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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Q -v- R (Matrimonial) [2015] JRC 168A (17 August 2015) URL: http://www.bailii.org/je/cases/UR/2015/2015_168A.html Cite as: [2015] JRC 168A |
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Matrimonial - appeal against decision of the Registrar dated 25th November 2014.
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Before : |
T. J. Le Cocq, Esq., Deputy Bailiff, and Jurats Nicolle and Ramsden |
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Between |
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Appellant |
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And |
R |
Respondent |
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Advocate J. F. Orchard for the Appellant.
Advocate G. D. Emmanuel for the Respondent.
judgment
the deputy bailiff:
1. This is an appeal by the appellant ("the husband") against an order made by the Registrar on 25th November, 2014, ("the order") whereby she ordered the husband to make certain payments to the respondent ("the wife") by way of interim periodical payments.
2. The Registrar, in essence, ordered:-
(i) That in the interim until further order the husband shall pay to the wife £2,500 per month global maintenance from the 1st December, 2014;
(ii) That the husband shall pay a further sum of £2,000 per month interim maintenance in respect of the wife's rent;
(iii) That the respondent shall settle their child's outstanding school fees and pay them going forward;
(iv) That the matter of costs be left over.
3. In his notice of appeal filed on the 30th January, 2015, the husband appeals against the order on the following grounds:-
(i) There is a procedural irregularity in that the Registrar failed to properly apply the case law guidance on interim maintenance applications to this matter particularly where the respondent was acting as a litigant in person;
(ii) In exercising her discretion the Registrar has taken into account irrelevant matters, ignored relevant matters and arrived at a conclusion that is wrong;
(iii) Following the filing of the respondent's notice of appeal against the order of the Family Registrar dated 25th November, 2014, further evidence has come to light which suggests that the Family Registrar was misled by the evidence which the petitioner provided at the interim maintenance hearing on the 25th November, 2014, and that in light of this new evidence allowing the order of the 25th November, 2014, to stand unamended might result in a miscarriage of justice.
4. On the 10th February, 2015, the husband applied to the Registrar to stay the order. For the reasons set out in her written reasons of the same date, the Registrar stayed paragraphs 1 and 2 of the order pending this appeal ("the stay"). The husband had not sought to stay that part of the order relating to the payment of school fees.
5. The test on appeal in matters such as this was laid down in Downes v Marshall [2010] JLR 265 where Bailhache, Commissioner said, at paragraph 12:-
6. When the Registrar considered the application for the stay she had before her evidence that was not available to her when she made the order. Specifically, she had an affidavit from the husband dated the 13th January, 2015, and an affidavit from the wife dated the 16th January, 2015, ("the new affidavits"). We were addressed on whether those affidavits and the information contained in them, should be admitted before us as new evidence. We were referred to the case of Mayo v Cantrade [1998] JLR 173 on the principles applicable to the admissibility of fresh evidence in which, at page 185, the Court of Appeal applied the well-known test in Ladd v Marshall [1954] 1 WLR 1489 that for fresh evidence to be admitted on appeal it should have been unobtainable with reasonable diligence for the original hearing; it would probably have an influence but not necessarily a decisive one on the result of the case, and it should be credible. Advocate Orchard for the husband submitted that the new affidavits of the husband and wife on the issue of a stay should be admitted by us, and Advocate Emmanuel for the wife agreed that her affidavit should be admitted but makes the observation that the husband's affidavit does not really deal with matters that were new and could not have been before the Registrar when the order was made. It seems to us that the new affidavits refer to matters, some of which were new in the sense that they could not have been made available to the Registrar by the party now seeking to rely on them, were potentially important and were credible. Accordingly we admit both new affidavits and proceed to consider the matter in the light of the information that was both before the Registrar at the time of order and, more recently, at the time of the application for the stay.
7. The first ground of appeal is that the Registrar failed properly to apply the case law guidance on interim maintenance applications, "particularly where the respondent was acting as a litigant in person". We assume by these words that the husband complains that the correct principles were not in fact applied by the Registrar and further were not articulated by her for his benefit.
8. Advocate Orchard, for the husband, submits that there is no evidence that the Registrar applied the appropriate tests in the law. No detailed mention is made of the law in her reasons and this, he submitted, was particularly unfair because the husband, as a litigant in person, was not able to address his mind to the appropriate principles and he suffered as a result in his ability to cross-examine the wife or to make the correct submissions. In support of his argument Advocate Orchard placed before us the case of Organic Kids Limited and Another v The Minister for Education Sport and Culture [2015] JRC 067 where, at the last paragraph of the judgment (under a post-script) Birt, Commissioner said this:-
9. Advocate Orchard relies on the last four lines of that paragraph in support of his submission that the wife's lawyer was under an obligation to set out the legal position clearly and to make express reference to it. We do not think that the paragraph quoted above provides Advocate Orchard with any support for his argument. Clearly what the Court was referring to in that case was circumstances in which the correct law was in issue and the obligation on counsel to put forward authority which is contrary to his legal submission if he is aware of it.
