Author: Alexander Chandler KC

It’s often the financial remedy cases that involve non-family barristers or judges, which are the most interesting. There’s something about an outsider’s perspective which can illuminate legal principle and remind us that ‘…the Family Court is not a desert island’.

Lord Sumption put it best in his speech to the At A Glance conference (‘Family Law at a Distance’, 2016) when he wrote:

“…I have always taken the view that legal specialisations are essentially bogus. At the bar, I liked to trespass on other people’s cabbage patches. As a judge I do it most of the time.”

On 16 May 2025, the Court of Appeal handed down judgment in Awolowo v Awolowo and Linksave Ventures [2025] EWCA Civ 641 in which the earlier decision of HHJ Vincent (sitting as a s.9(1) judge) was overturned. The Court of Appeal comprised Moylan LJ and two ‘non-family’ judges (Popplewell LJ, Sir Christopher Floyd). H retained family counsel (Mr Paul Infield) while the other parties (W and the intervening company [IV]) were represented on appeal by leading (non-family) public law specialists.

Issue

The case concerned the family court’s treatment in financial remedy proceedings (Part III) of debts allegedly owed by one party (the first respondent husband) to his brother’s company in Nigeria (the second respondent interveners), and the application of the rule in Harman v Glencross [1986] Fam 81 which is one of those authorities that sounds familiar, but only rarely crops up in practice.

Adowolo is a rare example of a successful appeal against a judge’s findings of fact. The appellant (wife) appealed against the order of HHJ Vincent dated 14 September 2023, on the basis that the court had erred in law, in relation to (1) the effect of a foreign order; (2) the failure to draw adverse inferences in relation to H and the IV’s lack of evidence; (3) the criticism of W’s lack of evidence, and (4) mis-applying the burden of proof.

Facts

The essential facts of this complicated case were as follows:

• Following divorce proceedings in Nigeria, W applied under Part III of the Matrimonial and Family Proceedings Act 1984 for financial relief after a foreign divorce;
• In his Form E, H asserted that the family home in Hendon, worth £1.8m, was effectively held on trust for his brother’s company, who had allegedly advanced a loan of £1.6m for its purchase;
• W applied to set aside this loan pursuant to s.23 of the 1984 Act (counterpart to s.37 MCA), asserting that the loan was a sham intended to defeat W’s claim
• H relied upon a ‘Loan Agreement’ between the intervener company, H and another Nigerian company which recorded an interest free loan in the Naira equivalent of £1.6m, repayable “by installments [sic]” after a year. No repayment schedule was attached;
• The IVs relied upon a ‘Charge of Whole’ dated 20 May 2019 wherein H purported to grant a charge over the family home;
• In March 2019 H, the IVs and another company entered into a settlement before the Nigerian courts, providing for H to repay £1.6m in four instalments within one year (June 2019 to June 2020). The IVs duly applied to register this judgment in the (English) High Court
• H thereafter stated that he was unable to pay the agreed instalments, but would agree to a sale of the family home;

Charging Order application

In October 2019, the IVs applied for a charging order against the family home. Master Eastman granted an interim charging order but adjourned the application for a final order, pending the hearing of W’s Part III application, which had been listed on 8-10 June 2020. As Moylan LJ commented in the CA, “[39] …the terms of this order… would be consistent with the decisions in Harman v Glencross [1986] Fam 81, Austin-Fell v Austin-Fell [1990] Fam 172 and Kremen v Agrest [2013] EWCA Civ 41 [per Moore-Bick LJ] 

[40] These cases establish that, as set out in Kremen v Agrest at [11], when “the available assets are insufficient to satisfy both the financial claims of one former spouse (usually the wife) and the debts of the other (usually the husband) a conflict arises between the interests of the claimant and those of the creditors”. In those circumstances, at [13], a balance has to be struck between the interests of a judgment creditor and the interests of a wife. In my view, although it is not necessary to decide the question for the purposes of this appeal, the effect of these authorities is that the issue of whether a charging order should be made in favour of a creditor, and on what terms, is determined by the court when also determining the financial application (through the balancing exercise referred to) and not prior to that determination. They also support the conclusion that this balance has to be struck before a charging order is made or, at least, before it is made final.

First Instance

As noted above, within W’s Part III application, she asserted the loan document and other documents relied upon by H and the IV were sham; alternatively, had been created with the intention of defeating W’s claims, whereby it should be set aside. The IVs defence was that the loan agreements were genuine and that if she sought to set aside the Nigerian court’s order (the settlement) she should apply to set it aside in Nigerian, and not England and Wales, which lacked jurisdiction.

The original hearing of W’s Part III claim was adjourned, seemingly because the family court had no jurisdiction to deal with the Master’s charging order. W accordingly, in May 2022, applied to set aside the Nigerian judgment and also the interim charging order.

The general procedural muddle caused the case to be referred to Peel J who listed the hearing before HHJ Vincent, sitting as a Deputy Judge of the High Court, who found (in effect) that she could not attach much weight to W’s evidence because of the absence of documentary evidence produced by her in support. The court concluded that while W had ‘established reasonable grounds for suspicion’ she was unable to establish that the loan agreement was a sham.

Court of Appeal

In the CA, the applicant wife and the intervening third party were represented by public law silks and juniors. Only the first respondent husband was represented by a family barrister.

W argued that the court’s decision was materially flawed in that the judge:

• failed to analyse the evidence property or taken into account a range of material factors such as conflicting dates within the documentation relied upon, or reference to a company which had not by that date been incorporated;
• misunderstood aspects of the case, including the status of the Nigerian judgment, which had been taken as ‘effectively determinative of the genuineness of the alleged loan’, and
• failed to take into account H and the IVs lack of documentary evidence in support, whereby the court should properly have drawn adverse inferences against them;
• misapplied the burden of proof: having found that ‘reasonable grounds of suspicion’ had been established, the evidential burden should have shifted to H and the IV (cf. Paulin v Paulin [2009] EWCA Civ 221, Royal Main Group Ltd v Efobi [2021] UKSC 33)

H and the IV responded that the judgment had been careful and balanced, in accordance with its obligations to identify the crucial legal points and advance reasons for deciding them (Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5 per Lewison LJ at [114-117], Volpi v Volpi [2022] EWCA Civ 464 per Lewison LJ at [2-5] at [65], and that the appeal was no more than an ‘impermissible attempt to re-argue that judgment, based upon a selective reading of the judgment…’. Counsel for IV accepted that while the burden of proof might shift but on the facts of this case, that position had not been reached.

Determination per Moylan LJ (with whom other members of the court agreed)

(1) The trial judge had made a number of errors which vitiated her decision. Accordingly, this was one of the rare case (cf. Volpi) in which an appellate court would interfere with a trial judge’s findings of fact;

(2) Firstly, in relation to the status of the Nigerian settlement:

[94] I have, of course, considered the judgment as a whole and have borne well in mind the advantages the judge had over this court and that the appeal could not succeed if it was based on the type of arguments referred to by Lewison LJ in Volpi v Volpi. I have, however, been persuaded that the judge’s finding that the loan was genuine cannot stand, in particular, because a critical element of her analysis was wrong and because she failed to consider, and misunderstood, a highly relevant part of the evidential picture.

…

[96] Put simply, the judge’s understanding of the effect of what had happened in Nigeria and London was wrong. The Nigerian court had not “scrutinised” the steps taken by the Intervenor; the Nigerian court had not “judged [the debt] to be legitimate”; the loan agreement and other “documents” had not been “accepted and approved by the High Court in Nigeria as valid evidence of a debt owed by the husband to the intervenor company”; and the judgment had not been ”entered on that basis”. As set out in that court’s order of 27 March 2019, all it provided was that: “Terms of settlement dated and filed on 21/3/2019 is entered as Judgment in this suit”. There was, I repeat, no adjudication in respect of the validity of the debt at all.

[97] The judge was also wrong because the English court had not “judged” the debt to be “legitimate”. The Nigerian judgment had simply been registered without any consideration of whether the underlying debt was legitimate.

[98] These, therefore, comprise a “demonstrable misunderstanding of relevant evidence” as well as “critical” findings of fact which have no basis in the evidence.

(3) Second, in relation to failure of H and the IV to produce documentation that should have been available. Adverse inferences should have been drawn:

[99] The second substantive error which vitiates the judge’s conclusion is that she failed to consider, and misunderstood, a highly relevant part of the evidential picture. The judge seemed to consider that her analysis was limited to the oral and documentary evidence which had been given in the case and that the absence of further documentary evidence was a point against the wife and not the husband and the Intervenor.

[100] In my view, this was a case as referred to by Arden LJ, in which the absence of documents was significant. It was a significant factor against the husband and the Intervenor which the judge failed to take into account at all. In respect of the Intervenor, there clearly would be company accounts and other documents which would be expected to be corroborative of a loan. The Intervenor produced no documents corroborative of the loan agreement or of the existence of the loan or which went to the company’s financial circumstances at relevant and material dates, including 2009.

[101] The absence of such evidence was a striking and clearly materially significant factor which required to be included in the judge’s analysis of the evidence, including as to the credibility of the evidence given by the husband and his brother. If, as the husband’s brother said, “the money loaned was made to De Skyline in Nigeria” (my emphasis), it would be expected that both companies would have documents evidencing the same.

[102] The judge did not refer to this at all when considering their evidence and case. Rather, and with all due respect of the judge, she inverted the position and took the absence of such evidence against the wife…

[103] As Sir Christopher Floyd observed during the course of the hearing, any balanced analysis of the evidence required the judge to take into account the almost complete absence of any documents (contemporary and otherwise) from the husband and the Intervenor in support of their case. The judge could not undertake the required balanced assessment without taking that into account.

(4) Third, the court failed to take into account certain relevant evidence, or inconsistencies in H and IV’s account as to how money had been lent, and in its approach to the burden of proof:

[108] Finally, I noted above (paragraph 62) that another way of describing the preliminary issue would be, instead of being whether the loan agreement was a sham, simply to determine whether any such debt existed. This is, of course, relevant to the burden of proof, an issue which was addressed, albeit briefly, during the course of the hearing. Was it for the wife to prove that there was no such debt or was it for the Intervenor and the husband to prove that there was such a debt? If it was the latter, then (see paragraph 66 above) the burden of proof would be on the husband and the Intervenor. If, as in my view they are, Mr Infield and Mr Stein are correct in saying, respectively, that the “main issue was, in effect, the provenance of the money for the purchase of the family home” and the “issue at the heart of the case is the source of the funds for the purchase of the” family home, it was for the husband and the intervenor to prove the provenance/source and that it was a loan from the Intervenor. This will, therefore, be an additional matter which will need to be addressed at the rehearing below.

Finally, while this is not part of the case’s ratio, in relation to the evidence required to prove ‘sham’, Moylan LJ expressed caution about Mostyn J’s summary in Bhura v Bhura [2004] EWHC 727 (Fam) at [9 vii], preferring instead the approach adopted by Sir Geoffery Vos in Bank of Petersburg PJSC v Arkhangelsky [2020] EWCA Civ 408:

“[44] It does not seem to me that the law is now much in doubt. It is encapsulated in the following passages from Baroness Hale of Richmond’s judgment in In re B [In re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) [2009] AC 11) which, though stated to be applicable to care proceedings are, I think, of more general application in civil proceedings: ’64. … Lord Nicholls’s nuanced explanation [in In re H] left room for the nostrum, ‘the more serious the allegation, the more cogent the evidence needed to prove it’ to take hold and be repeated time and time again in fact-finding hearings in care proceedings …’

Alexander Chandler KC

20 May 2025

A GUIDE TO INTERVENOR CLAIMS

[A]      INTRODUCTION

1. Intervenor claims take us – family lawyers – out of our comfort zone.
2. In financial remedy (‘FR’) work we habitually deal with discretion and grey areas: how generously needs should be assessed; whether a PNA has covered ‘real’ financial need; to what extent an asset should be regarded as marital and shareable? A bad day in court involves an outcome at the bottom end of a bracket. When a client’s evidence doesn’t come up to proof, that generally isn’t fatal: after all, the court’s function is ‘quasi-inquisitorial’, and the overarching objective is fairness. Generally speaking, there isn’t much risk on costs.
3. By contrast, intervenor (‘IV’) claims tend to be binary: either the IV can or cannot establish his interest. Where the parties have given materially different accounts and there is a dearth of documentary evidence, issues of credibility can be pivotal – so a bad day in court can mean the case is won or lost, and costs generally do follow the event – and IV cases can be very expensive indeed.
4. So, while IV claims are challenging and interesting, compared to the usual horse trading at FDR, they are not for the faint hearted. They can go wrong, spectacularly so.

How wrong can they go?

5. The title of this talk comes from HHJ Wildblood KC’s judgment in Uddin v Uddin and Begum and Ors [2022] EWFC 75, the first line of which reads:

[1] These are feral, unprincipled and unnecessarily expensive financial remedy proceedings.

6. Uddin is a lengthy judgment (200 paragraphs) but, for the purposes of this paper, its facts can be stated briefly:

• H issued Form A in 2018. W issued a separate claim form seeking declarations that H held beneficial interest in properties held by third parties, and a controlling interest in an Indian restaurant in Essex (the New Chadni Restaurant, Burnham on Sea);
• W’s trust claim was initially given priority over the FR claim – proceedings transferred to Business and Property Court, then to County Court, finally to the Family Court at Bristol where it was allocated to HHJ Wildblood KC;
• The case had by that stage accumulated, in addition to H and W, seven respondents, including the legal owners and occupants of the two properties, in relation to the restaurant, a company and main its shareholder;
• Spoiler alert: the judgment doesn’t start well for the W:

[7] … Before descending into the mass of detail in this case, I want to give an overview. Apart from the trust claims (which, as I explain, are meritless and misconceived), this case should have been simple. 

…

[13]… I wish to emphasise that I have given repeated warnings, both during this hearing and in the pre-trial review in April that the pursuit of the trust claims could leave at least one party ‘wiped out’ by the costs. Further, because of the arguments that were advanced at the hearing in April, that hearing should have given the wife cause to reflect very carefully about the trust case that she was arguing. The arguments that I have heard at this hearing, even in the closing speech on her behalf, showed that no heed had been taken to my warnings or to the obvious weaknesses in her trust case.

