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Tag Archives: divorce

Extending an olive branch

Posted on January 17, 2020 by suesspiciousminds

 

 

I like to occasionally share with you the peculiar world of big money divorce cases, because when you are used to domestic violence, crack cocaine, scabies, gas-lighting and smearing (I hasten to add that is at work, not my personal life) hearing about people argue about how big a yacht they need is light relief.

 

The case name on this one stood out to me when I saw it on Bailii in the Family Court section of newly reported cases. See if you can guess why…

 

Christoforou v Christoforou (Alleged Removal of Trees from the Applicant’s land) [2020] EWHC 43 (Fam) (14 January 2020)

http://www.bailii.org/ew/cases/EWHC/Fam/2020/43.html

 

That’s been wrongly filed, I say to myself, says I. But no, it is in the right place. And it genuinely is a fact finding hearing as to whether or not a husband has cut down olive trees from his ex-wife’s land.

As part of the financial settlement in a sixty million pound divorce, some land was transferred from the husband to the ex-wife. In those proceedings, the Court had this to say about the husband’s honesty

 

9.In this context, I bear well in mind, as I must, that findings of previous attempts to mislead the court, or of outright lies found to have been told to the court, are not in themselves evidence that the respondent is necessarily lying to the court in the context of “the tree issue”. In his earlier judgment, reported as Christoforou v Christoforou [2016] EWHC 2988 (Fam), Moylan J made a number of clear findings against the respondent. He found, in terms, that he was a dishonest and unreliable witness. In paragraph 26, his Lordship said this:

 

 

 

“When assessing his evidence I have, of course, considered the extent to which it is based, for example, on faulty or mistaken recollection or the absence of documents. I have come to the clear conclusion that his evidence, when dealing with contentious issues, was largely based on an indifference to the truth and was motivated by what he seeks to achieve in these proceedings rather than on his true recollection of events. I am satisfied, from the way in which significant elements of the husband’s factual case have mutated during the course of these proceedings and from the way in which he gave his evidence, that this has to a significant extent been deliberate.”

 

The wife’s allegation was that when she got to her newly recovered land, fifty olive trees had been removed. In a huge coincidence, a piece of land that the husband owned acquired about fifty new olive trees. This is a head-scratcher, no?

 

I’m delighted to see that the wife had spent £500,000 litigating this issue (I really hope that means the recovery of the land, and not just the trees, but who knows?)

 

 

  1. The matter comes back before me today (i.e. 6 March 2019). The respondent continues to make no admissions in relation to liability notwithstanding that these matters have absorbed several days of court time and an enormous amount of the lawyers’ time with the inevitable expense which that has entailed. The applicant’s costs alone are now approaching c. £500,000 on this one issue alone.

 

I honestly think that’s just the trees.

 

The litigation included :-

 

Drone evidence!

Allegations that the drone evidence was tampered with.

A forensic expert to consider whether the SD card from the drone had been tampered with.

Tree experts!

The husband saying that he had bought the olive trees from someone else (that someone saying ‘yes, I sold him a bunch of very small and new olive trees, but not THESE ones)

The husband asserting that there were in fact NO olive trees on the wife’s land, but merely some straggly old trees which were just used as ‘windbreakers’ and were cleared.

The ghost of George Washington giving character evidence via Ouija board

 

(One of those things is not true. But only one of them)

 

My conclusions and findings

41.Having carefully reviewed all the evidence which is before the court, I am entirely satisfied that, on the balance of probabilities, the respondent was responsible for the removal of the applicant’s trees prior to the formal transfer to her of the plots of land on which they previously stood. If he did not physically assist in the removal of the trees, I am satisfied that he gave instructions to a team of contractors to carry out the removal. It is abundantly clear from the terms of Mr Cocking’s report that this operation would have involved a substantial number of man hours and, most probably, a significant amount of heavy lifting equipment to remove and transport the trees. It was, in my judgment, a substantial operation which was motivated by a desire not only to preserve what he could from land which he had fought tooth and nail to preserve in the context of the ongoing matrimonial proceedings: it was also, as I find, an act of pure spite against the applicant.