10. In this case, however, Advocate Emmanuel submits that it was not necessary for counsel for the wife, nor indeed for the Registrar, to make express reference to the case law or to the principles derived from the case law as they were not dealing with any legal point that was in dispute but rather were dealing with the straightforward application of well-known legal principles.
11. In her reasons for the order the Registrar says this at paragraphs 14 and 15 under the heading "The Law":-
12. Advocate Orchard submits that the reference to "robust assumptions" can only be a reference to the case of TL v ML [2006] 1 FLR as applied in the Jersey case of K v P [2009] JRC 170A in which the Court, in connection with an application for interim maintenance, said this:-
13. There is no dispute that these principles are the applicable principles of law and paragraph 15 of the Registrar's reasons point, in our view, to her consideration of and application of those principles. We do not, therefore, take the view that the Registrar misdirected herself on the law in the sense of applying the incorrect principles.
14. As mentioned above it is further argued by the husband that even if the principles had been properly applied they should have been articulated either by counsel for the wife or by the Registrar so that the husband, a litigant in person, would have been in a position to address himself to those principles.
15. We were informed, and it was not contradicted by the husband's counsel, that he became a litigant in person one working day before the hearing which gave rise to the order. He had until that time had the benefit of legal advice and, of course, he now does so again. We were not given reasons why the husband became a litigant in person or indeed the reasons for the change of his legal representation.
16. In our view it should have been clear to the husband in this case, given that the entire application was about the level of interim maintenance and extensive reference was made to the affidavits filed by the parties, that the key issues were his needs and ability to pay and his wife's needs and ability to pay. It may, perhaps, have been of assistance had he been expressly invited by the Registrar during the course of his cross-examination of the wife, to challenge any points that he did not accept convening the wife's financial needs and means but in our view the need to address those points should have been clear to him by reason of the nature of the application that was being dealt with.
17. Whereas a litigant in person might hope to receive some procedural assistance over and above that which might be available to persons who are legally represented, a litigant should not expect the legal advisers for the opposing party or indeed the presiding judge to, in the former case, address the Court, or in the latter case expatiate on the applicable legal principles in a way that would not happen were both sides legally represented. In our view it is the obligation of the litigant in person, particularly one who has immediately before had the benefit of legal advice or where the principles are straightforward, to inform him or herself of the appropriate principles so that he or she will be in a position to put forward a case.
18. Accordingly we reject the first ground of appeal.
19. The second ground of appeal is that the Registrar took into account irrelevant matters, ignored relevant matters and arrived at a conclusion that was wrong.
20. In advancing arguments under the second ground of appeal the husband made a number of criticisms of the way that the Registrar had assessed the evidence before her. We keep well in mind the approach articulated in Downes v Marshall referred to above and we would be slow to interfere with any decision based on the Registrar's assessment of the evidence.
21. It is argued, however, that the award of global maintenance in the sum of £2,500 could not be justified on any analysis. The wife's budget of needs submitted to the Court (after deduction for school fees and rent which were covered by other parts of the order) was £3,070 per month. It was, however, accepted that the wife receives income from employment in the sum of £1,090, which would leave a shortfall of £1,980 per month. In effect, therefore, in awarding £2,500 per month (in addition to covering the school fees and the rental in other parts of the order) the Registrar was awarding the wife a figure that apparently exceeded her own stated requirements set out in an affidavit that was directed, not to her interim requirements, but to her final maintenance requirements.
22. There were also other figures in the wife's claim for interim maintenance which it is difficult to see should have passed unscrutinised. For example the wife claimed £360 per month in petrol for running her car, a mini, and £1,200 per month for food for herself and the child of the parties. We do not comment on these figures other than to say that they are figures, possibly among others, that could have been tested.
23. We have sympathy with the position of the Registrar as, in general, one would have expected a claimant's figures, if they were not accepted, to have been tested in cross-examination by the paying party. The husband did not test those figures. It is not, in our view, the job of the Registrar to do what the husband should have done. However, it is, in our view, incumbent on a judge to remind a litigant in person of the need to challenge figures that he does not accept.