7. It proceeds to get worse for the applicant – and here we are only at paragraph 24/200

[24] (ii) … The case has been in and out of court due to procedural infighting. In relation to the trust claims the wife has never set out in any meaningful sense how it is that she seeks to justify the claims or the shares that she seeks in the two relevant properties (High St and 4 Morland Rd); for instance, the case of Laskar v Laskar [2008] EWCA Civ 347 (to which I refer later) has simply been ignored by her.

(iii)  The trust claims are hopeless. It is simply not necessary to descend into any form of lengthy analysis of the equitable principles of resulting and constructive trusts. In relation to both properties in issue (50-52 High St and 4 Morland Rd) there is no evidence that the husband made any direct financial contribution to the purchase of either property or to mortgage payments. There is no evidence of a common intention (express, implied or imputed) that he would have a share in them – quite the reverse, since it was the very clear intention that the legal title holders would be the beneficial owners of the two properties. From the start, the trust claims as presented bore the evidential difficulty of the wife (an outsider) seeking to establish that the holders of the legal title and the husband shared beneficial interests in properties that both title holders and the husband denied; that evidential reality has not been reflected in anything that I have heard on her behalf.

8. This downward trajectory continues for W’s advisers (for the avoidance of any doubt, this was not me) until a brutal conclusion:

[146]   Regrettably, I think that it is extremely disappointing that the points that were made so clearly by the Respondent parties at the hearing in April about the applicable trust principles were not absorbed more carefully on behalf of the wife. The above passage shows a confusion of analysis between the law relating to constructive trusts and that relating to resulting trusts. The very short passage, cited as coming from Jones v Kernott (which it does not), is not a complete analysis of the law. No further arguments about the applicable law were advanced on behalf of the claimant. I have no bundle of authorities. No mention was made by the wife’s counsel of Laskar v Laskar [2008] EWCA Civ 347 or Marr v Collie [2017] UKPC 17. No explanation has ever been given as to why the wife asserts the beneficial interests that she does.

…

[152] In my opinion the wife’s trust claims have been unprincipled and have stuck rigidly to the contentions made at the outset of these proceedings without there being any sufficient analysis of the evidence as it is has come in or the law applicable to it.

…

[200] …these proceedings are a disgraceful example of how financial remedy proceedings should not be conducted. The wife may wish to take advice about why her case was presented in this way and why so much expense has been incurred.

9. While Uddin was a very unusual (and readable) case, it is far from unique when it comes to reported case of IV claims going spectacularly wrong, e.g.

• Everybody’s favourite FR authority, TL v ML [2005] EWHC 2860, where the parties had incurred £474,000 in relation to assets worth £560,000);

• KSO v MJO [2008] EWHC 3031 where case imploded under the weight of the costs incurred in interlocutory squabbling: Munby J (as he then was) commented:

“[80]   The picture is deeply dispiriting. And it is not as if it is only the adults who suffer from the consequences of such folly. The luckless children do as well. The present case is a sobering, and for me deeply saddening, example. If, instead of spending – squandering – over £430,000 in costs, the wife and the husband had been able to resolve their differences at a more modest and, dare I say it, more seemly level of costs, there might very well have been enough left in the matrimonial ‘pot’ to house the wife and children and to enable the children to remain at their school, whilst still leaving something more than a mere consolation prize over for the husband. As it is, it is hard to see much being left from the wreck, not least after the trustee in bankruptcy has had his costs, expenses and remuneration. It is difficult not to be reminded at this point of Jarndyce v Jarndyce (see the Appendix). And the wife and the husband – and for this purpose I refer to them as the mother and the father, for that is what they are – are faced now with the wretched and thankless task of trying to explain to their daughters how it has all come to this.”

10. What lessons from these cases? IV claims are legally complicated, they can be procedurally messy, they turn not on issues of broad discretion but whether the various elements of a trust argument can be made out and evidenced, and they can be very expensive indeed.

11. Indeed, a good rule of thumb in an IV case (and indeed a TLATA claim involving family lawyers) is that, given the complexities of the law (‘the witches brew’ per Carnwath LJ[1]), there’s a good chance that someone – one of the barristers, solicitors or judge – is going to get the law very wrong.

12. Indeed, in terms of the court occasionally falling into error, one of the curious quirks about IV claims is that they are heard by judges sitting in the financial remedies court/ family court – who can make declarations as to beneficial interest in a IV claim, applying principles of constructive trust etc – but who have no jurisdiction to deal with freestanding TLATA claims, where currently (and there have been proposals to change this, since 2016) the family court/ FR court has no jurisdiction[2].

13. So, with apologies to those of who are already well versed in the lore/ law of IV claims, let’s go back to basics:

[B]       WHAT IS AN INTERVENOR CLAIM?

14. Financial remedy claims normally involve two parties: Husband and Wife, or in same sex cases, Applicant and Respondent.

15. Pursuant to FPR 9.26B, the court (i.e. the family court) can join a third party (‘intervenor’) either (a) where it is ‘desirable’ to do so that the court can resolve all the matters in dispute, or (b) there is an issue involving the new party and an existing party which is connected to the matters in dispute, or desirable to join to resolve that issue.

16. The seminal point to note is that, where an intervenor is joined for the determination of a disputed preliminary issue (e.g. who is the beneficial owner of property/ shares etc.), the FR court resolves those issues not on the basis of the discretionary principles that only arise between divorcing spouses (MCA 1973) but as on general common law principles, e.g. constructive trust or resulting trust.

17. This was put most clearly by Mostyn J in TL v ML [2005] EWHC 2860, which is reputedly the single most cited judgment (at High Court level) in financial remedies:

[34] It is to be emphasised, however, that the task of the judge determining a dispute as to ownership between a spouse and a third party is, of course, completely different in nature from the familiar discretionary exercise between spouses. A dispute with a third party must be approached on exactly the same legal basis as if it were being determined in the Chancery Division

18. This can be a culture shock for family lawyers, because we live in a siloed legal world where FR practitioners normally steer clear of Chancery work (and vice versa). Normally, in FR work, we don’t have to concern ourselves with issues of beneficial ownership. I made this point, while sitting as a s.9(1) judge, in DDR v BRD [2024] EWFC 278:

[1] The family court does not normally have to resolve issues of beneficial ownership between divorcing spouses.

[2] In most financial remedy claims, a declaration as to the parties’ equitable interests would be: “…of very little value… it simply adds confusion and trouble and achieves nothing” (Fielding v Fielding [1977] 1 WLR 1146, per Ormrod LJ). A claim for financial remedies should normally “…be determined within the four corners of the Matrimonial Causes Act and on the application of the statutory criteria there set out”, not by reference to equitable interest (Prazic v Prazic [2006] EWCA Civ 497, per Thorpe LJ at [25])

[3] In Tsvetkov v Khayrova [2023] EWFC 130, Peel J summarised the position as follows:

“…ordinarily, in financial remedy proceedings, it matters little as between a husband and wife in whose name an asset is beneficially held. The court has wide dispositive powers to adjust ownership as part of its overall determination of the fair outcome. An exception to this general proposition is where a third party [intervenor] asserts a beneficial interest…”

[C]      WHEN DO INTERVENOR CLAIMS ARISE?

Disputes over beneficial ownership

19. While a third party can be joined to a FR claim in many situations, the most common situation is in relation to a dispute about beneficial ownership of real property. For example, a Husband might assert in Form E that while he is the legal owner of a property, he holds it for his parents/ uncle/ brother etc. because they were too old/ didn’t have enough income to obtain a mortgage, so the family agreement is that it would be put in H’s name.

20. The Wife might in response say, that’s the first I’ve heard of it. Also, that the separation was horrendous, H’s family are thick as thieves and they did something similar when H’s brother got divorced (etc.) and they asserted an interest, produced a declaration of trust etc.

21. This creates the classic scenario for an IV case – whereby, at the First Appointment, someone (usually counsel for H) submits that with H’s family in the background chomping at the bit, it might be sensible to have some case management directions to enable H’s family to be heard, which can begin a process which sometimes takes months to resolve, but can take well over year, to resolve the preliminary issue of the ‘intervener’s interest.

Other situations

22. The power to join a third party intervenor is not restricted to claims for beneficial ownership between family members. It can arise in other situations, e.g.

• Where a spouse is declared bankrupt, an issue arises between the other spouse and the trustee in bankruptcy, e.g. DDR v BDR (Financial Remedies, Beneficial Ownership and Insolvency) [2024] EWFC 278

• Where a third party seeks to recover monies that are owed by a spouse, e.g. Bogolyubova v Bogolyubov and Privatbank [2022] EWFC 199

• Exceptional situations where, on the particular facts of a case, the court is satisfied that third parties should be joined – e.g. the extraordinary facts of the litigation funder case of Simon v Simon and Integro Ltd [2024] EWFC 160.

[D]      WHY DO WE HAVE INTERVENOR CASES?

23. Essentially, the point is to determine which assets come within the court’s reach: if the beneficial owners of a property are third parties, then obviously it cannot form part of the FR computation and distribution exercise. The late lamented Val le Grice QC put it best when he submitted: “…the size of the cake should be ascertained before the knife is applied to it” Gourisaria [2010] EWCA Civ 1019 per Hughes LJ at [12]

24. In terms of modern case law, this all dates back to the CA decision in Tebbutt v Haynes [1981] 2 All ER 238, to an age before neutral citations. BAILII and the National Archives; when reported judgments were more difficult to fine, outside a law library.

25. Tebbutt v Haynes was a case about issue estoppel. In the original ancillary relief proceedings, the court joined H’s mother and aunt before making declarations as to beneficial ownership. Aunt proceeded to issue a fresh set of proceedings in the Chancery Division. Could she do this? No, obviously she couldn’t.

• The court dealing with financial remedies (then ‘ancillary relief’) had to be able to establish what property came within its reach:

“…It is fundamental to the s 24 [MCA] jurisdiction that the judge should know over what property he is entitled to exercise his discretion. If there is a dispute between a respondent spouse and a third party as to the ownership of a particular item of property which stands in the respondent spouse’s name, that dispute must be resolved before the judge can make an effective final order under s 24. There are only two ways of resolving such a dispute. Either the Family Division proceedings must be adjourned pending the trial of the claim in other proceedings, or the dispute must be decided in the s 24 proceedings by allowing the third party to intervene”

• Where the court had joined third parties, inquired into those disputed issues and reached findings of fact, those findings were conclusive – in other words Aunt could not just re-start the litigation in another Division:

“…It seems to me that, under s 24 of the 1973 Act, if an intervenor comes in making a claim for the property, then it is within the jurisdiction of the judge to decide on the validity of the intervenor’s claim. The judge ought to decide what are the rights and interests of all the parties, not only of the intervenor, but of the husband and wife respectively in the property. He can only make an order for the transfer, to the wife, of property which is the husband’s property. He cannot make an order for the transfer to the wife of someone else’s interest. So, in order to make an order under s 24, it must be within the jurisdiction of the judge to determine what are the various rights and interests in the property not only of husband and wife but also of any other persons who claim an interest.” per Denning MR at p. 242.

26. So, there are two alternatives: (1) join the third party so that the (family) court can resolve the disputed issues of beneficial ownership (etc.) preliminary to resolving the financial claims of the main parties (H and W), or (2) stay the financial remedy proceedings pending the conclusion of ongoing proceedings which would determine those disputed issues.

First alternative (normally preferred) – joining a third party intervener

27. Subsequent authority has established that the first alternative (joining a third party intervener) is normally preferable.

28. In Baker v Rowe [2009] EWCA Civ 1162, Wilson LJ (as he then was) observed that it was normally ‘convenient’ for a third party to intervene as a party in the ancillary relief proceedings:

[23] …Ever since the decision of this court in Tebbutt v Haynes [1981] 2 All ER 238, it has been recognised as convenient that a third person who asserts a beneficial interest in property which is the subject of an application for ancillary relief following divorce should either be permitted as an intervenor, or ordered as a further respondent, to make his assertion within, and thus as a party to, the application, rather than that the existence or otherwise of his alleged interest be determined in separate proceedings in a separate court at a separate time, with the consequential risk of inconsistent decisions. It would be highly unfortunate, as well as unprincipled, if such a person, when joined as an intervenor or as a respondent only for convenience, were to find that, even were his assertion successful, a general rule against making any order for costs inter partes would operate against him.”

29. An important caveat is that for the determination to be effective and binding, the third party intervener must be joined as a party, per CA in Gourisaria v Gourisaria [2010] EWCA Civ 1019, per Hughes LJ (as he then was)

[19] I have no doubt that, ordinarily, intervention, if it is accepted, is much the best means of achieving a decision on all material matters in a manner which binds not only the spouses but also any third party…

[20] I also agree that a simple invitation to intervene is not by itself sufficient to produce an order which binds a third party who does not accept the invitation. That was the point which troubled Munby LJ. For my part, I respectfully agree with him and I particularly agree that neither TL v ML or Rossi v Rossi or any of the other cases go anywhere near suggesting otherwise. On the other hand, of course if an invitation to intervene is given and not taken up, that is undoubtedly something that the English court can and should take into account in deciding whether to proceed or not. There was in this case a plain means available to the brother to make his voice heard on the issue before the court, which was well advanced in considering the case.

…

[23] Accepting as I do the general proposition that it is highly desirable that issues between a third party and spouses should be resolved at the same time as the issue between the spouses, there will be some cases in which it simply cannot be done and there will be others where it could be done only at the cost of a price which ought not to have to be paid.

[24] In all those cases, indeed in every case, the question is a case management one, it is a case specific one and it calls for the exercise of the judge’s discretion.

30. As to which party (H or W) is under a duty to ensure a relevant third party is joined, see Fisher Meredith LLP v JH [2012] EWHC 408.

Second alternative: staying the claim

31. As with all good things in life and law, there are exceptions, where FR proceedings are better stayed, e.g. where the disputed issue involves technical issues that might be more suitable to be heard at a specialist court, as recognised recently by the Court of Appeal in Bogolyubova v Bogolyubov and Privatbank [2023] EWCA Civ 547, where King LJ commented that: “[48] The dangers of second guessing the outcome of substantial future third party litigation was highlighted in George v George [2003] EWCA Civ 202”

[E]       WHERE DO THEY ARISE?

32. An IV claim might arise anywhere. Anecdotally, for what it’s worth, the majority of IV cases I’ve dealt with have been heard in places like the Thames Valley (Reading, Slough, Staines) with large second and third generation immigrant populations. Almost all of my IV cases have involved families who originate from the Indian sub-continent.

