepared by Lynsey Cade-Davies

Read the full text of the judgment here