I’ve been eagerly awaiting this judgment. This is part 2 of the case involving the Queen’s Proctor and an alleged systematic fraudulent obtaining of 180 divorces (some decree nisis, some decree absolutes)
I wrote about part one here http://suesspiciousminds.com/2014/05/09/the-pages-of-the-most-extravagant-french-novel/
That judgment was all about whether the Press could report what had been going on, because there are historic statutes aimed at preserving the decency of Victorian breakfast tables stopping the Press reporting the details of divorce cases (they can report the financial settlements, but not the divorce itself).
The President did one of his very clever conjuring tricks to resolve that and allow the case to be reported.
Part 2 is about whether there had been this systematic fraud. According to the case, the allegation is that many divorce petitions were lodged, all using the same address in Maidenhead for the petitioner, as a means of allowing the divorce to be obtained in England, when the petitioners really lived in Italy. This was so that the divorces could be progressed more quickly.
(Yes, for inexplicable reasons, our divorce system is more efficient than the Italian one. I shudder to think about that)
In 179 of the cases (I shall deal separately with the other case, La Marca v Prestieri BY12D00274, where an address in Epsom was given as the petitioner’s residence) the address given for the petitioner or the respondent, as the case may be, was identical: Flat 201, 5 High Street, Maidenhead, SL6 1JN. I shall refer to this as “Flat 201”. The address given for the other party – and these were different addresses – was in each case in Italy, except in one case1 where an address in Germany was given for the respondent. In the majority of the 179 cases in which Flat 201 was given as the address it was said to be the petitioner’s address; in a small minority of cases – in 37 of the cases I think – Flat 201 was said to be the respondent’s address.
I suppose that it is theoretically possible that there really have been 179 different women living in this one flat in Maidenhead, all of whom coincidentally happened to be getting divorced at around the same time. It doesn’t seem all that likely though.
If those decrees were obtained by fraudulent means, then they would all be set aside
Moynihan v Moynihan (No 2)  1 FLR 59.
the well-known words of Denning LJ in Lazarus Estates Ltd v Beasley  1 QB 702, 712:
“No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved, it vitiates judgments, contracts and all transactions whatsoever … ”
“A decree absolute is generally considered to be good against all the world. It is an order ‘in rem’. However, if it has been obtained by fraud, there is a fundamental defect. In this case, I have no doubt that Lord Moynihan’s divorce petition was deliberately framed in a way which was calculated to deceive the court. All the subsequent representations and submissions which were made to the court were vitiated by fraud. He wished to obtain a divorce. He wished to do so even if his wife objected to it, as I believe she did or would have objected, if only on financial grounds. He quite deliberately set out to deceive the court. His affidavit verifying the petition was false, and in swearing it he committed perjury. He perverted the course of justice and succeeded in obtaining a decree. It is a gross case. The inevitable consequences to all are serious. I have no doubt that I should set aside and declare null and void the decree absolute and the decree nisi and dismiss the petition.”
Moynihan v Moynihan is a pretty saucy case in any event.
24. It was, like this, an application by the Queen’s Proctor for the setting aside of a decree absolute of divorce obtained, so it was said, by fraud on the part of the petitioner, the by then deceased Lord Moynihan. The fraud as found by Sir Stephen had various strands: The particulars set out in the petition were false in a number of material respects; the affidavit in support of the petition, in which the petitioner swore that everything stated in his petition was true, was perjured; the statement of the proposed arrangements for the child of the family, filed with the petition, was wholly misleading; the petitioner subsequently falsely told the court that the child had died when he knew full well that he was still alive; the acknowledgement of service purportedly signed by the respondent wife (and in which she purportedly admitted the adultery alleged in the petition) was false.
Specifically, the petitioner falsely asserted an English domicile when he was in fact domiciled in the Philippines. His case on this point was supported by perjured evidence, what Sir Stephen called “deliberate lies”:
“In order to deceive the court into accepting jurisdiction in his divorce suit, he told quite deliberate lies. He persisted in and added to the lies when the registrar at Tunbridge Wells County Court required confirmation and further elucidation of the domicile position. Those lies enabled the court to accept jurisdiction and to proceed to deal with the divorce suit.”