33. I can’t explain why this might be, although it may relate to different cultural traditions, the importance of wider family ties, conventions of (sometimes extremely) generous familial support, and expectations of newlyweds living at first with the paternal family. Or it could just be that Anglo-Saxon families are much meaner when it comes to supporting children, and are more atomised (in terms of putting the nuclear family ahead of the wider family) so the subject matter of an IV claim is less likely to arise.

[F]       HOW DOES AN IV CLAIM (OR HOW SHOULD IT) ARISE?

34. As a reminder, the test at FPR 9.26B mirrors CPR 19.2, i.e.

“(a) it is desirable to add the new party so that the court can resolve all the matters in dispute… or

(b) there is an issue involving the new party and an existing party which is connected to the matters in dispute… and it is desirable to add the new party…”;

35. As to the interpretation of this rule, per Mostyn J in DR v GR & Ors [2013] EWHC 1196 (Fam), Mostyn J confirmed at [35] that …

(v) Under the first limb it must be clearly shown that an existing matter in dispute between the parties cannot be effectually and validly resolved without the joinder of the proposed new party. 

(vi) Under the second limb it must be shown that there is a  separate dispute between a party and the proposed new party and that it is desirable to hear the matters together. The question of whether it is desirable to hear the matters together extends to the commonality of evidence as well as the saving of costs. 

Procedural rules that apply (but are rarely follows)

36. While these provisions are more honoured in the breach, this rule also that while the court can join an IV of its own motion (r.9.26B(4)), r.9.26B(5) confirms that the Part 18 procedure should apply whereby a proposed IV should

• Issue an application notice (FPR 18.4), stating what order is sought and why the application is being made, attaching a draft order ( 18.7);

• the application should be supported by evidence setting out the proposed intervener’s interest or connection with the proceedings ( 9.26B(5));

• the application notice should be made on notice, and served in accordance with the provisions of 18.8; and

• at least seven days’ notice must be given of the application ( 18.8(b)(i))[3].

Court’s discretion whether to join

37. The court accordingly exercises a discretion whether or not to join. No third party is entitled as of right to become a party in a FR case, causing untold delay and additional expenses (a.k.a. creating leverage for one spouse to wrest a better settlement).

38. Whether it will be desirable to join a third party IV will depend on the facts. This point cannot be too strongly emphasised. In Behbehani v Behbehani [2019] EWCA Civ 2301, the Court of Appeal underlined the following:

“[69]… It all depends on the circumstances…It would be wholly disproportionate to insist that, even where the wife is not seeking the transfer of the assets, all such persons should be joined to the proceedings and the issue of ownership determined before any financial remedies order can be made. There may be cases where joinder is appropriate in those circumstances, but it should certainly not be the rule.”

39. In some cases, the case for joining a third party may be overwhelmingly strong: the third party may have issued an application, set out a strong prima facie case, the issue at stake may be so pivotal to the FR proceedings that the case is going to be stuck until this issue (e.g. beneficial ownership) is resolved.

40. In others, it may be far obvious, e.g.

• Where the disputed asset is of peripheral importance – e.g. an asset with limited net equity, or an asset which was inherited / non-marital in character;

• Where the case can be resolved (or at least, an effective FDR can take place) without needing to go down the line of an active intervener claim, e.g. where the issues are narrow, or mainly concern points such as periodical payments;

• Where the subject matter of the IV claim can reasonably dealt without joinder, e.g. if a family member seeks to recover a loan, could he attend as a witness, upon the undertaking of one party to repay him back from any award. (NB the court has no power to make orders in favour of third parties: Burton v Burton [1986] 2 FLR 419, Wodehouse v Wodehouse [2018] EWCA Civ 3009))

• Post- FPR 3.4(1A) and Churchill v Merthyr Tydfil CBC [2023] EWCA Civ 1416, there might be a compelling case to try NCDR including the proposed IV as an alternative to the whole gamut of TL v ML directions.

WHERE AN IV IS JOINED, WHAT DIRECTIONS SHOULD BE MADE?

TL v ML directions

41. The starting point has to be TL v ML where Mostyn J held as follows

[36] In my opinion, it is essential in every instance where a dispute arises about the ownership of property in ancillary relief proceedings between a spouse and a third party, that the following things should ordinarily happen: 

• The third party should be joined to the proceedings at the earliest opportunity.
• Directions should be given for the issue to be fully pleaded by points of claim and points of defence;
• Separate witness statements should be directed in relation to the dispute; and
• The dispute should be directed to be heard separately as a preliminary issue before the financial dispute resolution (FDR).

42. Taking each of these four sub-paragraphs in turn:

43. Joinder (i) we have covered. In order to make the court’s determination binding on a third party, he has to be joined as a party.

44. Directions for pleadings (ii)

In A v A [2007] EWHC 99 (Fam), Munby J (as he then was) underlined the importance of points of claim and defence in an intervener claim:

[24]   I do, however, entirely share the deputy judge’s view that directions should normally be given for such issues to be properly pleaded by points of claim and points of defence. In the present case the muddle, confusion and ambiguities in the wife’s case would have been more pitilessly exposed, and at a much earlier stage in the proceedings, had the presentation of her case been exposed to the intellectual stat which is one of the advantages of any system of pleading. Moreover, if the wife had been required to plead her case everyone would have had a much clearer idea, and at a much earlier stage, as to exactly what she was or was not asserting and as to exactly what the husband and the intervenors were or were not saying by way of defence. As it was, matters were wholly unclear even as late as the first day of the final hearing. 

45. These should be directed to be filed sequentially, i.e., IV to file points of claim, then a defence from the party who will likely support the IV (e.g., Husband, if claim is made by his family), then a defence from the opposing party.

46. To what extent does the CPR apply?

The CPR does not apply in an intervener claim. Per Thorpe LJ in Goldstone v Goldstone [2011] EWCA Civ 39

“[39] …Of course the ultimate trial required the family division judge to apply the law of property and the law of sham just as his brother judge would do in the Chancery Division. Careful preparation for that trial was necessary. However these impeccable directions do not require or permit the import of the CPR. In its essence the claim remains a claim by the wife against the husband. Ultimately it is a claim for discretionary relief. In this, as in many cases, there must be a preliminary issue trial to establish the extent of the assets over which the discretion is ultimately exercised. Here, as in many cases, the preliminary issue trial determines the claims and the rights of third parties. The preliminary issue trial is pendent on the originating application. It has no independent existence.

However, while the full panoply of CPR costs budgeting etc. has no application, principles of good case management and the overriding objective are common between the FPR and CPR – and it is suggested that practitioners drafting points of claim and defence in IV claims should be aware of the requirement that such documents should be “concise” (CPR 16.2)

47. Disclosure relating to IV claim.

When the court is giving a third party the opportunity to apply to intervene, it should direct the service of (a) Form A, (b) the relevant parts of the Form E etc., and (c) a copy of the relevant part of the First Appointment direction.

48. In due course, the court may have to provide for disclosure of the documentation relied upon (e.g. declaration of trust, conveyancing file etc.). In some cases, something approximating to standard disclosure might be needed.

49. But a point which is often lost in practice is that an intervenor should not generally receive all of the FR papers. The IV should receive everything relevant to the subject at large but FR proceedings are confidential and there generally should not be a direction for ‘a copy of the bundle to be disclosed to the interveners’ – since this will contain a huge amount of material which is private to the parties and irrelevant to the preliminary issue.

50. The court can rule on the extent of disclosure pursuant to its case management powers at FPR Pt 4.The point arose most recently in Bogolyubova v Bogolyubov and Privatbank [2022] EWFC 199 where Peel J joined the intervenor but directed that it:

“[43] …shall not be entitled to disclosure of any documents within the financial remedy proceedings unless agreed by the parties or ordered by the court. I refuse the specific disclosure sought by PrivatBank which in my view is not necessary, particularly in the light of my primary decision.:

51. Witness statements (iii).

I would suggest that in many cases, the costs of preparing pleadings and then witness statement may be disproportionate, and/ or could be await the FDR. Query if they should they be exchanged simultaneously (as in civil litigation) or sequentially?

52. Listing hearing before or after FDR (iv)

Similarly, given wider trends in the law towards NCDR, it many cases an FDR will be directed before the preliminary issue hearing. In a typical medium asset case, it may be preferable to bring all parties (including the IV) to an FDR to see if some sort of agreement is possible, before the costs have escalated all round. This, again, will depend on the facts in the case. Is it going to be possible to resolve the case with the intervenor issue still at large? Will the FDR judge/ private FDR evaluator be able to give a helpful indication in relation to the intervenor claim?

53. In Shield v Shield [2013] EWHC 3525 (Fam) Holman J declined to make any general comments about the timing of a FDR but observed that it would have been desirable and proportionate on facts of that case to list a FDR before the preliminary issue hearing:

[17] I would have thought that in this case this was a particularly opportune moment to have assembled all concerned (not necessarily the husband himself if he was physically or mentally unfit to attend) in a forum such as an FDR and to have a sustained attempt to see if a resolution to this awful conflict could not be found at a stage when there may be high litigation risk for all concerned. 

54. At the preliminary issue hearing of Shield v Shield [2014] EWHC 23 (Fam) Francis J observed:

[108] I note that there was no FDR in relation to the preliminary issue. Whilst, as been made clear in a number of cases, an FDR will not necessarily be appropriate to the resolution of a preliminary issue, I express the view that consideration should at least be given to the possibility of an FDR prior to the hearing of a preliminary issue. It may well have been the case here that the input of an experienced FDR judge might have helped to save this family from the course which it has taken. 

SOME LAW (VERY BRIEF)

55. The critical point, already made, in every intervenor claim is that the applicable law:

“[66] …differs importantly from the law to be applied between the wife… [as to the former] the court is not performing a discretionary exercise but is determining issues of property law and associated fact. It is salutary for family practitioners to keep the distinction clearly in mind” Goldstone v Goldstone, (above) Hughes LJ

56. Accordingly, the determination of an intervenor claim involves the civil approach (has the party proven his/ her case to the required standard of proof[4]) as opposed to the family approach (what is fair, applying a quasi-inquisitorial approach).

57. In cases concerning real property, the operative law will be the law of trusts. Where the subject property was acquired as a home (i.e. within the ‘domestic consumer context’), the presumption will be that the legal owner(s) is also the beneficial owner(s) and that the most appropriate tool of analysis will be the constructive trust: see Stack v Dowden [2007] UKHL 17 at [56]; Abbott v Abbott [2007] UKPC 53 at [4]).
58. The court presumes that the legal owner(s) of property are also the beneficial owner(s), and the burden of proof will be on the party who asserts otherwise[5]. The standard of proof is the civil standard, i.e. balance of probabilities.  If a party fails to discharge the burden of proof, the claim fails: there is no overarching duty of the court to consider the overall fairness of the outcome. 

59. Where a property is acquired as an investment, these presumptions may not apply (Laskar v Laskar [2008] EWCA Civ 347). Equally, the court is not obliged to adopt a resulting trust approach with an investment property acquired by co-owners are domestically linked: see Privy Council case of Marr v Collie [2017] UKPC 17.

COSTS

Family Costs: the General Rule and the Clean Sheet

60. By way of overview, there are two main costs regimes that apply in respect of family proceedings:

• the ‘General Rule’ is that, presumptively, each party will pay their own costs. This is set out at FPR 28.3, and covers ‘financial remedy proceedings’, which is defined at FPR 28.3(4)(b). Under the general rule, each party pays their own costs, save where, applying the checklist of factors at FPR 28.3(7), a party’s conduct warrants that they should pay the other side’s costs. Only open offers are admissible on costs, save at the FDR (where without prejudice proposals are admissible)’

• the ‘Clean Sheet’, where the court applies a broader discretion and may make such order as to costs as it thinks fit. The clean sheet applies in cases that fall between two stools; that are neither (i) ‘financial remedy proceedings’ for the purposes of the (financial remedy) general rule, nor (ii) civil proceedings that involve the (civil) general rule that the unsuccessful party normally pays the successful party’s costs. 

• In ‘Clean Sheet’ cases, Calderbank (‘without prejudices save as to costs’) offers are admissible once judgment has been handed down.  

61. The ‘clean sheet’ applies to intervenor claims because they are not proceedings for a financial remedy to which FPR 28.5 applies but proceedings ‘about’ or ‘in connection with’ them. In Baker v Rowe [2009] EWCA Civ 1162, Ward LJ explained at [35]: ‘…The orders might well have been made in ancillary relief proceedings but they were not orders for nor even in connection with ancillary relief. The rule must be construed purposively as my Lord explained in Judge v Judge … and in his judgment above. Proceedings between interveners do not come within the ambit of the rule. The judge making the costs order has, therefore, a wide discretion.’

62. The ‘clean sheet’ has been interpreted in some cases, and by some judges, as involving a ‘soft costs-following-the-event principle’ whereby the fact that one party has been successful will be the decisive factor:

• In Baker v Rowe [2009] EWCA Civ 1162 per Wilson LJ at [25]. ‘…the fact that one party has been unsuccessful and must therefore usually be regarded as responsible for the generation of the successful party’s costs, will often properly count as the decisive factor in the exercise of the judge’s discretion.’

• KS v ND (Schedule 1: Appeal: Costs) [2013] EWHC 464 (Fam) per Mostyn J at [21] ‘… It is certainly correct that by virtue of CPR 44.3(4) (which is applied to these proceedings by FPR 2010 rule 28.2(1)) the court has to consider the conduct of the parties; whether a party has been successful in whole or in part; and any admissible offers made by the parties (which, as I have pointed out, include Calderbank offers). These would be the first things to write on the clean sheet.’ 

63. In other words, contrary to the normal position in a FR claim (between H and W), the successful party or parties have a reasonable expectation of recovering the costs in an intervenor claim from the unsuccessful party. One might ask, since the court has been engaged in the equivalent to a civil claim (“…A dispute with a third party must be approached on exactly the same legal basis as if it were being determined in the Chancery Division”[6]), why should the outcome be materially different on costs?

