‘NOT TO BE LISTED BEFORE MR JUSTICE MOSTYN’ 

Mann v Mann: capital payment on variation

Judgment in Mann v Mann [2014] EWCA Civ 1674 in the Court of Appeal is dated 19 December 2014; but it is only in the last few days that it has had special press attention (eg in the Daily Telegraph : http://www.telegraph.co.uk/news/uknews/law-and-order/11381729/Hostile-divorce-judge-thrown-off-case.html ). So what was the case all about; and what was actually said to dismiss Mostyn J?

In the last paragraph of her judgment, McCur LJ says that, on its return to the Family Division, the case must be listed before another judge. Of Mostyn J’s attempts to ensure that Mr Mann paid money to his former wife (the most recent reported case on the subject was Mann v Mann [2014] EWHC 537 (Fam), [2014] 1 WLR 2807) the judge said:

[29] The stated perception of H during the first instance proceedings that Mostyn J has “made up his mind about [H’s] ability to pay” is objectively confirmed by the intemperate judicial dialogues recorded in the transcripts of the proceedings between February and June 2014. During that time Mostyn J’s frustration is palpable and clearly arises from his obvious belief that H is deliberately and maliciously avoiding his legal and moral responsibilities to W. These views are recently moderated in the hearing conducted on 19 September 2014 when Mostyn J appears to row back from previous indications and prepare W, a litigant in person, to the possibility that she is “clutching at straws” in certain major respects; … Objectively, I consider that Mostyn J is compromised in continuing to deal with this case and would direct that it should be listed before another judge of the division.

Mostyn J is off the case; but how – briefly – did it get to this point?

The following are the procedural steps by which it arrived in the Court of Appeal. (1) A consent order was made in April 1999 which provided for transfer of the former matrimonial home to W, for periodical payments for the children, for payment of £50,000 to W by two instalments and for periodical payments for W at £24,000 per annum. (2) H applied three years later for variation of the spousal periodical payments order; and alongside that – eventually – W applied for an upward variation. By order dated 8 June 2005 under Matrimonial Causes Act 1973 s 31(2) (see further below), Charles J ordered capitalisation of the periodical payments (£1,300,000) and repayment of some arrears. (3) H appealed against that order; and then agreed to compromise the appeal: he was to make various payments which, if not made, would cause the 8 June order to revive.

Beyond enforcement of the 8 June 2005 order what remained to be done: that is essentially what the Court of Appeal had to consider. To seek enforcement (4) W issued a statutory demand which H applied to set aside and to appeal further. That appeal was settled by a further agreement dated 2 November 2011. (5) W applied for a Family Procedure Rules 2010 r 33.3(2)(b) – enforcement-by-whatever-means – order; and it is that application which came on before Mostyn J on 26 February 2014.

Minton v Minton lives…

Before looking at how Mostyn J dealt with the 33.3(2) application it is worth reflecting on the outcome of Charles J’s order. MCA 1973 s 31, according to its title, deals with ‘variation, discharge etc’ of certain financial relief orders under MCA 1973: mostly periodical payments orders.[1] It was amended extensively by Matrimonial and Family Proceedings Act 1984 following the House of Lords clean break order decision in Minton v Minton [1979] AC 593, [1979] 2 WLR 31. Most of the 22 sub-clauses of s 31 repay study from time to time. Section 31(7) deals with factors the court must ‘consider’ when deciding whether to make an order under s 31 (s 31(7)(a): essentially it requires an up-to-date assessment of finances in accordance with s 25(2)) In particular the court must consider the clean break provisions in s 31(7B). Section 31(7B) sets out what may happen if the court decides that a periodical payments order will be varied and payable over a limited period (s 31(7A)(b)). The sub-paragraph says:

(7B) The court has power, in addition to any power it has apart from this subsection, to make supplemental provision consisting of any of –

(a)an order for the payment of a lump sum in favour of a party to the marriage;

(b)one or more property adjustment orders in favour of a party to the marriage;

(ba)one or more pension sharing orders;

(bb)a pension compensation sharing order;

(c)a direction that the party in whose favour the original order discharged or varied was made is not entitled to make any further application for –

(i)a periodical payments or secured periodical payments order, or

(ii)an extension of the period to which the original order is limited by any variation made by the court.