25. Sir Stephen continued:
“However, this was not his only deceit of the court. I am satisfied on the balance of probability that neither the respondent wife nor the co-respondent was served with the petition. Lord Moynihan arranged for false acknowledgements of service to be returned to the court, and yet a further deception related to the child of the family”.
His conclusion was damning:
“I find that there was a clear, deliberate and sustained deception of the court by Lord Moynihan … Lord Moynihan unfortunately was a man accomplished in fraud and indeed in forgery.”
You don’t that often come across a case where a Judge gives a peer of the realm that sort of kicking (it is, of course, rather easier to do so when the peer is dead)
The President sums up the law as it relates to fraud, perjury and divorce petitions as follows :-
29. So far as material for present purposes I can summarise my conclusions on the law as follows:
i) perjury without more does not suffice to make a decree absolute void on the ground of fraud;
ii) perjury which goes only to jurisdiction to grant a decree and not to jurisdiction to entertain the petition, likewise does not without more suffice to make a decree absolute void on the ground of fraud;
iii) a decree, whether nisi or absolute, will be void on the ground of fraud if the court has been materially deceived, by perjury, forgery or otherwise, into accepting that it has jurisdiction to entertain the petition;
iv) a decree, whether nisi or absolute, may, depending on the circumstances, be void on the ground of fraud if there has been serious procedural irregularity, for example, if the petitioner has concealed the proceedings from the respondent.
As will become apparent, it is the third of these propositions which is determinative in this case.
The President then gets stuck into the facts – as outlined, the same address appears in 179 of the petitions, giving jurisdiction in England.
Except in one case, which I shall deal with separately, Rapisarda v Colladon AL11D00099, issued in the Altrincham County Court on 16 February 2011, there is no reason to believe that either the petitioner or the respondent, as the case may be, whose address was stated to be Flat 201 had ever resided in England or Wales.
Be that as it may, it is certain that none of them can ever have resided at Flat 201. On 28 August 2012, police officers of the Thames Valley Police executed a search warrant in relation to Flat 201. The evidence of one of the officers who executed the search warrant, Detective Sergeant Steven Witts of Thames Valley Police, whose witness statement is dated 4 March 2014, confirms that Flat 201 was not a residential property or, indeed, a property capable of occupation. It was in fact a mail box, mail box 201, one of a number of mail boxes located in commercial premises. As the investigating officer in charge of the police investigation, Detective Sergeant Jonathan Groenen, mordantly commented in his witness statement dated 29 October 2013, “It is not possible for 179 applicants or respondents to reside at this address.” Indeed, given the dimensions of the mail box it is clear that not even a single individual, however small, could possibly reside in it.
In short, it is clear beyond any sensible argument that in each of these 179 cases the assertion that the English court had jurisdiction to entertain the petition was founded on a lie, the lie that either the petitioner or, in some cases the respondent, resided at Flat 201. To put it plainly, the English court was deceived; the English court was induced by fraud to accept that it had jurisdiction to entertain the petition.
(I cannot express how much I love the “given the dimensions of the mail box it is clear that not even a single individual, however small, could possibly reside in it” line. )
Now, if you know about divorces, you will know that an affidavit has to be sworn at some point. The affidavits in many of these cases were ostensibly sworn before a solicitor in Reading. So, were these Italian petitioners flying over to Reading to lie when swearing their affidavit? Were the solicitors in on it?
The affidavit purported to have been sworn by the petitioner on 27 April 2011 before a solicitor. Opposite the words “Sworn at” there appear, seemingly affixed by a rubber stamp, what purport to be the name and the postal and DX addresses of a firm of solicitors in Reading. The name and addresses are those of a firm of solicitors that does indeed exist. I should add that similar affidavits appear in the court files of most of the other cases before me.