SOME CONCLUSIONS

64. Drawing together the main strands of this paper:
    • Too often, an intervener will be joined – and enormous delay and cost will ensure – without (a) the procedural rules have been complied with, or (b) the court having applied its mind to whether this really is ‘desirable’, or can it be reasonably put off, e.g. for NCDR, or dealt with another way;

• Where joinder may be desirable where an issue arises as to the beneficial ownership of real property, it may not be desirable (or proportionate) where the issue is an alleged loan, or where the property at issue is peripheral to the FR claim;

• Bear in mind the detailed provisions of FPR r. 9.26B, which include that there “must” be a Part 18 application, supported by evidence (save, where an intervenor is joined of the court’s own motion);

• In terms of case management directions, TL v ML remains the seminal authority, and the applicable rules are the Family Procedure Rules (not the CPR). Be careful when ordering disclosure of existing papers, not to infringe on the confidential nature of the FDR proceedings between H and W;

• Recognise that an IV claim involves the application of principles (generally) of trust law and property law, and not the exercise of a broad-based discretion. Can the IV prove his/ her case?

• It is important to get one’s tackle in order at the outset – as with TLATA – the factual and legal basis of the claim has to be established (and pleaded) at the outset. In IV claims the parties do not have the option of freewheeling along and working out their arguments just before FDR/ final hearing;

• Costs will generally be at large (i.e. will generally follow the event) since IV claims fall outside the scope of FPR r. 28.3! Calderbanks can – and should – be sent.

65. Finally, for further reading, can I recommend two further resources

Dictionary of TLATA and Inheritance Act claims (3^rd edition, 2025)

Familybrief.org – my blog.

1 March 2025

[1] Stack v Dowden [2005] EWCA Civ 857 at [75] (CA)

[2] President’s Guidance: Jurisdiction of the Family Court (24 May 2021, per Munby P) § 13

[3] Cf. requirement for 14 days’ notice where an application is sought for an interim order such as maintenance pending suit (r.18.8(1)(b)(i) and r. 9.7)

[4] As Lord Hoffman explained in Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35 at [2]:  “… If a legal rule requires a fact to be proved (a ‘fact in issue’), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened”.

[5] Stack v Dowden [2007] UKHL 17 at [68]

[6] TL v ML at [34]

Examples, Authorities and the Panopticon

Cast your mind back to the first time you sat in court and heard a judgment handed down, before you became familiar with its content, structure and duration.

I recall sitting as a pupil in the back of an overheated district judge’s chambers in Kent. The final hearing had largely passed me by. I hadn’t really followed either counsel’s submissions and in the soporific atmosphere I alternated between drifting off and waking up with an unpleasant jolt. (I blame the radiators.)

At the end of the hearing, the court’s judgment was thoughtful, balanced and thorough. But to a novice like me, and I suspect also to the lay clients, it was a strange and alienating experience. What was the point of the judge narrating the parties’ marriage? Why was he reading back to them extracts of their own oral evidence? Above all why was it taking so long, with the important bit – the decision – left, like a Victorian crime novel, until the very end?

I’m not sure what I was expecting. Possibly something closer in form and length to sentencing remarks after a criminal trial. I’ve subsequently come to understand that a judgment needs to tell the story, identify the issues, analyse the evidence, and explain findings of fact, all of which should be done before turning to the outcome. I’ve come to respect the art of pulling together the threads in a case, of making factual findings where, as often is the case, it is finely balanced. I’ve also learned, like many advocates, that while the outcome is only stated at the end, judgments tend to contain early warning signals (or ‘tells’): lavish praise of an advocate (‘Mr Chandler has made his points persuasively and tenaciously’) generally does not herald good news.

But what is the point of a court judgment, and to whom is it actually directed?

CONVENTIONAL REASONS FOR A JUDGMENT

Traditionally, there have been three main reasons for the court to deliver a judgment: the first two concern the parties and arguably (depending on your views about transparency) are private to them; the third, when it arises, involves a public interest in the judgment being published.

First, a judgment explains the court’s reasoning to the parties; rather like how you’d get one mark for getting a maths question right at school and four for showing your workings. In  Flannery v Halifax Estate Agencies Ltd [1999] EWCA Civ 811, Henry LJ described the court’s duty to give reasons as a ‘function of due process, and therefore of justice’:

“…Its rationale has two principal aspects. The first is that fairness surely requires that the parties – especially the losing party – should be left in no doubt why they have won or lost. This is especially so since without reasons the losing party will not know (as was said in Ex p. Dave [1994] 1 All ER 315) whether the court has misdirected itself, and thus whether he may have an available appeal on the substance of the case. The second is that a requirement to give reasons concentrates the mind; if it is fulfilled, the resulting decision is much more likely to be soundly based on the evidence than if it is not.”

Sir Robert Megarry, formerly Vice-Chancellor of the Chancery Division, put it best when he wrote that:

“…the most important person in the court room… is the litigant who is going to lose… [every court should consider whether] …when the end comes, will he go away feeling that he has had a fair run and a full hearing”[1].

Conversely, successful parties aren’t normally as interested in knowing the reasons why they have won. They may feel that they were always in the right, whereby the court has vindicated their position. This is particularly frustrating for the lawyers who have toiled long and hard on a difficult case, where a lay client feels ‘it was already in the bag’.

Second, in the event of an appeal (always a perilous enterprise in financial remedies), the grounds are usually focused upon what was said or written in the judgment, with the following well-known caveats borne in mind:

“…The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment such as the judge gave in this case … These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions, and which matters he should take into account… This is particularly true when the matters in question are so well known as those specified in section 25(2). An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself.” Piglowska v Pigloswki [1999] UKHL 27, per Lord Hoffman;

“…the judgment… has to be read as a whole and having regard to its context and structure. The task facing a judge is not to pass an examination, or to prepare a detailed legal or factual analysis of all the evidence and submissions he has heard. Essentially, the judicial task is twofold: to enable the parties to understand why they have won or lost; and to provide sufficient detail and analysis to enable an appellate court to decide whether or not the judgment is sustainable. The judge need not slavishly restate either the facts, the arguments or the law. To adopt the striking metaphor of Mostyn J in SP v EB and KP [2014] EWHC 3964 (Fam), para 29, there is no need for the judge to “incant mechanically” passages from the authorities, the evidence or the submissions, as if he were “a pilot going through the pre-flight checklist.” Re F (Children) [2016] EWCA Civ 546, per Munby P at [22]

Third, where the judgment has been handed down by the higher courts and either resolves a contentious legal argument or contains important guidance that can be cited in the lower courts, it will be in the public interest for the judgment to be reported. That after all is how the common law develops.

Law reporting used to be a slow and stately business: there was often a delay between a judgment being handed down and reported, sometime measured in years (to take a recent example, Munby J’s judgment in L v L [2006] EWHC 956 (Fam) is dated 2 May 2006 but was reported at [2008] 1 FLR 26). Then there was then the problem of access: it is increasingly hard to remember a time, before BAILII and the National Archives, where legal research involved trips to the law library, leafing through dusty volumes of old reports and endless and expensive photocopying.  

Substantial growth in the publication of judgments

At the turn of this century a quiet legal revolution took place resulting in a massive increase in available judgments online. BAILII started operating in 2000 and following the Practice Direction of 11 January 2001 non-proprietary neutral citations were introduced. It is now infinitely easier to search case law, even without the assistance of expensive services such as Westlaw.

The “substantial growth in the number of readily available reports of judgments” around the turn of the century led to Sir Harry Woolf’s PD on Citation of Authority (9 April 2001).  This remains essential reading. It applies to all courts apart from the criminal courts (cl. 5) and states which judgments can and cannot be cited in court. Clause 6 provides that the following “…may not in future be cited unless it clearly… purports to establish a new principle or to extent the present law… that indication must take the form of an express statement [by the judge] to that effect’.

“Applications attended by one party only”;

“Applications for permission to appeal”;

“Decisions on applications that only decide that the application is arguable”;

“County Court cases unless … (b) cited… in order to demonstrate current authority at that level on an issue in respect of which no decision at a higher level of authority is available”.

While the Practice Direction has not been updated to take into account the nomenclature of the family court, its effect is that family court judgments below High Court level (i.e. circuit judge[2], district judge, recorder or deputy district judge) cannot be cited unless the judgment expressly purports to extend the law or it provides authority where there is no superior (High Court or above) judgement on point. To illustrate that point, Wright v Wright [2015] EWCA Civ 201, a favourite case of the Daily Mail, because it “ended the meal ticket for life”, is not a citeable authority because it is an application for permission to appeal (leaving aside the question of whether the judgment in fact said anything controversial). Conversely, some judgments from the circuit bench, e.g. His Honour Judge Hess’s judgments in P v Q [2022] EWFC B9 and YC v ZC [2022] EWFC 137 are, in the writer’s view, eminently citeable, either because they develop the current law (in relation to soft loans and adding back costs), or they deal with issues upon which there is no superior authority.

A NEW, FOURTH REASON: TRANSPARENCY

In addition to the above three reasons (i.e. explaining the court’s reasons to the parties, enabling the appeal court’s review, establishing precedent) a fourth has more recently emerged: that judges in the family court, at any level, are encouraged to publish online judgments as part of the drive towards greater transparency in the family court. Plainly, the publication of a judgment does not of itself achieve full transparency, just as reading a film review or a sports report isn’t the same as attending the film or event. It is one of a range of initiatives taken to cast some light into family court (also see: press access, bloggers etc).

The encouragement to publish was contained in Sir James Munby’s practice guidance of 16 January 2014, and advanced in Sir Andrew McFarlane’s paper, ‘Confidence and Confidentiality’ (28 October 2021), where the President suggested, albeit in the context of public law proceedings, that judges sitting at all levels in the family court should be encouraged to publish 10% of their judgments. In its final report dated April 2023, the Farquhar Committee endorsed this view for the Financial Remedies Courts, whereby members of the district and circuit bench should  publish more judgments, which (per Farquhar III) “…should occur whenever there is a written judgment available… would provide a greater understanding of how such cases are resolved in the Financial Remedies Court”

Following this encouragement, many family court judges (myself included) have, after careful anonymisation, put judgments online.

There are undoubtedly benefits to this:

• The scope of published financial remedy judgments has widened. Whereas traditionally, reported financial remedy cases tended to involve large fortunes, trusts and international issues, there is a growing number of cases which concern more normal issues and deal with small and medium asset cases, including knotty issues such as state benefits; and

• In terms of encouraging transparency: the publication of judgments serves to demystify the workings of the family court in that anybody could now access several dozen recent financial remedy judgments.

But this represents a significant change in terms of why a court judgment has been disseminated. Traditionally, editors of the Official Reports (or All England Law Reports, Family Law Reports etc.) would decide which judgments to publish. In practice this meant decisions of the House of Lords/ Supreme Court, Court of Appeal and the High Court. On occasion specialist reporters such as the FLR would publish interesting judgments from influential circuit judges and possibly even recorders. The purpose of law reporting was professional, to ensure that important and precedent-setting cases were disseminated within the legal professions. In addition to the reported decisions there would be unreported decisions although these were often inaccessible.

What has emerged is a situation where individual family court judges, having heard submissions from the parties, obtain a neutral citation reference so that judgments are instantly posted, without the professional filter of law reporters deciding whether or not the case is significant or precedent-setting. Several of the resulting judgments that now appear online contain well-balanced and thoughtful summaries of the law and are almost indistinguishable from judgments from High Court judges. (Some may have been written by judges who are on their way to the High Court bench). But unless these judgments come within one or other of the exceptions set out in the PD of 9 April 2011 (referred to above), they cannot be cited. They are examples rather than authorities.

If the purpose of publishing judgments as examples is informing the public of how the court works, the thought occurs, will the point ever come a sufficient number of (non-citeable) examples has been published? Or will this encouragement continue, with the publication online of more and more judgments that serve no legal purpose (in that they cannot, or should not be cited) but inform the general public of how an individual judge has dealt with a specific set of circumstances in a non-citeable way?

I recently raised this question on Twitter and received a range of interesting responses, including:

• That judges should in fact be encouraged to publish more rather than fewer judgments, regardless of the legal status of the reports, in the interests of transparency; and

• In other fields of law, such as employment tribunals, and tribunals more generally, whereby several tens of thousands of ET judgments have already been published online, creating a sort of Panopticon where there is visibility of the outcome of all litigation in that area of law.

Commentary

Personally, I regard the encouragement to publish non-citable judgments as a means to an end; that end being greater transparency and in particular de-mystifying what happens in a typical claim for financial remedies. That end does not in my view require open-ended publication of non-precedent setting judgments. This stream of judgments, interesting as they are to read, will likely cause confusion where where non-lawyers (or lawyers who are not conversant with the PD of 9 April 2001) attempt to place weight on the contents. I’m similarly unconvinced of the merits of putting up judgments endlessly which have no direct use (aka the Panopticon) beyond raising popular awareness. This might mean that I’m still wedded to the 20^th century view of utility: but if a judgment cannot be cited in court, for all of its eloquence and articulacy, it’s practical use is very limited. And for the avoidance of doubt, I’m not against opening up the family court; I’m just sceptical as to this part of the drive towards transparency.

After all, it’s not as though this is an area of law where collections of unreported cases can usefully produce tables of damages a la Kemp & Kemp. Thinking back to that first judgment I heard 25 years ago, I wonder if the lay clients who sat it would have felt more or less satisfied if the judgment had been even longer, with a lengthy section on the law (including a section entitled ‘Discussion’), later consigned to writing and (after anonymisation) published online with the National Archives.

Alexander Chandler KC

29 April 2024

[1] Sir Robert Megarry, “Temptations of the Bench” (1977)

[2] Although not those sitting as s.9 judges.

Tousi v Gaydukova [2024] EWCA Civ 203

A paradox in financial remedies is that the cases involving the fewest assets are often the hardest ones to resolve. That isn’t to say that ‘big money’ cases are easy; far from it. But whereas the complexity in a significant asset case tends to arise at the computational stage (valuing the shareholdings, carried interest, investigating hidden assets, considering where to cut the deck between marital and non-marital assets); in a small asset case, the difficulties arise at the distributional stage.

Where there is only one meaningful asset, such as the tenancy of the family home, the outcome may have to be binary, which might leave one party reliant on the assistance from the State. Thanks to the Government’s withdrawal of legal aid, these questions tend to arise in cases where one or both parties cannot afford representation and act in person, where bundles have been inadequately prepared, and where case management directions may have been overlooked.