Clean break on variation

The effect of this, said McCur LJ, was that – save for enforcement – the court had no power to make further financial provision orders under MCA 1973 (par [19]) once the capitalisation order was made by Charles J. This is perhaps the important point of principle to derive from this case: that the Court of Appeal re-assert the breadth and meaning, on variation applications of the clean break provisions of MCA 1973:

[15] In Minton v Minton [1979] AC 593, 608 E Lord Scarman propounded that : ‘Once an application [for periodical payments] has been dealt with upon its merits, the court has no future jurisdiction save where there is a continuing order capable of variation or discharge under section 31 of the Act.’

[16] Ward LJ in G v G (Periodical Payments: Jurisdiction) [1997] 1 FLR 368, 378 made clear that: ‘Minton does not narrowly refer only to cases where the claim for periodical payments was dismissed. The speech ranges much wider…Lord Scarman therefore spoke of dismissal or discharge or termination as displacing the court’s power.’

Mrs Mann had sought to keep live the order of Charles J so that she could argue that discharge of an order (as distinct from its dismissal) enabled her still to make further applications. That attempt, in the absence of specific provision for further application in the discharge order, was ‘dealt a death blow’ (para [17]), as far as McCur LJ was concerned. A clean break under s 31 means that (subject to separate and parasitic questions of enforcement).

Judicial attempts to evade effects of a clean break order

Mostyn J attempts to get around these clean break provisions, and – perhaps most serious – to do so in the face of a Court of Appeal stay order, was the subject of the appeal:

[21] In my opinion, this attempt of Mostyn J to relieve W’s impecuniosity or otherwise head this appeal off at the pass is doomed to failure. The mechanism plainly described is not a legitimate response other than upon an application for variation of a lump sum directed to be payable by instalments, which is an order amenable to variation, or else in response to a judgment summons pursuant to FPR 2010 r 33.1(1) and (2). Neither of these situations appertains here.

The steps actually taken by Mostyn J are recounted at paras [7] and [9], but are quite literally only of academic interest. Any court’s ability to do what Mostyn J was trying to do (eg to vary the post 8 June agreement) were not ‘legitimate’. And as said at the beginning of this note, McCur J ‘directed’ that Mostyn J should not deal with the case further.

The consequences of all this are for another day: suffice to say now that the attempts of Mostyn J to take the law into his own hands in ways which are held not to be legitimate (as here0; or which cause parties to resolve appeals by agreement against him (Rochdale Metropolitan Borough Council v KW & Ors (Rev 1) [2014] EWCOP 45: Mostyn J not following the Supreme Court on their definition of ‘liberty’) must ultimately be unhelpful, save in the short-term where one or other party, or the judge himself, gets away with it (and see also https://dbfamilylaw.wordpress.com/2014/02/02/mostyn-j-condones-non-disclosure-imerman-documents-and-ul-v-bk/ (questionable ‘guidance’ issued by Mostyn J in respect of Imerman documents) and https://dbfamilylaw.wordpress.com/2015/02/06/bullying-in-the-family-courts/ (treatment of litigants in person)).

[1] MCA 1973 s 37(2); and including to vary MCA 1973 s 24A(1) orders for sale of property (see s 31(2)(f)), which, I confess, I hadn’t noticed till now

Advertisements

3 thoughts on “‘NOT TO BE LISTED BEFORE MR JUSTICE MOSTYN’ 