42.There are, I suppose, a number of possibilities: that the affidavit was in fact sworn as it purports to have been (unlikely, given that this affidavit resembles many others in the cases I am concerned with and that it is fanciful to imagine that large numbers of Italians, who there is no reason to believe lived in this country, should have made the journey to Reading); that someone in the solicitors’ office was colluding in the conspiracy; that the solicitors were the innocent victims of impersonation; or that the solicitors were entirely innocent, had nothing whatever to do with the affidavit and are themselves yet another victim of this fraudulent conspiracy. I am entirely satisfied that this last alternative is in fact the truth. Interestingly, and revealingly, Reading County Court was not one of the many county courts used by the architects of this fraud.
43.In the course of their investigations, police officers from Thames Valley Police visited the solicitors’ offices in Reading on two occasions, Detective Sergeant Witts in August 2012 and Detective Sergeant Groenen in March 2014. The police received every possible assistance from the firm’s employees, including from the senior managing partner. Detective Sergeant Groenen in a further witness statement dated 3 April 2014 is very clear. He is, he says, “satisfied” that the various persons named in these affidavits“were not employees of [the firm] and had no association with the real firm. In my view, the firm’s name has been used falsely by those responsible for drafting the affidavits, without the knowledge or permission of anyone at the firm.”
I suppose if you have no scruples at all, that’s not that hard to do. You pluck a solicitors firm out of the air, and swear affidavits pretending to be a solicitor from that firm.
Do we get any information about where and how this fraud was being orchestrated?
44. In one of the cases, Rapisarda v Colladon AL11D00099, there is direct evidence of how the relevant affidavit came into existence. This is one of the cases in which it was said that it was the respondent who resided at Flat 201. The petitioner, Agata Rapisarda, was said to reside in Italy. For reasons which will become apparent in due course, I will need to go into this particular case in more detail. For the moment I need refer only to the petitioner’s affidavit, again in Form M7 and filed in accordance with rule 2.24(3), purportedly sworn on 19 April 2011 before the same person who, eight days later, purportedly witnessed the petitioner’s signature in Gargiulo v Armani AF11D00099. I have evidence from the petitioner, which I have no hesitation in accepting. She made a witness statement dated 25 October 2013 and gave oral evidence before me on 9 April 2014. Until she came to London in April 2014 to give evidence, she had never been in this country. She has never been to Reading. She accepts that it is her signature on the affidavit but says that she was in Italy, in Verona, when she signed it. The solicitor’s details were not there when she signed the document. She thought that most probably the other parts had also not been completed. Whatever the reality in relation to that last point, it is quite clear from her evidence, which I accept, that this purported affidavit was never sworn by the petitioner as it purports to have been sworn.
45.In fact and in law, the purported affidavit in Rapisarda v Colladon AL11D00099 was no such thing; it was a forgery, deployed by the fraudsters to deceive the court. If it was an affidavit, then, like the purported affidavit in Gargiulo v Armani AF11D00099, it reeked of perjury. Either way the court was being deceived, the administration of justice was being perverted.
So, who is behind all of this? Who is “The Napoleon of Criminal Divorce”?
The moving spirit of the operation in Italy was someone calling herself Dr Frederica Russo (email email@example.com; fax 06-233237081 or 06-233237080). I have no idea whether that is her real name. The emails in both the Rapisarda file and the Rodrigues file pass from and to her. Some of the parties mention having spoken to her on the telephone (+39 347 8535829, 00448445853857, 3408903115), but no-one records ever having met her. The total cost of the service she was providing seems to have varied: €4,050 in Meola v Danesi EX11D00570, €3,750 in Rapisarda v Colladon AL11D00099, and €4,700 in Diaferio v Rodrigues TS10D00587. Payment was made by instalments to an account in the name of Anita Colucci. Some of the parties believe this to be another name for Dr Russo.
There is mention of the involvement of an entity called Nolton Company Service and of a company, Russo Legal Service Limited (of which Dr Russo “portrays herself as the director”) registered at Companies House under number 08519986, both located at Office 5, 105 London Street, Reading RG1 4QD, which I shall refer to as “Office 5”. This is in fact another mailbox. One of the parties says, “Mrs Russo cooperates in these divorce proceedings with Mr Francesco Galatà, via Carduzzi, 1 Sarzana (SP), Italy, with his office in via Camponesto 3 Sarzana (SP) Italy.” Another refers to “Russo and her partner Francesco Galata.”