This blog concerns the case of Tousi v Gaydukova, in which the court ordered a transfer of tenancy in favour of the ‘wife’. The ‘husband’s’ appeal was heard by Mostyn J, and a second appeal has now been dismissed by the Court of Appeal. The key dates are as follows:

            25 March 2022            Final hearing before Recorder Allen KC

            14 April 2022              Supplemental judgment of Recorder Allen KC

            4 May 2022                 Permission to appeal granted by Arbuthnot J

            27 February 2023        Appeal dismissed by Mostyn J ([2023] EWHC 404 (Fam))

            6 March 2024              Court of Appeal dismissal of appeal ([2024] EWCA Civ 203)

Facts

The applicant or ‘wife’ (Gaydukova) is a Ukrainian national who holds British citizenship, whereas the respondent or ‘husband’ (Tousi) is an Iranian national. The parties underwent a ceremony of marriage in Kyiv in 1997, conducted in Farsi in the Iranian Embassy, which was not registered with the Ukrainian State, as is required under local law. There was, accordingly, a substantial dispute as to whether the parties had been legally married. In this blog, the terms ‘marriage’, ‘husband’ and ‘wife’ have been used advisedly (with inverted commas).

In or around 2000 the parties relocated to the UK, and in March 2010 they were granted an assured tenancy of a property in Acton by the local housing association. This became the family home of the parties and their two daughters, now aged 24 and 15. The parties separated in December 2019, when the ‘wife’ moved out of the family home. In April 2020 she obtained an ex parte non-molestation order. In June 2020 following a contested hearing the court continued the non-molestation order but refused to make an occupation order in the ‘wife’s’ favour.

‘Wife’ then petitioned for divorce, at which stage the court suggested she should apply for a declaration under s.55 of the Family Law Act 1986 to resolve the uncertainty as to its status. Rather than pursue that avenue, the ‘wife’ withdrew her divorce petition and applied in September 2021 for a transfer of tenancy.

Transfers of tenancy under Family Law Act 1996, Schedule 7

The power to transfer a tenancy is set out at s.53 and Schedule 7 of the Family Law Act 1996, which will be more familiar to practitioners because of Part IV (ss.30-63) which covers non-molestation and occupation orders. The court’s powers arise in relation to ‘relevant’ tenancies, as defined at Sch 7, para 1, which includes assured tenancies under the Housing Act 1988 and protected tenancies under the Housing Act 1985, where the landlord is a local authority or housing association, but not assured shorthold tenancies in the private renting sector.

Schedule 7 provides that the court can transfer a relevant tenancy in one of two scenarios: following a divorce order (etc.) (“paragraph 2”) or where cohabitants cease to cohabit (“paragraph 3”). While an order under paragraph 2 can only be made “upon” the making of a divorce order (and not before), an order under paragraph 3 can be made at any time once the cohabitants cease to cohabit.

Where the court has jurisdiction to transfer a tenancy, it should have regard to the short checklist of factors at Schedule 7, paragraph 5, and

• In a paragraph 2 case, the checklist of factors at s.33(6) (a-c) of the Family Law Act 1996, i.e. the parties housing needs and resources, their financial resources more generally, and the likely effect of any order on the health, safety and wellbeing of the parties and relevant children; and
• In addition, in a paragraph 3 case (cohabitation), the checklist of factors at s.36(6)((e-h) of the Family Law Act 1996, which adds to the s33(6)(a-c) factors, consideration of the nature of the parties’ marriage, the duration of cohabitation etc.

It may be apparent that the Family Law Act 1996 is not an easy statute to navigate. Anyone who has sought an occupation will be familiar with the mental gymnastics involved in the balance of harm test, e.g. at s. 33(6)-(7). Practitioners with longer memories may recall its unhappy history: Part II, which related to divorce, was never brought into effect and was finally repealed in 2014; the provision for payments of bills at s.40 was found by the Court of Appeal to be seriously defective and unenforceable (Nwogbe v Nwogbe [2000] 2 FLR 744).

First instance decision of Recorder Allen KC

On 15 February 2022 Recorder Allen KC heard the application and reserved judgment. Six weeks later on 26 March 2022, the learned judge handed down a detailed judgment which recorded that there was a factual dispute between the parties as to the status of their marriage, which did not fall to be determined at that stage. Having considered the parties’ evidence and the statutory factors, the court transferred the tenancy to the ‘wife’, with the ‘husband’ giving vacant possession by 4 April.

The ‘husband’ then drew to the court’s attention the jurisdictional issue that if the parties were married (as the husband contended) the court could not transfer a tenancy under paragraph 2 until a divorce order, or similar, was made. In response, Recorder Allen KC observed that the status of the parties’ marriage, which would have required expert evidence, had not been set down for hearing in the earlier case management directions orders, had not been addressed in the parties’ witness statements or even the position statements. However, by consent, the order was stayed.

In a detailed supplemental judgment dated 14 April 2022, to the effect that: (i) the jurisdictional issue raised by the husband could be resolved by the court proceeding on the basis that the parties were former cohabitants (i.e. ‘paragraph 3’), (ii) there was no need to resolve the vexed question of the status of whether or not the parties had been validly married, whereby (iii) the stay would therefore be lifted, although the ‘husband’ was allowed additional time before giving vacant possession.

Appeal before Mostyn J ([2023] EWHC 404 (Fam))

The ‘husband’ appealed on ten grounds. He was granted permission by Arbuthnot J on a single ground, that the court erred in making a transfer of tenancy order without first determining whether the parties were legally married; consideration of the other seven grounds was adjourned to a ‘rolled up’ appeal hearing before Mostyn J. Arbuthnot J also permitted the parties to instruct a Ukrainian lawyer as a single joint expert to report on the status of the parties marriage.

In a magisterial judgment, Mostyn J surveyed the history of the legal formation of a marriage from 1140 AD when Camaldolese monk Gratian commenced his great work of codification of canon law (see paras. 30-79) concluding with a flow chart setting out the complexities of whether under English law a marriage was valid, void or voidable (para 62). From para 63, the learned judge deals with overseas ceremonies and concludes that the lex loci celebrationis, the foreign law (Ukrainian in this case) should determine not only the essential validity of the marriage but also ‘the ramifications of that finding under the foreign law… provided that it is not contrary to justice, the relief awarded by this court should reflect those ramifications” (para 73).

On the facts of the case, Mostyn J cited with approval the SJE’s conclusion that “…if a marriage said to have been contracted in Ukraine is not recorded in the civil status acts register of Ukraine, then there is no such marriage in Ukraine. The court in Ukraine would decline to hear a claim for recognition of such a marriage as valid or concluded” (para 80(viii). In summary, Mostyn J concluded that the marriage was void ab initio, and that the power to transfer the tenancy had been validly exercised by the recorder (para 85). Accordingly the husband’s appeal was rejected.

Second appeal before Court of Appeal [2024] EWCA Civ 203)

The specific question raised by the husband’s second appeal was whether the term ‘cohabitants’ (i.e. under Schedule 7, paragraph 3) includes parties to a void marriage. Moylan LJ observed at the outset that:

“[3]. The resolution of this issue has, frankly, been side-tracked by other legal points which, as set out below, are not relevant to that core issue. The provisions for the transfer of a tenancy are clearly intended to provide a prompt remedy in particular in respect of former cohabitants. It is, therefore, very regrettable that some two years after the wife made her application, it remains unresolved.”

Moylan LJ observed at para 10 that “…it can be seen that, by implication, the judge [Mostyn J] must have decided that paragraph 3 of Schedule 7 applied. He did not, however, deal with this expressly”.

The ‘husband’, now represented by leading and junior counsel on a pro bono basis, made three main submissions: (i) that the parties marital status needed to be determined before the court could make a transfer of tenancy under paragraph 2, (ii) that the judge (Mostyn J) had been wrong to conclude that Ukrainian law ‘presumptively’ determined the relief available under the English courts, and (iii) that paragraphs 2 and 3 of Schedule 7 are mutually exclusive: a party to a marriage cannot also proceed as a cohabitant, thereby side-stepping the requirement that an order be made “upon” the making of a divorce order etc.

The ‘wife’, now similarly represented by leading and junior counsel, took a rather more direct approach to the issue – that if the parties were not validly married, the court could proceed to make an order under paragraph 3, on the basis that they had been cohabitants.

Between paragraphs 46 and 61 Moylan LJ reviewed the legal framework and concluded that the relationship between paragraphs 2 and 3 (i.e. whether a party could seek a transfer of tenancy as a spouse and also as a cohabitant) was a ‘straightforward question of statutory interpretation’, which

“[51] …involves an objective assessment of the meaning which a reasonable legislature as a body would be seeking to convey in using the statutory words which are being considered. Lord Nicholls, again in Spath Holme [2001] 2 AC 349, 396, in an important passage stated:

‘The task of the court is often said to be to ascertain the intention of Parliament expressed in the language under consideration. This is correct and may be helpful, so long as it is remembered that the ‘intention of Parliament’ is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used. It is not the subjective intention of the minister or other persons who promoted the legislation. Nor is it the subjective intention of the draftsman, or of individual members or even of a majority of individual members of either House … Thus, when courts say that such-and-such a meaning ‘cannot be what Parliament intended’, they are saying only that the words under consideration cannot reasonably be taken as used by Parliament with that meaning.’”

The Court of Appeal (McFarlane P and Holroyde LJ concurring with Moylan LJ) concluded as follows:

• The court would have to determine that the parties were validly married, because: “…if the parties were married, paragraph 2 and not 3 would apply so that an order could only be made “on making a divorce, nullity of marriage or judicial separation order or at any time after making such an order” and could only take effect, pursuant to paragraph 12, when the divorce/nullity order was made final” (para 62);

• However the parties to a void marriage are within the scope of paragraph 3 (cohabitants) as well as paragraph 2. With a void marriage, “…the remedy of a nullity decree is available but available at the option of the parties (or a person with sufficient interest). Accordingly, parties to a void marriage have the same status as unmarried people who are living together and therefore are, in general terms, cohabitants.” (para 64);

• Similarly, parties to a void marriage can fall within the definition of cohabitants in s.62(1). At para 68:

“…once the power to make a transfer of tenancy order was extended to cohabitants it makes evident good sense that parties to a void marriage should no longer be required to start nullity proceedings for the purposes of obtaining immediate access to justice in this way. Accordingly, adopting the formulation from R (O) v SSHD, at [31], “an objective assessment of the meaning” of the provisions of the FLA 1996 leads to the clear conclusion that parties to a void marriage can be cohabitants for the purposes of paragraph 3 of Schedule 7.”

• It was unnecessary for the judge (Mostyn J) to consider whether a void marriage was ‘analogous to a domestic non-qualifying ceremony’: “…Once it was clear that the marriage was at least void, the court had jurisdiction to make an order under paragraph 3” (para 69);

• However, the Court of Appeal disagreed with Mostyn J’s view that “the binding determination by the foreign law does not necessarily come to a halt at the question of the validity of the ceremony”

“…the remedy or relief which would or might be available if proceedings were taking place in the country in which the marriage or alleged marriage took place are irrelevant to the remedy or relief available under English law. Also, for the avoidance of doubt, it is not necessary to consider what remedy or relief would be available for the purposes of deciding how the marriage is to be classified as a matter of English law: i.e. void, voidable or a non-qualifying ceremony. This is wrong as a matter of principle and would add an unnecessary factor which would potentially be difficult and expensive to determine.” (para 71)

“…The simple principle is that the formal validity, and only the formal validity, of a marriage is determined by the law of the place in which the marriage was celebrated. This clear principle has been well established certainly since Sottomayor v De Barros (No. 1) and has not previously been questioned. Nor has it previously been suggested that this principle might have wider “ramifications” as suggested by the judge. Indeed, with all due respect to the judge, there is nothing in any of the relevant authorities which supports his view that the principle extends to the “ramifications of invalidity”. The principle is confined to the simple question of the formal validity (or invalidity) of the marriage and goes no further.” (para 72)

In conclusion, the Court of Appeal dismissed the ‘husband’s’ appeal: the recorder had jurisdiction to make a transfer of tenancy pursuant to paragraph 3.

Commentary

We are all creatures of habit. Even the most seasoned family law practitioner and judge is more comfortable on the well-travelled paths of the Matrimonial Causes Act 1973 than the rarely visited mountain passes of Schedule 7 of the Family Law Act 1996. Particularly in a case like Tousi v Gaydukova where the status of the parties’ marriage was only drawn to the recorder’s attention after judgment was handed down.

It is axiomatic that the lex loci celebrationis – Ukrainian law – would  determine the essential validity of this marriage. The SJE’s evidence, when it eventually arrived, ruled out a finding that this was a valid marriage under Ukrainian law. Rather, it showed that under Ukrainian law this marriage was absolutely null and utterly void. In consequence, under English law  this could only have been seen as either  a void marriage or a “non-marriage”. Therefore, as Moylan LJ pointed out at para 66, given the definition of cohabitants at s. 62 of the Family Law Act 1996, paragraph 3was going to apply come what may, and the transfer of the tenancy was going to stand.

It could be argued that having taken on board the SJE evidence, Mostyn J should have  summarily revoked Arbuthnot J’s grant of permission to appeal, and refused PTA on all other grounds, on the footing that the appeal was doomed as the tenancy transfer was going to stand, come what may. If that is correct, it could also be argued that Mostyn J’s learned exegesis was somewhat superfluous and that the subsequent grant of permission for a second appeal was misconceived.

The interesting academic question left unanswered by Moylan LJ’s judgment is what the decision of the English Court would have been had the question of the validity of this marriage come before the court in the normal way i.e. via a nullity petition[1]. Would the decision have been to grant a decree  of nullity, or would it have been to dismiss the petition? Mostyn J’s judgment says that the petition should be dismissed, because we should respect the consequences or ramifications of the finding that would be made under Ukrainian law, namely that this marriage is absolutely null and utterly void and is in character akin to our concept of a “non-marriage”. Moylan LJ would not allow those consequences to be taken into account, but his judgment does not give a guide how as a matter of English public policy the court should treat a marriage celebrated in a foreign place which was celebrated in blatant breach of the requirements of form in that place. Thus, it is it is hard to predict on the facts of this case whether the outcome would have been the grant of a decree of nullity or a dismissal of the petition.

Alexander Chandler KC

9 March 2024

[1] the recorder’s judgment pre-dated the coming into force on 5 April 2022 of the Divorce, Dissolution and Separation Act 2020 with, among other things, the change of language for divorce and nullity procedure

FINANCIAL REMEDIES IN BITE SIZED CHUNKS (UPDATED, 25.11.25)

As practitioners, what we like above all is a concise summary of the law, ideally set out in Roman sub-paragraphs, under the heading “Pulling the threads together…”. This avoids the difficult and time-consuming task of having to analyse for ourselves what guidance can properly be drawn from a case, or even what was its ratio¹.

