A litany of procedural defects

Family Law|January 31st 2017

Sometimes it can be surprising just how far a case can stray from the procedural requirements designed to ensure fairness to the parties. I briefly mentioned the case Iqbal v Iqbal in my weekly review here last Friday, but I think the matters that arose in the case were so serious as to merit a full post.

To give some credit to the various judges whose decisions were criticised by the Court of Appeal in Iqbal, I understand that for the most part neither party to the proceedings was represented, and so those judges did not necessarily have the assistance of proper legal submissions on behalf of the parties, in particular the husband, who was the ‘victim’ of the procedural errors committed by the court.

Those procedural errors were so many that I could not possibly set them all out here. Indeed, in his leading judgment Sir Ernest Ryder, the Senior President of Tribunals, did not himself set out all of the defects, only highlighting “the most glaring omissions that characterise the decision making process in this case.” I will set out here what I find to the “the most glaring of the most glaring”.

But first a little background.

The case concerned a wife’s application for financial remedies following divorce. The parties married in a religious ceremony in 1993 and in a civil ceremony in New York in 1996. There are three children of the marriage. The parties lived with, and supported by, the husband’s wealthy extended family in Pakistan until the summer of 2007 when they moved to New York, after becoming estranged from the extended family. In 2009 the couple moved to London. The marriage came to an end in 2009 and in 2010 the wife issued divorce proceedings. Decree absolute was pronounced on 12 August 2010.

The following orders were made in the financial remedy proceedings:

1) On 13 December 2010 the husband was ordered to pay to the wife interim periodical payments (i.e. maintenance) in the sum of £10,000 per calendar month.

2) The husband did not pay, and the wife sought to enforce payment by way of the judgment summons procedure. Orders were made against the husband on judgment summonses on 8 April 2011, 28 February 2014, 31 October 2014 and 1 December 2014.

3) The husband appealed against the interim maintenance order, but his appeal was dismissed, on 25 July 2011.

4) On 27 March 2015 the court made a final order on the wife’s financial remedies application, requiring the husband to pay to the wife a lump sum of £3,220,000 by 1 May 2015, arrears of periodical payments of £530,000 by the same date and future periodical payments in the sum of £10,000 per calendar month.

It is critical to note that the husband returned to Pakistan in 2011 and did not attend any of the hearings since the one at which his appeal was dismissed, at paragraph 3 above.

As Sir Ernest Ryder said:

“The extent to which the husband is participating in rather than actively or passively avoiding the proceedings in this jurisdiction is an issue in the proceedings.”

The husband appealed to the Court of Appeal against all of the above orders. Amongst the findings of the Court of Appeal were the following:

1) The husband was excused attendance at the interim maintenance hearing (paragraph 1 above), having filed his evidence in accordance with the court’s directions. The wife attended and made submissions based upon a signed letter that she relied upon that had no statement of truth on its face. She was not sworn to give evidence. In her submissions she informed the court about matters about which the husband had no advance notice and with which he would disagree.

2) Given the fact that he had not attended any hearings since 2011, it would have been appropriate for the court to consider how his evidence should be received at the final hearing, for example by video link, but the court did not consider this.

3) The court allowed the wife to file a statement setting out her evidence just eight days before the final hearing, nearly four months after the court had directed she should file it. Further, she did not serve it on the husband.

4) The husband alleged that the wife omitted all of the documents that he had filed with the court from the bundle of documents that the court required her to prepare for the final hearing. This could not be checked by the Court of Appeal, as the bundle no longer exists. However, Sir Ernest Ryder did note from the transcript of the final hearing that the judge made no reference to the husband’s documents or their contents.

5) The judge at the final hearing relied upon the wife’s unsworn submissions and documents, without making real attempt by to test anything that the wife said.

6) The judge at the final hearing failed to give a formal judgment. Accordingly, said Sir Ernest Ryder:

“…it is not possible to deduce what findings of fact were made by the court and what evidence was accepted or rejected in that process. There are major questions that are unexplained and which needed determination, for example: who had the legal and beneficial ownership of certain assets in Pakistan; what, if any, resources were available to the husband from his extended family; and what was an inherited pre-marital asset and what was part of the marital acquest.”

7) As to the judgment summonses, on pretty much each occasion the court had failed to find it proved, as it was required to do, that the husband had the means to pay and had refused or neglected to do so.

In short, the Court of Appeal found that “on any number of bases” the decision made at the conclusion of the final hearing was procedurally unfair and should be set aside. Similarly, the judgment summons hearings suffered from serious procedural defects and were also set aside. As to the interim maintenance order, the husband would be given the opportunity to argue at the new final hearing that that was wrong, and that the final order should be adjusted to reflect that.

The full report of Iqbal v Iqbal can be read here.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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