The investigations by Thames Valley Police revealed that the Flat 201 mailbox was owned by a company which also owned the Office 5 mailbox. Both were rented by Mr Galata. The police investigation also established that Nolton Consultants Limited, a company registered at Companies House under number 3244763, appeared to have some involvement with the Flat 201 mailbox, though it was not clear to the police how Nolton was connected with Mr Galata. On 29 October 2012, Detective Sergeant Witts spoke to Mr Galata on the telephone. Mr Galata, who said he was in Italy, stated that he charges £120 per hour “to assist lawyers in Italy with facilitating divorces across the whole of Europe.” The officer added, “He became vague when regarding how his post box in Maidenhead was linked to the divorce petitioners”.
(I bet he bloody did)
I really want to email Dr Frederico Russo, but I am trying my best to resist that temptation.
In the words of Jimmy Cricket, “come here, there’s more”
In some cases letters sent by the court to the mailbox at Flat 201 in 2013 addressed to one of the parties were returned under cover of a letter from Nolton Consultants Company Services, giving an address at 65 Via XX Settembre, 19038 Sarzana (SP), Italy (telephone +39320 233 3476). So far as material for present purposes these letters said:
“We are the registered owners of the address “Flat 201, 5 High Street, Maidenhead SL6 1JN”; any mail sent there is forwarded
to Italy fortnightly where our office staff then processes and forwards all the items received to the due addressee,
Our business includes receiving, processing and forwarding parcels and correspondence on behalf of our clients.
… We are hereby returning your letter for the following reason:
The addressee is no longer our client”
The Rapisarda file contains an email from the petitioner to Dr Russo dated 23 February 2011 saying (I quote the translation) “I received what I enclose, what should I do?” Cross-referring to the court file this would seem to be a reference to the notice of issue of the petition dated 16 February 2011 sent to the petitioner by Altrincham County Court and notifying her that a copy of the petition had been posted to the respondent on 16 February 2011. On 28 February 2011 Dr Russo sent the petitioner an email, seemingly referring to the acknowledgment of service to be signed by the respondent, seeking her assistance in obtaining his signature, and saying “only to be signed, not to be completed”. (The court file shows that the completed acknowledgment of service was received on 14 March 2011.) I heard evidence about this from the respondent (see further below). He accepted that it is his signature on the acknowledgement of service but said that the form was otherwise blank when he signed it. I shall return below to consider this in more detail. For the moment two obvious questions arise: Why was Dr Russo seeking the assistance of the petitioner, resident in Italy, in obtaining the signature of the respondent, then supposedly living in England at an address known to Dr Russo? And what is the significance of the instruction to “sign” but not “complete” and, indeed, of the fact that the respondent signed a blank form? In relation to the latter point, an email from the petitioner to Dr Russo dated 7 April 2011 says “I received the document which is attached. Please let me know what to do.” Examination of the court file would suggest that this refers to the court’s notice dated 24 March 2011 of its receipt of the respondent’s acknowledgement of service, enclosing with it a form of request for directions for trial (special procedure) and a form of the appropriate affidavit to be sworn by the petitioner. Dr Russo’s response to the petitioner the same day was “Do not reply because … to avoid errors we fill forms”.
55.I interpolate that similar instructions are referred to in information supplied by parties in other cases: “just to sign the documents already filled in … that would be sent to us … without adding anything besides the signatures”; “JUST sign where indicated, because all that was necessary to indicate in those documentations would be added later by the Doctor and/or her staff”; “She told us that we wouldn’t have had to do anything, just sign the papers where she indicated in a facsimile.”