Sir Nicholas Mostyn was the master of slicing and dicing complex issues of procedure and law into bite-sized chunks. It is unsurprising that the most cited financial remedy cases include Mostyn J’s judgments on intervenors (TL v ML [2005] EWHC 2860 (Fam)), freezing orders (UL v BK [2013] EWHC 1735 (Fam)) and spousal maintenance (SS v NS [2014] EWHC 4183 (Fam).

Following Mostyn J’s retirement, the baton has passed to Mr Justice Peel who since 26 April 2022 has held the position as National Lead Judge of the Financial Remedies Court. Peel J has followed Mostyn’s lead in succinctly summarising the law in judgments ranging from an overview of the general principles (WC v HC [2022] EWFC 22), how to plead conduct (Tsvetkov v Khayrova [2023] EWFC 130), Daniels v Walker applications (GA v EL [2023] EWFC 187) and, most recently, Schedule 1 claims (Y v Z (Schedule 1) [2024] EWFC 4

The attached table sets out the location of concise summaries of the law, contained in judgments handed down generally at High Court level. The table does not contain all of the leading cases such as White and McFarlane; it is more of a ‘summary of the summaries’.

To some extent, this is a companion piece to blogs I have written about procedure (e.g. The Winds of Change). Or if you like, it is a guide to the Financial Remedies Multiverse.

Alexander Chandler KC

6 February 2024, updated 11 July 2024

1. While only the ratio of a case has binding effect, dicta and other guidance can be highly influential on another court. See Moore Bick LJ in MK v CK [2011] EWCA Civ 793 at [86] “…it is binding in the true sense only for its ratio decidendi. Nonetheless, I would also accept that where this court gives guidance on the proper approach to take in resolving any particular kind of dispute, judges at all levels must pay heed to that guidance and depart from it only after careful deliberation and when it is clear that the particular circumstances of the case require them to do so in order to give effect to fundamental principles”. Also see Brooke LJ in KU v Liverpool [2005] EWCA Civ 475 at [48] “…Practice directions provide invaluable guidance to matters of practice in the civil courts, but in so far as they contain statements of the law which are wrong they carry no authority at all.” ↩︎
2. Clarke v Clarke [2022] EWHC 2698 (Fam), at [36] Mostyn J proposed adding a 17th principle, that the court’s goal “should be to achieve, if not immediately, then at a defined date in the future, a complete economic separation between the parties. ↩︎
3. With thanks to Nicholas Allen KC for suggesting this and the following entry ↩︎

As the old saying goes, you wait ages for a London bus; then two arrive at once.

Today (29 November 2023) the Supreme Court (Lords Hodge, Lloyd-Jones, Briggs, Burros and Stephens) handed down judgment in TUI v Griffiths [2023] UKSC 48 (“Griffiths”), while the Court of Appeal (Carr LCJ, Vos MR, Birss LJ) handed down judgment in Churchill v Merthyr Tydfil CBC [2023] EWCA Civ 1416 (“Churchill”).

In Griffiths, the claimant pursued a consumer claim against the defendant package holiday provider, having allegedly contracted gastric illness while on holiday in Turkey. Churchill concerned the alleged encroachment of Japanese knotweed into the claimant’s property at (spell check on) 9 Gellifaelog Terrace, Penydarren, Merthyr Tydfil.

What relevance, one might ask, does either decision have to family law in general and financial remedies specifically? Or, for those old enough to remember the Not The Nine O’Clock News skit about That’s Life, what does this have to do with us?

The answer involves general legal issues of some importance; namely (1) does the court does have the power to compel non-court-based dispute resolution?, and (2) fair trial principles including whether in civil litigation a party who criticises an uncontroverted expert has to call them to test their evidence, as opposed to criticising it in submissions. Some tentative conclusions are set out at the end of this blog.

Churchill : Headline point: the court does have the power to compel ADR/ NCDR

In Churchill the defendant local authority applied to stay the claim, arguing that the claimant should have made use of its Corporate Complaints Procedure. At a directions hearing on 12 May 2022, DDJ Kempton Rees dismissed the stay application, concluding that the court was bound to follow Dyson LJ’s earlier statement of the law in Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 (“Halsey”), to the effect that the court could not compel parties to mediate. In Halsey at [9], speaking for the court (Ward, Laws LLJ), Dyson LJ commented:

“It seems to us that to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right of access to the court”

The local authority appealed, which was referred by the circuit judge (HHJ Harrison) to the Court of Appeal. The central issue was whether the court could compel parties to mediate (or otherwise attend ADR (alternative dispute resolution), which some have re-branded as NCDR (non-court dispute resolution)). However the first question was whether or not the Court of Appeal in Griffiths was bound by its earlier (2004) decision in Halsey.

Precedent

Without wanting this blog to become a law lecture, it is important at this stage to remind oneself of the rules of precedent. The decisions of a superior court bind an inferior court. The main reasoning or ‘ratio decidendi’ of a judgment has binding effect, whereas extraneous judicial comment or ‘obiter dicta’ does not. Or, as the Earl of Halsbury put it in Quinn v Leathem [1901] UKHL 2

“…a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it.”

It follows that the Court of Appeal is bound by the Supreme Court/ House of Lords, and its decisions binds circuit judges and district judges.

Must the Court of Appeal follow its own earlier decisions? In Young v Bristol Aeroplane [1944] KB 718 the Court of Appeal held that it generally should, save in three areas: (i) where two decisions are in conflict, (ii) where an earlier CA decision cannot stand with higher authority or (iii) where a decision has been made in ignorance or forgetfulness of inconsistent authority (‘per incuriam’ – a concept which has been of great assistance to Mr Justice Mostyn in cases such as UL v BK [2013] EWHC 1735 (Fam) at [27-34]). Or, indeed, where it turns out that there has been a confusion between what part of an earlier decision was binding, or, on the facts of Griffiths, have parts of the judgment of Dyson LJ in Halsey been applied as binding / ratio when in fact it should have been regarded as non-binding obiter?

Outcome in Churchill

Vos MR handed down the judgment of the court. The following points should be noted:

• As to whether the above passage from the judgment of Dyson LJ was binding (as the main reasoning or ‘ratio’ of the case) or not (because it amounted to comment, or ‘obiter’), the court followed Leggatt LJ in R (Youngsam) v Parole Board [2019] EWCA Civ 229 to the effect that ‘the ratio is… part of the best or preferred justification for the conclusion reached’. The passages contained at [9] and [10] at Halsey (quoted in part above, and relied on at first instance) were not a necessary part of the reasoning that led to the decision in the case, and so were not part of the ratio decidendi (i.e. were not binding) (Vos MR at [19-21]);

• Having reviewed international (ECtHR and CJEU) and domestic cases on the constitutional right of access to the court, Vos MR concluded that the power does exist to stay proceedings for, or order the parties to attend in a non-court-based dispute resolution process.

• However, that power must be exercised in such a way that does not impair a claimant’s article 6 right, and is proportionate to achieving the legitimate aim ot settling the dispute fairly, quickly and at reasonable cost;

• However Vos MR declines to lay down fixed principles as to what will be relevant in determining the question of any stay, although setting out between [61-63] factors that might be relevant; and

• Vos MR concludes by singing the praises of NCDR: “Even with initially unwilling parties, mediation can often be successful/ Mediation, early neutral evaluation and other means of non-court-based dispute resolution are, in general terms, cheaper and quicker than court-based solutions. Whether the court should order or facilitate any particular method… is a matter of the court’s discretion, to which many factors will be relevant” [59]

Griffiths: Headline point: Procedural fairness may require that any criticism of an expert is put to that expert in cross-examination

How exactly does a modest multitrack claim (£29,000 sought for pain, suffering and loss of amenity relating to a package holiday) end up, 7 years after issue (August 2017) and over 4 years after the original trial (June 2019), in the Supreme Court?

The answer lies in the court’s treatment of the claimant’s expert evidence. Both parties were given permission to rely on expert evidence from a gastroenterologist and a microbiologist. The claimant produced and relied upon a short report from one Professor Pennington; for various reasons, the defendant did not call their own expert evidence, but had put clarification questions to Professor Pennington which the expert had answered. The defendants did not require the expert to attend court to be cross-examined, but their counsel impugned its reliability in submissions.

At first instance, the trial judge (HHJ Truman) found that the claimant had been a truthful witness but found that the report of the expert (who was not called) wanting, as they had not provided the court with sufficient information to discharge the burden of proof in relation to causation.

Appeal to High Court and Court of Appeal

The claimant appealed successfully to the High Court, raising the fundamental question of how the court should approach uncontroverted expert evidence. Martin Spencer J allowed the appeal ([2020] EWHC 2268), holding that Professor Pennington had in fact substantially complied with the CPR Practice Direction on experts and that his report should not have been dismissed as ‘ipse dixit’ (i.e. containing assertions without proof). TUI then appealed to the Court of Appeal ([2021] EWCA Civ 1442) who were split as follows:

• In the majority, Asplin LJ overruled Martin Spencer J and concluded that there is no strict rule that prevents the court from considering the content of an expert’s report where it is uncontroverted (i.e. challenged by contradictory evidence and where there has been no cross-examination). Nugee LJ held that the trial judge should evaluate all of the evidence including any uncontroverted expert evidence and decide what weight to attach to it;
• In the minority, Bean LJ referred to the ‘trite’ rule that a party is required to challenge in cross-examination the evidence of any party if he wants to submit that the evidence should not be accepted.

Permission was then granted for an appeal to the Supreme Court, to consider what is the scope of the rule that a party should challenge by cross-examination evidence that it wishes to impugn in its submissions at the end of the trial?

Outcome in Griffiths

The Supreme Court allowed Mr Griffiths appeal and concluded that it was not fair for TUI to advance the detailed criticisms of Professor Pennington’s report in its submissions and without having the expert called to give evidence. Speaking for the court, Lord Hodge concluded as follows:

(1) General principle in relation to expert evidence

“[36] …as a general rule, the judge has the task of assessing the evidence of an expert for its adequacy and persuasiveness. But it is trite law that English law operates an adversarial system, and the parties frame the issues for the judge to decide in their pleadings and their conduct in the trial. It is also trite law that, in that context, it is an important part of a judge’s role to make sure that the proceedings are fair. At the heart of this appeal lies the question of the requirements of a fair trial”

(2) The need for an expert report to set out its reasoning

“[37] an expert’s task is to assist the judge in matters outside the judge’s expertise, and it is the judge’s role to decide the case, the quality of an expert’s reasoning is of prime importance. This court gave guidance on the role of the expert in Kennedy v Cordia [2016] UKSC 6, in which, in the judgment of Lord Reed and Lord Hodge with whom the other Justices agreed, it was stated:

“48. An expert must explain the basis of his or her evidence when it is not personal observation or sensation; mere assertion or ‘bare ipse dixit’ carries little weight… If anything, the suggestion that an unsubstantiated ipse dixit carries little weight is understated; in our view such evidence is worthless… As Lord Prosser pithily stated in Dingley v Chief Constable, Strathclyde Police 1998 SC 548, 604: ‘As with judicial or other opinions, what carries weight is the reasoning, not the conclusion.’”

“[39]  Martin Spencer J opined that the minimum standards for an expert report were to be found in CPR PD 35. He suggested that that practice direction and the law did not require an expert to set out his or her reasoning. I respectfully disagree…”

(3) The nature of the court’s investigation (in civil proceedings)

“[41] … In an adversarial system, subject to the constraints of case management, the parties frame the issues which the court is to determine; it is not normally part of the court’s business to investigate admitted facts: Akhtar v Boland [2014] EWCA Civ 872; [2015] 1 All ER 664, para 16 per Sir Stanley Burnton. The trial judge’s role is normally limited to determining the disputed issues which the parties present and to determining those issues based on the evidence which the parties adduce. The trial judge does justice between the parties in so doing”

(4) Can you impugn a witness (including an expert) without having tested their evidence cross-examination

In other words, to what extend does the rule in Browne v Dunn (1893) 6 R 67 still apply, i.e. that where a party impugns a witness’s account of events, that must be put to the witness in cross-examination. The scope of this rule has exercised the higher courts in earlier cases such as Chen v Ng [2017] UKPC 27 (Privy Council), although it has only been considered in a family case in the mountainous principality of Court 50, where Mr Justice Mostyn considered it in AO v LA [2023] EWHC 83 (Fam) at [63-65] (also see Sait v GMC [2018] EWHC 3160 (Admin) at [41-56].

After conducting an exhaustive survey of the authorities (which this blog cannot do justice to) Lord Hodge concludes as follows:

“[61] … there is a long-established rule as stated in Phipson at para 12.12 with which practising barristers would be familiar, as Bean LJ suggested in para 87 of his judgment. There are also circumstances in which the rule may not apply. Several come to mind….

[70]. In conclusion, the status and application of the rule in Browne v Dunn and the other cases which I have discussed can be summarised in the following propositions:

(i) The general rule in civil cases, as stated in Phipson, 20th ed, para 12-12, is that a party is required to challenge by cross-examination the evidence of any witness of the opposing party on a material point which he or she wishes to submit to the court should not be accepted. That rule extends to both witnesses as to fact and expert witnesses.

(ii) In an adversarial system of justice, the purpose of the rule is to make sure that the trial is fair.

(iii) The rationale of the rule, ie preserving the fairness of the trial, includes fairness to the party who has adduced the evidence of the impugned witness.

(iv) Maintaining the fairness of the trial includes fairness to the witness whose evidence is being impugned, whether on the basis of dishonesty, inaccuracy or other inadequacy. An expert witness, in particular, may have a strong professional interest in maintaining his or her reputation from a challenge of inaccuracy or inadequacy as well as from a challenge to the expert’s honesty.

(v) Maintaining such fairness also includes enabling the judge to make a proper assessment of all the evidence to achieve justice in the cause. The rule is directed to the integrity of the court process itself.

(vi) Cross-examination gives the witness the opportunity to explain or clarify his or her evidence. That opportunity is particularly important when the opposing party intends to accuse the witness of dishonesty, but there is no principled basis for confining the rule to cases of dishonesty.