24. A further issue was raised in support of the ground that the Registrar took irrelevant matters into account in her reference to a prior dégrèvment. In doubting the accuracy of the husband's evidence about the use to where his earnings of £256,000 in 2013 had been put the Registrar, at paragraph 16 of her reasons, said:-
25. In our view the reference to a 'dégrèvement' by the Registrar was inappropriate. The Registrar appeared to take the view, and include it as part of her reasons, that because the husband had previously gone through a dégrèvement, an act of bankruptcy, then that made it more likely that the husband would now be saving money and therefore less likely that he had no money put by. This does not appear to us to be a valid conclusion. At best the fact that there had been a dégrèvement is neutral. It is evidence only that, at that time, the finances of the husband were such that they were forced to go through a form of bankruptcy. That does not, to us, suggest that thereafter the husband or wife are likely to be more cautious or that the husband would have amassed anything by way of savings. In our view, that fact, absent further evidence, does not support the conclusion.
26. In the circumstances, whilst we do not comment on every argument put before us by the husband, we are left concerned that an unfairness has resulted to the husband by the fact that the order made appears to be in excess of the wife's actual claims in that no allowance was apparently made for her actual income.
27. Accordingly we would on this basis allow the Appeal.
28. The final ground of appeal relates to the fact that the Registrar in the light of the further evidence before the Registrar when she considered the stay, was misled by the wife's evidence. As we have stated above, we have admitted that further evidence and it is accordingly before us now.
29. A number of allegations and counter-allegations were made before us relating to the credibility of the information provided by one of the parties or the other, and the inadequate disclosure made by one party or the other. For the purposes of what we have to decide today, we did not find those allegations of assistance.
30. What is clear is that the Registrar made her order on the basis of the wife's supposed needs as set out in the wife's affidavit. That affidavit did not, at the time of the order, present a fully accurate picture.
31. At the time of the argument before the Registrar which gave rise to the order, rather than still looking for property to rent at a cost of between of £1,700 and £2,500 (as she had stated and as a result of which the order quite understandably contained provision for the wife's rental at £2,000 per month) the wife had in fact put down a deposit of £1,400 against a flat to rent and now is occupying that flat at a rental of £1,400 per month. Although the lease expires at the end of November 2015, there is an option to renew for a further twelve month period subject to a rental increase in accordance with the retail price index. Notwithstanding this, there is some uncertainty whether or not the wife can remain there after November.
32. The wife explains in her new affidavit that she did not inform the Registrar of these facts because the property had not at that time been secured. Submissions were made to us by Advocate Emmanuel giving a further reason, namely that she had been intimidated by the husband and did not wish to reveal information about her living arrangements. For the husband, it is pointed out that the Registrar had been in effect misled on the range of properties for rent available to the wife and no mention was ever made of the possibility of renting accommodation at the sum of £1,400 per month and, so it is submitted, there was no evidence of intimidation. It also appears that the wife had a sum of £4,000 in a bank account available from funds to secure accommodation and this fact too was not known to the Registrar although this latter point would perhaps have made little difference as it was a loan.
33. In addition to the issue relating to rental, at the time that the wife made the application that gave rise to the order she had also applied for income support. In fact it is now understood that her income support amounts to some £330.82 per week and this, coupled with her income from employment, gives her income of £2,520 per month. This is not reflected it seems to us in the order for global maintenance. It is clear that the correct financial provision needs to be understood and explored and consideration given to the extent to which the wife's income should be reflected in the figure for maintenance payable.
34. Advocate Emmanuel, for the wife, explains to us that at the time that the order was made whereas the wife had applied for income support it had been received in a nominal amount only and she had no knowledge of the amount that she was ultimately, as from December 2014, to receive. That may be so but the relevance and effect of this payment made to be understood.
35. We find these matters to be material and also to undermine the factual basis upon which the order was made. It seems to us that even were there no other concerns about the order, these facts alone would justify reconsideration by the Registrar.
36. Criticism was also made of the fact that the Registrar did not take into account sufficiently or at all the husband's evidence relating to his own financial means and circumstances. We do not need to determine that point as we are satisfied that the entire question of both interim global maintenance and maintenance to cover rent should be remitted to the Registrar for assessment afresh. We are conscious that the Registrar, as the husband is now legally represented, will have the benefit not only, insofar as is appropriate, of having the evidence properly deployed and tested but also the benefit of submissions tailored to the legal principles that apply.
37. Accordingly we allow the appeal and remit the matter back to the Registrar to be reconsidered in the light of the correct financial position of the parties and the needs of the wife for interim maintenance.
38. We accordingly maintain the stay of paragraphs 1 and 2 of the order until the Registrar hears again the application for interim maintenance. We direct both the husband and the wife to cooperate in fixing as early a date for that purpose as is practical.
39. As a number of allegations and counter-allegations have been made concerning the inadequacy of disclosure and otherwise matters of behaviour we leave over the costs of this application to be determined by the Court dealing with the final hearing.