56.Turning to the Rodrigues file, it includes one particularly interesting exchange. Dr Russo’s modus operandi was to send her clients a document setting out the steps in the process and a questionnaire seeking relevant information. The information was then embodied in a document referred to as “La base del divorzio” sent to the parties by email for their approval. In this case it was emailed to the respondent from firstname.lastname@example.org on 7 September 2010, with a covering message from Dr Russo. It gave the petitioner’s address as “England”, said that the parties had lived together at an address in Italy until 6 October 2008, and that (I quote the translation) “from 7-10-2008 [the petitioner] has had an address in England.” On 8 September 2010 the respondent emailed Dr Russo, saying “You (I don’t know who) have confused dates and addresses … The … corrections are given below.” He set out the petitioner’s address as being in Ravenna in Italy and said that the parties had lived together at that address from the date of the marriage, 28 September 2008, until 30 August 2010. Dr Frederica Russo replied by email the same day:
“If we wish to obtain the divorce judgment as “by consent as the spouses no longer live together” I must write as follows (devo scrivere in questo modo) … from 7-10-2008 [the petitioner] has had an address in England.”
57.The respondent’s comment on this, in a statement dated 5 December 2013, really says it all:
“I knew this divorce process was not honest from the day I was sent a draft from the mediator hired by my ex-wife” – it is clear from the context he is here referring to Dr Russo – … “My concern was not bogus residency, as I did think she would actually move to England to start the process, but I worried about the fact that we had not been living apart for two years immediately before applying, as stated on the draft and apparently required by law.”
58.I add one final detail. The petitioner in another case who was alleged to have resided at Flat 201, says “Doctor Russo has not … indicated that it was necessary to be RESIDENT in England or in Wales … The Doctor has never given any hint of the need of going personally to England”.
I am LOVING this case, and having found our villain, we are about to (perhaps for the first time in reported case law history) identify as our hero a beleaguered member of Court staff. And I am delighted that the President names her – it is Julie Farrah of Burnley County Court. Well done Julie. (and hurrah for DJ Conway too, for sending staff out to visit Flat 201 and see that it was a mailbox uninhabited by Italian distressed wives)
The problem was first identified in late February 2012 by an eagle-eyed member of the court staff at Burnley County Court, Julie Farrah, who spotted that in two files, both involving Italian parties, the address was the same and that it was in Maidenhead (which is in the south of England, whereas Burnley is in the north-west). She brought it to the attention of District Judge Conway, who contacted a colleague in the Slough County Court (located near to Maidenhead). He arranged for a member of the court staff there to visit Flat 201, which revealed that there was no residential accommodation there. When this was reported back to District Judge Conway on 1 March 2012 she immediately notified both her local Designated Family Judge and the Queen’s Proctor. Later the same day her concerns were escalated to the relevant Family Division Liaison Judge and by him to the office of the President of the Family Division, at that time Sir Nicholas Wall. On 22 March 2012 the President’s office circulated a message asking courts to stay all such cases, without reference to the parties, pending investigations by the Queen’s Proctor and the police
This is all leading inexorably to these decrees being set aside
What does the evidence establish? I have set it all out, and need not repeat the details. The materials before me, when read in conjunction with the relevant court files, establish, and I find as a fact, that:
i) In each of these cases the assertion that the English court had jurisdiction to entertain the petition was founded on a lie, the lie that either the petitioner or, in some cases the respondent, resided at Flat 201. The English court was deceived; it was induced by fraud to accept that it had jurisdiction to entertain the petition.
ii) In the Class 2 and Class 3 cases the application to proceed in accordance with the special procedure was supported by the filing of what purported to be an affidavit but was, in fact and in law, a forgery, deployed by the fraudsters to deceive the court. (The parties are here impaled on the horns of a dilemma: if it was an affidavit, then it reeked of perjury; if it was not in truth an affidavit it was a forgery. Either way the court was being deceived, the administration of justice was being perverted, whether by perjury or by forgery.)
It is quite clear that in each of these cases the English court was being deceived. Importantly, that deception went not just to what I have called the court’s jurisdiction to grant a decree; more fundamentally it went also to the court’s jurisdiction to entertain the petition.
There were very few of the 180 cases where the petitioner or respondent came to Court to try to persuade the Court that they had indeed been genuinely living in a mail box in Maidenhead and that they had sworn an affidavit in Reading before a solicitor who did not exist. That’s not a huge surprise.