(vii) The rule should not be applied rigidly. It is not an inflexible rule and there is bound to be some relaxation of the rule, as the current edition of Phipson recognises in para 12.12 in sub-paragraphs which follow those which I have quoted in para 42 above. Its application depends upon the circumstances of the case as the criterion is the overall fairness of the trial. Thus, where it would be disproportionate to cross-examine at length or where, as in Chen v Ng, the trial judge has set a limit on the time for cross-examination, those circumstances would be relevant considerations in the court’s decision on the application of the rule.

(viii) There are also circumstances in which the rule may not apply: see paras 61-68 above for examples of such circumstances”

Conclusion

So, what does this all have to do with family lawyers?

On one hand, as we are often reminded, family law is not a desert island and general principles of law should be applied in the Family Division as in other Divisions of the High Court.

On the other, there are obvious differences between family procedure and civil procedure – perhaps most obviously, the court’s function in financial remedies is quasi-inquisitorial, whereby sometimes it has to explore issues in the overall objective of a fair outcome, even where those points have n ot been advanced by either side. As Ryder LJ commented in Re BM [2021] EWCA Civ 1371 at [23], care should be exercised before ‘…harvesting obiter dicta expressed in one context and seeking to transplant them into another’.

My tentative conclusions are as follows: Churchill is an important milestone in the development of ADR (or, for those who take umbrage at the word ‘alternative’, NCDR or non-court-dispute resolution). While applications to stay are rare in financial remedies, they are commonplace in TLATA and there are likely to be cases where a defendant is able to compel a stay for mediation or ENE even where the claimant’s position is that this will only lead to delay.

It will probably take some time to absorb the full impact of the judgment Griffiths, which is a tour de force, dealing with some fundamental questions about how a case should be heard.

It will be interesting to see how it impacts in family work, where the court almost invariably directs that there should be a single joint expert. As a matter of procedural fairness one cannot impugn an expert’s opinion without giving the expert notice of you intention to argue that the opinion should be rejected. That does not have to be put to the expert in cross-examination although it might be wise to do so in most cases. In contrast, where there is a dispute of concrete fact about a key issue in the case, the asserted fact has to be put squarely to the actor disputing it in cross-examination.

While there will be cases where the court may feel that criticisms do not require a SJE to be called (because the point is self evident, such as a mathematical miscalculation, or where the point has been fully covered in clarification questions), there will be cases where advocates will need to reflect carefully on Griffiths, to consider if the fair conduct of a hearing will require an expert (or a witness more generally) being called to give evidence, as opposed to points being taken in written and oral submissions.

Alexander Chandler KC

29 November 2023

Once upon a time, it was possible to seek damages for a broken engagement. Under English law before 1 January 1971, an engagement to marry involved an enforceable promise. Where a male fiancé broke off the engagement the female fiancée could pursue an action for breach of promise of marriage. (The law did not work the other way around, so the man had no legal remedy where the woman broke it off). The common law allowed for a number of possible defences including false representation, fraudulent concealment in material particulars, bad character or incapacity. Damages were not assessed against any fixed standard and were largely in the discretion of the judge (and not the special jury who would sometimes determine liability).

One of the last defendants to be successfully sued was George Best who ultimately settled out of court to his former fiancée Eva Haraldsted, to whom he had proposed eight days after meeting her for the first time (see photo). The reported settlement was £500, equivalent to around £11,000 today.

In October 1969, the Law Commission recommended modernising the law to abolish actions for breach of promise, which was put into effect by s.1 of the Law Reform (Miscellaneous Provisions) Act 1970. Each section of that commendably short statute is noteworthy: s.2 extended certain limited marital property rights to engaged couples (referred to in greater detail below); s.3 created a rebuttal presumption that an engagement ring was an absolute gift and s.5 abolished the torts of seduction, enticement, and harbouring. (The mind boggles at the thought of our predecessors attending court to deal with a short seduction matter or damages for a jilting).

What now is the legal significance of an engagement?

Significance of an engagement in a claim for financial remedies

As family lawyers, we have become used to the rather strange concept that the duration of a marriage isn’t simply working out the period of time between a wedding and divorce. It starts with the date when the parties entered into a committed, settled (and in many cases. cohabiting) relationship, and ends with the final date of separation.

While this question will be of only academic interest in most cases where the magnetic factor is financial need, the duration of the marriage can be hugely significant where the issue is determining the extent of a sharing claim. Many millions of pounds can, and do, turn on what period of time is encompassed by the marriage.

The latest case on this issue is Peel J’s decision in VV v VV [2022] EWFC 41, which is about as bad as it gets when it comes to anonymised case titles: confusing both on paper (it’s V V not W) and also orally, for anyone who isn’t aware of the convention of pronouncing “v” as “and” (otherwise, phonetically, it would be “V V V V V”).

That detail aside, VV is another magisterial judgment from Mr Justice Peel which between [40] and [46] reviews the authorities in relation to the vexed issue of the duration of a marriage, and concluded that:

[44] … where cohabitation is in dispute, the court may need to inquire to an extent into the state of the relationship when evaluating the durability and permanence of the alleged cohabitation. 

[45] … To the above jurisprudence I would add that the court should also look at the parties’ respective intentions when inquiring into cohabitation. Where one or both parties do not think they are in a quasi-marital arrangement, or are equivocal about it, that may weaken the cohabitation case. Where, by contrast, they both consider themselves to be in a quasi-marital arrangement, that is likely to strengthen the cohabitation case. 

[46] … In the end, it is a fact specific inquiry. Human relationships are varied and complex; they do not easily lend themselves to pigeon holing. The essential inquiry is whether the pre-marital relationship is of such a nature as to be treated as akin to marriage. 

The court then turned to a question which, perhaps surprisingly, has not been considered before. What is the relevance of the date of the parties’ engagement in consideration of a sharing claim? Should this be taken into account? The court’s answer was that, as with so many issues…

[48] It must surely depend on the circumstances. It is unlikely, for example, that a lengthy period of engagement, with few or no indicators of cohabitation, would justify an entitlement to assets accrued pre-marriage. It is hard to see how engagement without mutual commitment and shared lives akin to a marital relationship would come close to justifying an equal share (or any share) of assets built up between the date of engagement and the date of marriage. In my view, engagement may be an indicator of the strength of the commitment and shared life, and may be an evidential factor pointing towards a period of cohabitation, but it should not ordinarily be seen as a separate event which by itself gives rise to a sharing entitlement. 

In other words, in a high value claim, where the court is concerned with establishing the quantum of a sharing claim, the date of engagement may be relevant, although it may not be determinative if the engagement was not accompanied by mutual commitment such as cohabitation. (Query what an engagement without mutual commitment might look like?)

Significance of engagement where the parties do not marry

One of the dustiest corners of the law relates to s.2 of the Law Reform (Miscellaneous Provisions) Act 1970 (see above), which amends s.37 of the Matrimonial Proceedings and Property Act 1970 so that a formerly engaged party may claim a share, or an enhanced share, based upon her substantial contributions.

Section 37 of the MPPA 1970) not to be mistaken with s.37 MCA 1973) is very far from a model of clear Parliamentary drafting. It provides as follows:

“…It is hereby declared that where a husband or wife contributes in money or money’s worth to the improvement of real or personal property in which or in the proceeds of sale of which either or both of them has or have a beneficial interest, the husband or wife so contributing shall, if the contribution is of a substantial nature and subject to any agreement between them to the contrary express or implied, be treated as having then acquired by virtue of his or her contribution a share or an enlarged share, as the case may be, in that beneficial interest of such an extent as may have been then agreed or, in default of such agreement, as may seem in all the circumstances just to any court before which the question of the existence or extent of the beneficial interest of the husband or wife arises (whether in proceedings between them or in any other proceedings).”

In other words, a claim might be pursued where the following conditions are met:

• the parties were engaged (which will have to be proven if in dispute);
• a formerly engaged party has made a substantial contribution in money or money’s worth; 

• to the improvement of real or personal property in which she or the other party has a beneficial interest; 

• the claimant may be treated as having thereby acquired a share, or an enlarged share, to the extent that either was agreed or, in default of agreement, might seem just;

There is, unfortunately, an almost complete dearth of authority as to how the court should interpret these provisions, save that (a) Mossop v Mossop [1989] Fam 77 makes it clear that the applicable law is the law of property and trusts. There is no jurisdiction to make a property adjustment order between an engaged couple who had not been married, and (b) in the delightfully named Dibble v Pfluger [2010] EWCA Civ 1005 the Court of Appeal reminded the parties that they both had overlooked the possibility of mounting a claim under Section 37 and remitted the matter back for rehearing.

Alternatively, an engaged party may seek declaratory relief and orders for sale pursuant to s.17 of the Married Women’s Property Act 1882. On such an application, the court will apply the law of trusts and the three year limitation period will apply.

Alexander Chandler KC

21 July 2023

PRIVACY, SECRECY AND THE FINANCIAL REMEDIES COURT

The Go-Between by L.P. Hartley starts with one of the most celebrated opening lines in literature:

“The past is a foreign country; they do things differently there”.

Historically, the same could be said of the Family Division, where a husband or wife could obtain a Mareva injunction, or pierce the corporate veil, in circumstances which would surprise commercial litigants. “The matrimonial field calls for a different approach”, held Lincoln J in Shipman [1991] 1 FLR 250, “To my mind the circumstances here call for the injunction to continue. If it were discharged, the husband could well change his intentions”. Family law was effectively a foreign country (‘a desert island’, even an ‘Alsatia’); the judges did things differently there.

Over the past fifteen years, the concept of family law exceptionalism – or, to quote Mr Justice Mostyn, ‘the cult of the silo’ – has been in steady retreat. Sir James Munby led the charge in a series of judgments that reminded practitioners that:

‘…even in the Family Division, a spouse who seeks to extend her claim for ancillary relief to assets which appear to be in the hands of someone other than her husband must identify, and by reference to established principle, some proper basis for doing so… the court can[not] simply ride roughshod over established principle… the relevant legal principles which have to be applied are precisely the same in the [Family] Division as in the other two Divisions. There is not one law of ‘sham’ in the Chancery Division and another law of sham in the Family Division… just as there is but one set of principles, again equally applicable in all three Divisions, determining whether or not it is appropriate to “pierce the corporate veil”.’ A v A [2007] EWHC 99 (Fam) at [19, 21]

“…… the illusion that there is some special inspiration of common sense infusing the Family judges and which is lacking in our brethren in the Chancery Division – an illusion no doubt fostered by our inveterate practice of sitting in private – seems to be as prevalent today as ever. It cannot be stressed too much that there is simply no basis for this illusion… The Family Division applies precisely the same principles, and in precisely the same way, as the Chancery Division, or for that matter the Queen’s Bench Division.” (Whig v Whig [2007] EWHC 1856 (Fam) [58, 60])

“…The Family Division is part of the High Court. It is not some legal Alsatia where the common law and equity do not apply. The rules of agency apply there as much as elsewhere.” (Richardson v Richardson [2011] EWCA Civ 79 at [53]).

That conclusion, that legal principle applies across the board, was reached by Sir James Munby, Lord Sumption JSC and Mr Justice Mostyn in cases involving: sham (A v A (above)), third party interests (TL v ML [2005] EWHC 2860 (Fam)), agency (Richardson (above)), piercing the corporate veil (Prest v Petrodel [2013] UKSC 34), freezing orders (UL v BK [2013] EWHC 1735), the issue of a witness summons (Kerman v Akhmedova [2018] EWCA Civ 307) etc. To that list one can add Court of Appeal decisions that disapproved family exceptions in relation the human rights of a judgment debtor (Mubarak v Mubarak [2001] 1 FLR 698) and self-help in disclosure (Imerman v Tchenguiz [2010] EWCA Civ 908).

That is not to say that the process of reunification, or reconciliation of the desert island with the mainland, is, or could ever be perfect. There remain fundamental differences between the family court’s ‘quasi-inquisitorial’ function, particularly where a child’s welfare is at stake, and how civil claims are determined. Anyone who has dealt with a combined Schedule 1 and TLATA case will know just how different it is to case manage, or meld, family and civil claims together, down to the conflicting rules about bundles and position statements.

Transparency

One notable hold out in the retreat of family law exceptionalism has been the tradition of secrecy in the family court. As President of the Family Division, Sir James Munby took steps to promote greater transparency, encouraging the publication of more judgments (Practice Guidance of 16 January 2014) and extending the existing right of the press to attend most family hearings to legal bloggers (now PD27B). However, in written submissions to Sir Andrew McFarlane’s Transparency Review, dated 6 May 2011, Sir James acknowledged that those attempts to open up the family court had actually achieved very little: “…the practical impact…has been minimal”, in large part due to (i) the “chilling effect” of Section 12 of the Administration of Justice Act 1960, (ii) that the right of accredited members of the press and legal bloggers to attend court had not been accompanied by a relaxation of the rules about what could be published, or which documents could be accessed. The law in relation to press access to documents in the family court remained inordinately complex and unpredictable. The position had become further confused by a difference of approach to the court’s discretion to sit in open court, with one Family Division Judge (Mr Justice Holman) generally sitting in open court, while his colleagues generally sat in private.

On 28 October 2021, Sir Andrew McFarlane published ‘Confidence and Confidentiality’, which received the baton from Sir James Munby, and advanced a series of ambitious plans to finally open up the family court, including a proposed reform of the law and relaxation of s.12 to allow journalists to access court documents and publish what takes place in the family court, with the encouragement for the publication of 10% of all family court judgements.

Those plans have been put out to consultation and the Farquhar Committee has been given the task of preparing a report on issues of transparency in the Financial Remedies Court. That report (Farquhar III: the Final Frontier[1]) is still awaited.

Five decisions of Mostyn J on Privacy and Secrecy (November 2021 – June 2022)

The reason for this blog is to reflect on five recent judgments of Mr Justice Mostyn which, taken as a whole, involve a radical review of the practices of the family court, and the conclusion that we as family lawyers have been misapplying the law, in relation to the secrecy of financial remedy proceedings, since the Second World War.

A key theme in these authorities is the distinction between privacy (e.g., a court sitting in in camera or in chambers) and the proceedings being shrouded in secrecy. The decisions are as follows:

BT v CU [2021] EWFC 87

A v M [2021] EWFC 89         

Aylward-Davies v Chesterman [2022] EWFC 4

Xanthopoulos v Rakshina [2022] EWFC 30

Gallagher v Gallagher (No. 1) (Reporting Restrictions) [2022] EWFC 52

Space prevents a detailed examination of each of these cases. However, the key points, in relation to the theme of this blog, are as follows:

BT v CU(1 November 2021)

The case started with a question: “was COVID capable of being a Barder event?” and concluded in a wide-ranging judgment that critically examined the law in relation to the court’s power to review executory orders, the distinction between lump sum orders by instalment and a series of lump sums and, finally, the practice of anonymising judgments.