  1. Hi,
    Your article has lot of information regarding Mann’s legal proceedings, relevant MCA, 1973 sc’s and case citations. But, I still beg to differ from point of view on this case. My understand is as follows;
    Synopsis;
    1. April 1999 Order passed on consent terms for (a) provision for matrimonial home, (b) Payments for children, (c) Payment of 50,000/- pounds in 2 installments and (d) payment of 24,000/- pounds per annum.
    2. Three years later ‘H’ applies for variation and ‘W’ for upward variation.
    3. Order dated 8th June 2005, was made for capitalization of periodical payments and repayment of arrears.
    4. ‘H’ applies again against the order dated 8th June 2005 and again reaches compromise for various payments, which if he fails to obey, order dated June 8, 2005 would revive automatically.
    5. ‘W’ issues statutory demand, which ‘H’ applies to set aside and appeal further.
    6. Appeal was settled by further agreement dated November 2, 2011.
    7. ‘W’ applies for enforcement by what so ever means order, which came before Justice Mostyn.
    I don’t have any information as to the nature of compromises reached by ‘W’, subsequent to June 8, 2005 order, but still in my opinion there was no clean break. Wordings of Charles J order are crystal clear that in event of failure to enforce this order, June 8, 2005 order will automatically revive. Every time ‘H’ reaches a compromise in Appeals which are mostly filed by him and then decides to disobey them. Compromises subsequent to order dated June 8, 2005 are in continuation to this order and are not in isolation to the said order. I presume that ‘W’ is seeking enforcement of November 2, 2011 order and not June 8, 2005 order. Even if she seeks enforcement of June 8, 2005 order she is absolutely within her rights to seek the same as the truth and matter of fact is that ‘H’ has failed to obey the appeal which he has filed, and for which there is explicit provision in the order. In view of these wordings subsequent Appeals and compromises actually hold not much importance and in my opinion ‘W’ is within her right the seeks June 8, 2005 order enforcement. There is continuation of appeals and subsequent compromises in this execution (enforcement) procedure which should be carried out in accordance to the rules stated in Code of Civil Rules (Code of Civil Procedure, 1908 as amended in India).
    In India in such cases we can evoke section 151 of Code of Civil Procedure, 1908 and seek con-donation of any technical lacuna’s in execution (enforcement) proceedings, and the court is absolutely within its rights to condone such errors which can be more attributed to wrong legal advice ( which is quite apparent in ‘W’ case) or delay in filing such enforcement proceedings. From the acts of ‘H’ it is amply clear that he never really intended to pay her money and so kept on delaying payment by filing unwarranted appeals and reaching compromises which he never intended to reach, in all probability his Attorney’s knew they could evoke Clear break clause at some point in time of this enforcement proceedings. The point is not whether ‘H’ is bound to pay after clear break clause applies, the point is whether we should allow justice to be defeated just because ‘H’ can claim some clause by running away from his responsibilities. Should ‘W’ be allowed to run from pillar to post and then finally be told lady there was a technical glitch in your legal proceedings and you were probably not advised properly by your Attorney so now you don’t get any money.
    In the interest of justice and equity, it is amply clear from the facts of this case that the balance of justice and equity is in favor of ‘W’ and Justice M can evoke his inherent powers and pass any order to ensure that the ends of justice are met and justice is granted. In my view there is no clear break in and of the orders after June 8, 2005.

    • Many thanks indeed for your reply. In reality, I think, you and I disagree very little, save perhaps in certain semantic details:

      (1) Justice – equity – To my mind, justice and equity (or fairness) are mostly similar; though (as in Mann) they may be differ slightly. The important thing is that judges never alter them: judges may not bend the law to interfere with justice (or to impose their idea of ‘justice’, which Mostyn J does a smidgen too often, I fear).

      (2) Inherent jurisdiction – High Court judges have an inherent jurisdiction to act fairly where neither the common law nor statute have made prior provision: injunctions are an obvious example (though statutes have codified the injunction procedure (eg Senior Courts Act 1981 s 37), they remain in essence an inherent jurisdiction). Judges below the High Court can only use inherent jurisdiction powers where the High Court has the power. (Mostyn J misunderstands this point a little also in my opinion (see eg https://dbfamilylaw.wordpress.com/2015/01/18/inherent-injunction-jurisdiction-of-high-court/ ).)

      (3) Enforcement – so far as I know the court has no inherent power to enforce: it is all statutory. A clean break order which is unpaid is very much open for enforcement.

      I think you may be misunderstanding the ‘clean break’ point. In Mann one final – ‘clean break’ – order was made on 8 June 2005, as the Court of Appeal found/confirmed; and it was that order which Mostyn J was empowered to enforce in any way permitted (ie agreements and other dealings subsequent to the 8 June order fell away, and were irrelevant).

      The problem was that Mostyn J was trying to re-open that which was at and end (in terms of being able to vary or re-open or in any way to deal with what had happened after 8 June 2005). He was trying to make further financial provision where he had no power to do so.

      The court’s job to invent fresh financial provision for Mrs Mann was at an end. The issue of enforcement – how what the court had already ordered should be paid – was very much alive. That was the issue for the High Court to deal with.

  2. Pingback: MOSTYN J: ‘ANTITHETIC TO THE RULE OF LAW’? | dbfamilylaw

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s