Of one who did try, it didn’t go so well
I have to say that I am sceptical as to whether, even on his own evidence, the respondent can establish that he was ever habitually resident in this country. But even assuming that he can, I am persuaded by Mr Murray that it cannot avail either the respondent or the petitioner. The fact remains that in this case, as in all the others, the English court was deceived into believing that, in this case, the respondent lived at Flat 201, and the decree nisi and decree absolute were procured by the use of a purported affidavit which, like the others, was in fact and in law a forgery. As Mr Murray succinctly puts it, the fact is that the false address was presented to the court. On that ground, as Mr Murray submits, the Queen’s Proctor is entitled to the same relief in Rapisarda v Colladon AL11D00099 as in the other cases.
95.Quite apart from that, there are other difficulties in Ms Villarosa’s way. The use of the wrong address was not, as Ms Villarosa would have it, a “mistake”; it was deliberate. Moreover, even if I could in some way cure this defect in the petition it is far from clear that this could, without more ado, retrospectively cure the process culminating in the decree nisi and the decree absolute. And in any event, Leake v Goldsmith  EWHC 988 (Fam),  2 FLR 684, a very different case, does not assist Ms Villarosa, nor do two other cases to which reference was made, S v S (Rescission of Decree Nisi: Pension Sharing Provision)  IDS Pensions Law Reports 219 and Kearly v Kearly  EWC 1876 (Fam),  1 FLR 619.
96.Ms Villarosa submits that the petitioner and the respondent were innocent parties, who did not collude or in any way take part in whatever fraud may have been committed by Dr Russo or Nolton. I am prepared to assume in their favour that they were taken advantage of by others who were intent on making money dishonestly at their expense. But their plea of innocence will not wash. On the petitioner’s own account, she must have realised that there was something distinctly odd about the affidavit she was being asked to sign. So far as the respondent is concerned his (admitted) signature to the acknowledgment of service faces him with a dilemma from which he cannot escape. If, as he says, he signed the form in blank, then he must take the consequences. If, on the other hand, it had been completed when he signed it, how can he explain the fact that his address is shown immediately below his signature as Flat 201 and not, as he had notified Dr Russo by email on 1 February 2011, his true address in Bromley?
How would we stop this sort of fraud happening again? Other than cloning the marvellous Julie Farrah (who I hope has received a promotion or some sort of bonus)
The fraud in these cases was, I have no doubt, facilitated by rules which, as explained in paragraphs 2 and 10 above, enabled the architects of the fraud to spread the issue of 180 petitions very thinly across no fewer than 137 different county courts. For reasons unconnected with what this case has uncovered, that facility is shortly to be very drastically curtailed. As I explained in my recent View from the President’s Chambers: The process of reform: an update  September Fam Law 1259, 1262, Her Majesty’s Courts and Tribunals Service is, with my active support, proceeding to centralise the handing of divorce petitions, concentrating this work in a limited number of locations where petitions will be issued and all special procedure divorces will be processed. I anticipate that by this time next year there will be fewer than twenty, possibly as few as a dozen, places at which a divorce petition can be issued.
100.This alone, however, will probably not be enough to prevent such frauds. There is no need for me to set out each of Mr Murray’s helpful suggestions, but there are two which I can usefully mention. One is that both the petition for divorce and, in special procedure cases, the notice of application for decree nisi should require the completion of a statement of truth in a specified form next to a prominently displayed warning of the penalties for untruth. The other is that part of the process in the court office for issuing a divorce petition should include a search of the court’s FamilyMan system to identify whether the address(es) given in the petition have been used in other cases. Each of these suggestions, it seems to me, merits careful consideration, though until such time as the court has up-to-date IT systems (which could no doubt be programmed to identify automatically any relevant addresses) I recognise that implementation of a standard search procedure will no doubt have resource implications.
I loved this case. It might not have huge legal implications (although I suspect if you are an Italian couple living in a flat in Maidenhead, your divorce might take a bit longer to get issued), but what a fantastic human interest story. I think there’s a good documentary in that.