In BT v CU, Mostyn J concluded that moves towards transparency had called into question the family court’s inveterate practice of anonymising first instance financial remedy judgment (cf. Lykiardopulo [2010] EWCA Civ 1315 at [45] and [79]), whereby the convention of naming the parties only on appeal is now “impossible to defend”. While the court anonymised the parties’ names in BT v CU (in part because both parties had a reasonable expectation that they would not be named), Mostyn J signalled that “…my default position from now on will be to publish financial remedy judgments in full  without anonymisation, save that any children will continue to be granted anonymity. Derogation from this principle will need to be distinctly justified by reference to specific facts, rather than by reliance on generalisations”

A v M(9 November 2021)

In A v M, Mostyn J again anonymised his judgment but repeated his warning as to his default position in future. The learned judge turned his attention to the historical development of the law in relation to anonymisation, and concluded

“[105]… I do not believe that there is any such right [to anonymity]. My personal research tells me that before the 1939 – 1945 War, and indeed until much more recently, there was no anonymity in the Probate Divorce and Admiralty Division (‘PDA’), children and nullity cases apart, and  even then only sometimes…Even in nullity cases a general rule that they should be heard in camera was unlawful: Scott v Scott [1913] AC 417, HL. That case, far from being a paean to PDA [Probate Divorce and Admiralty Division] exceptionality, is, in truth, precisely the contrary. It is a clear statement (to adopt modern metaphors) that the PDA was neither Alsatia nor a desert island: see Earl Loreburn at 447, where he succinctly stated: “… the Divorce Court is bound by the general rule of publicity applicable to the High Court and subject to the same exception.”

[106] … So far as I can tell, the practice of anonymising judgments given by High Court judges is explicable only by reference to the hearing having been in chambers and behind closed doors. But that of itself would not explain the adoption of the practice as a chambers judgment is not secret and is publishable whether or not anonymised: see Clibbery v Allan and Another [2001] 2 FLR 819 at [24] – [33], [74], [117] – [118] and [150]. I have not been able to discover any statement of practice made at any time before Thorpe LJ’s judgment in Lykiardopulo v Lykiardopulo [2010] EWCA Civ 1315, [2011] 1 FLR 1427 (at [45] and [79]) explaining, let alone justifying, the convention (whenever it arose) of routinely anonymising almost all ancillary relief judgments given by High Court judges. That convention is very hard, if not impossible, to square with the true message of Scott v Scott which is that the Family Courts are not a desert island.

Aylward-Davies v Chesterman [2022] EWFC 4 (4 February 2022)

The case involved two litigants in person and an application for a declaration of parentage. The judgment is noteworthy, (i) as the first case in which Mostyn J followed his default position and named the parties, and (ii) because the learned judge cast the net beyond the question of anonymisation to the bigger question of whether the press could report financial remedy proceedings. Mostyn J concluded as follows:

[27] Had a member of the press or a legal blogger attended I consider that they could have reported everything that they heard during the proceedings. There are no minor children affected even peripherally by the application. It is impossible to see on what basis a reporting restriction order could have been made (italics added).

That view runs contrary to the Court of Appeal’s conclusions in Clibbery v Allen [2002] EWCA Civ 45, per Thorpe LJ at [72] which justified the confidentiality of financial remedy proceedings (to the extent that they were not protected by s.12 of the 1960 Act) by reference to the implied undertaking:

“…the obligation on the parties to make full and frank disclosure in their financial disputes was of such importance that it was in the public interest to preserve confidentiality of that information by means of the implied undertaking. In order to achieve compliance with disclosure by the party under the obligation to do so, the party seeking the disclosure is required by the court only to use that information for the purposes of the proceedings. It is the protection provided by the court in cases of compulsion. Ancillary relief applications are appropriately heard in private in accordance with the 1991 Rules, see above. The public may not, without leave of the court, hear the evidence given in these applications. It would make a nonsense of the use of an implied undertaking if information about the means of a party, in some cases sensitive information, could be made public as soon as the substantive hearing commenced. Information disclosed under the compulsion of ancillary relief proceedings is, in my judgment, protected by the implied undertaking, before, during and after the proceedings are completed. 

Xanthopoulos v Rakshina [2022] EWFC 30 (12 April 2022)

The second half of Mostyn J’s judgment in Xanthopoulous, from paragraph 74 to 139, contains a magisterial survey of the development of law in relation to anonymity, commencing with the Matrimonial Causes Act 1857, placing heavy emphasis upon the dissenting judgment of Fletcher Moulton LJ in the Court of Appeal in Scott v Scott [1912] P24, which 110 years after it was handed down, now seems remarkably prescient (if still somewhat archaic in its language): “I cannot forbear adding that in my opinion nothing would be more detrimental to the administration of justice in any country than to entrust the judges with the power of covering the proceedings before them with the mantle of inviolable secrecy.”. Mostyn J proceeds to review the development of the law, including Clibbery v Allen, applying great significance to the 2009 reforms that first gave members of the press the right to attend most family hearings (originally FPR 1991 r. 10.28, now FPR 27.11).

Mostyn J’s conclusion is radical:

“[113] … it is now clear to me that the reasoning that led to the imposition of a mantle of secrecy in all ancillary relief cases stood on a very shaky foundation. The matter was put beyond doubt seven years later by a rule change… [permitting journalists to be present]

[115] … In my judgment, the privacy of the proceedings, which is the key factor relied on in Clibbery v Allan, is extinguished by the permitted presence of journalists or bloggers under this hybrid arrangement. That permitted presence means that the proceedings are to be treated as if in open court for the purposes of para 106 of Thorpe LJ’s judgment. In my opinion, in the absence of a specific reporting restriction order, a journalist or blogger who receives information by virtue of being present during the proceedings, is fully entitled to publish that information

…

In conclusion, the court concluded (i) there is no proper basis for the standard rubric that appears on court judgments, (ii) that the Judicial Proceedings (Regulation of Reports) Act 1926 does not apply to financial remedy proceedings, and (iii) with regards the issue of anonymisation

[138] …The correct question is not: “Why is it in the public interest that the parties should be named?” but rather: “Why is it in the public interest that the parties should be anonymous?”

If the correct question is asked then the burden of proof rightly falls on the party seeking to prevent names being published rather than on the party or journalist/blogger seeking to publish them.

Gallagher v Gallagher (No. 1) (Reporting Restrictions) [2022] EWFC 52 (13 June 2022)

The last of this pentalogy of judgments is Gallagher in which the court identifies a checklist of the following eight principles (at [5]):

i) From the very start of the era of judicial divorce, proceedings had to be conducted either in open court or in chambers “as if sitting in open court”. There was not the slightest hint that matrimonial proceedings would be secret save in nullity cases alleging incapacity or where the ends of justice might be defeated. The decision of the House of Lords in Scott v Scott [1913] AC 417 definitively established that the Divorce Court was governed by the same principles in respect of publicity as other courts.

ii) By FPR 27.10 and 27.11, financial remedy proceedings are heard “in private”. The correct interpretation of these rules, in the light of Scott v Scott, is that they do no more than to provide for partial privacy at the hearing. They prevent most members of the general public from physically watching the case. Those rules do not impose secrecy as to the facts of the case.

iii) There is nothing in the various iterations of the Divorce Rules, Matrimonial Causes Rules, Family Procedure Rules or RSC Order 32 r. 11 supporting a view that proceedings heard in the Judge’s or Registrar’s chambers were secret. A chambers’ judgment is not secret and is publishable. Furthermore, the change of language in the FPR 2010 from “in chambers” to “in private” did not presage that ancillary relief proceedings should become more secret.

iv) By FPR 27.11, journalists and bloggers can attend a financial remedy hearing. If the case does not relate wholly or mainly to child maintenance, and in the absence of a valid reporting restriction or anonymity order, they can report anything they see or hear at the hearing. That some of the material under discussion would have been disclosed compulsorily does not constrain their right to report the hearing. The power under FPR 27.11(3)(b) to exclude a journalist or blogger to prevent justice being impeded or prejudiced confirms the unrestricted reportability of the hearing.

v) In the absence of a valid reporting restriction order the parties can talk to whomsoever they like about a financial remedy hearing, including giving an interview to the press. But they are bound by the implied undertaking not to make ulterior use of documents compulsorily disclosed by their opponents. This means that they cannot show such documents to a journalist unless that journalist was covering the case.

vi) The standard rubric on financial remedy judgments providing for anonymity cannot prevent full reporting of the proceedings or the judgment. This is because it is not a reporting restriction injunction, not merely because none of the procedures for making such an order have been complied with, but because it manifestly is not an injunction. It is not an anonymity order under CPR 39.2(4), not merely because no process for making such an order was followed, but more fundamentally because it is not such an order. Such an anonymity order can only be made exceptionally. The general rule is that the names of the parties to an action are included in orders and judgments of the court. There is no general exception for cases where private matters are in issue. An order for anonymity (or any other order restraining the publication of the normally reportable details of a case) is a derogation from the principle of open justice and an interference with the Article 10 rights of the public at large and, indeed of the parties.

vii) The court can only prevent reporting of a financial remedy hearing or judgment, or order that the identity of the parties be obscured by anonymisation, by making a specific order to that effect following an intensely focussed fact-specific Re S exercise of balancing the Art 6, 8 and 10 rights.

viii) The Judicial Proceedings (Regulation of Reports) Act 1926 does not apply to financial remedy proceedings.

The judgment is noteworthy for the following conclusion:

(1) The court does not share the preference of Mr Justice Holman to sit in open court

“[10] … I do not agree that it is necessary to hear all cases in open court in order to achieve full transparency. The hybrid arrangement ordained by Parliament when it endorsed FPR 27.10 and 27.11 achieves true transparency in two ways. First, the press and authorised bloggers act as the eyes and ears of the public in exactly the same way as they would if the case were heard in open court. Second, as explained above, there is no prohibition, in the absence of a specific individual order, on either party telling whosoever they please what has happened in court.

(2) A derogation from the rule of open justice can take two forms: a reporting restriction order or an anonymity order requiring the use of pseudonyms in any report of the proceedings:

“[25] … a derogation may be allowed only where an intensely focussed balancing exercise of the various rights protected by Articles 6, 8 and 10 leads to the conclusion that the privacy right should overreach the ancient principle. But it must be clearly understood that such a result will be exceptional and will require “strict justification”. This is clear from the statement of Dame Victoria Sharp PQBD in Griffiths v Tickle & Ors [2021] EWCA Civ 1882, at [35]:

” The open justice principle and the related rights under Articles 6 and 10 are all subject to exceptions, but these are narrow and circumscribed and their application in an individual case requires strict justification.”

[28] “…a decision in a financial remedy case leading to such an interference with a party’s rights cannot be done casually or automatically by rubric. It can only happen exceptionally as “a result of a Re S [2004] UKHL 47 balancing exercise.

(3) The distinction is again drawn between privacy and secrecy. The rule that the family court normally sits “in private” (FPR 27.10) “…does no more than to prescribe a mode of trial… it has nothing to do with secrecy as to the facts of the case” (at [33]);

(4) Where a judgment contains sensitive commercial information, that can be placed in a confidential annex but the parties should ordinarily still be named

[36] … I agree with Mr Farmer that if very rich businessmen are in court fighting at vast expense with their ex-spouses over millions, then the public has the right to know who they are and what they are fighting about. The judgment should therefore name names. Redactions can be made of commercially sensitive information, but only to the extent that they are strictly necessary. But the redactions should not ever obscure the way the court has decided the case.

(5) The court rejected the submissions that (i) greater transparency might allow some litigants to effectively blackmail the other party (at [38]), (ii) that the application of open justice might cause distress to the parties (at [42]), or (iii) that the reporting of a judgment will indirectly name children: (“[45]…every sensational story about adults is likely to cause upset to the children of those adults. The story does not need to be about a court case for the children of the protagonists to be impacted.”

• In conclusion, the court ruled against anonymisation and permitted the press to read the parties’ position statements:

[72] … The resistance to letting sunlight into the Family Court seems to be an almost ineradicable adherence to what I would describe as desert island syndrome, where the rules about open justice operating in the rest of the legal universe just do not apply because “we have always done it this way”. In my judgment the mantra “we have always done it this way” cannot act to create a mantle of inviolable secrecy over financial remedy proceedings which the law, as properly understood, does not otherwise recognise. I do acknowledge, however, that the tenacity of desert island syndrome is astonishing. 

So, where does this leave us now?

Firstly, Mr Justice Mostyn’s conclusions, powerfully expressed as they are, have not found obvious favour with other High Court judges, who have preferred to adopt a ‘wait and see’ approach. Most financial remedy judgments – i.e. heard by judges other than Mostyn J – continue to be anonymised (an exception being Cohen J’s decision in Treharne v Lamb [2022] EWFC 27).

Secondly, the opposing view has been articulated by Mr Justice Moor who commented in IR v OR [2022] EWFC 20,

[29] I believe this [the threat of publicity] refers to proposed changes to the rules on anonymity in financial remedy proceedings but they are not in place yet. I am clear that, until I am told I have to permit publication, litigants are entitled to their privacy in the absence of special circumstances, such as where they having already courted publicity for the proceedings which is not the case here. 

Thirdly, the profession awaits the conclusion of the Farquhar Report III, and in due course, the recommendations of the Rules Committee in terms of giving effect to Sir Andrew McFarlane’s proposals to open up the family court to greater scrutiny.

Ultimately, the above five judgments of Mr Justice Mostyn, all of which merit careful reading, amount to a radical review of the law, in pursuit of the objectives of further transparency. Will these reset the family court’s traditional approach and deliver a mortal blow to what remains of the family law silo? The jury is still out, as to whether (to close with another quotation from L.P. Hartley);

“With the opening of the door, and the installation of electric light in the cupboard, the skeletons [what remains of family law exceptionalism] had crumbled into dust.”

Alexander Chandler KC

18 November 2022

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Blog: familybrief.org  

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[1] That isn’t expected to be the name of the report. It’s a dad joke and a weak reference to the Star Trek films.