 

 

42.Whilst the respondent admitted removing eight “potted” palm trees, he has maintained throughout that he did not remove any of the missing olive trees as the applicant was alleging. In support of that ‘defence’ he has sought to construct an elaborate narrative into which he has woven various ‘explanations’ as to why her allegations are unlikely to be true. He has declined to submit himself for cross-examination in relation to his narrative, aspects of which are patently untrue in the light of the unchallenged expert evidence. I do not accept that the CAPO documents assist me at all in relation to the tree issue. These were provided to the SJE and found no traction whatsoever in Mr Cocking’s report. Further the statement from Mr Theodoridis dated 21 November 2018 confirming his conversation with Mr Cocking confirms specifically that the (transplanted) trees shown in situ on the respondent’s retained land identified in various photographs were not sold by his nursery business to the respondent. The statement confirms precisely what was sold to him (i.e. 48 small ornamental olive trees which were not trees designed for the commercial production of olives and none more than 6 years old at the most). The statement from Mr Theodoridis contains a statement of truth and has never been the subject of formal challenge by the respondent. I can only conclude therefore that this aspect of the respondent’s narrative account is a pure fabrication. I know not whether he has at any stage planted anywhere on his retained land elsewhere in Cyprus the trees which he describes in paragraph 18 of his April 2018 statement but I am confident on the basis of the undisputed expert evidence that these were not the trees observed by Mr Cocking during his site visit. Thus, I reject in its entirety the detailed description he gave at paragraphs 18 to 20 of how his workmen planted the trees supplied by the nursery over the course of five days and his account of having spoken to those workmen when some of the trees died. I reject entirely his denial of having removed, or caused to be removed, olive trees from the farm and I find his challenge to the authenticity of the drone footage to be part and parcel of the narrative he was constructing in defence of his former wife’s allegations. He appears to accept in paragraph 29 of his statement that whatever was removed from the land was removed by his work force on his instruction but he then attempts to pass this off as the ‘cutting back of some wind breakers’. In this context, I remind myself about what I saw and observed when I watched the drone footage prior to the instruction of either of the joint experts in this case. There is no doubt in my mind that what I was observing in the earlier footage, taken prior to the removal of the trees in question, was an established row of mature olive trees. It was only the indignation expressed by the respondent through his counsel on that occasion and the strength of his denial of involvement which persuaded me to allow him to proceed with the instruction of a single joint expert in relation to the authenticity of the drone footage and the instruction of Mr Cocking. It follows that I reject the respondent’s account at paragraph 65 of his statement in relation to why the drone footage is unlikely to be genuine just as I reject his attempt to pass off what was removed as a ‘row of wind breakers’ if that was indeed the thrust of his case.

 

 

43.Further, I reject the respondent’s account in paragraph 70 of his statement that, on receiving the initial allegation in November 2017 that he had removed the trees, he had a conversation with a local nursery about the impossibility of such an exercise. If I am wrong and any such conversation took place, it was likely to have been part and parcel of the false narrative which he was seeking to construct for the purposes of his defence to this court. I reject the evidence of Ms Theophilou as assisting one way or the other on the principal issue of the respondent’s liability for the removal of the trees. She had been asked to express a view about the likelihood of mature trees surviving the transplantation process and, as is now apparent, some of the re-transplanted trees have not survived the restitution exercise which the respondent agreed to put in place following receipt of both experts’ reports.

 

 

44.I am driven to conclude, as I find to be implicit from the respondent’s own actions and the instructions given to his legal representatives since receipt of those expert reports, that his written evidence to this court contains a number of highly misleading and untrue representations as to his own involvement in the removal of the trees from the applicant’s land. Further, I find that at the time he made those representations, he knew them to be untrue. In this context, I agree with the earlier findings made by Moylan J (now Lord Justice Moylan) that the respondent cannot be considered a reliable witness in terms of the truth of several aspects of his evidence as presented to the English court in the context of this long-running matrimonial litigation and its implementation

 

Of course, whilst all of this is mildly amusing and these are very rich people involved in a process of gradually moving funds from their own bank accounts into the bank accounts of their legal representatives  [which I am honour-bound as a lawyer to consider a good and proper thing to do and all clients should do more of it], I also remind myself that this nonsense has tied up a family High Court Judge for a considerable period of time whilst other cases wait, and that to do so involves paying the Court a very meagre fee. About time that the Government looked at making big money divorce cases pay a Court fee commensurate with the valuable and scarce public resource they are taking up.   (My quick look at Court fee schedule suggests one of these parties had to pay £255 court fee for a disputed ancillary relief application)

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“Unnourished by sense.”

Posted on March 22, 2019 by suesspiciousminds

 

It is always nice to see a judgment from Sir James Munby, and this one has everything, including the title above, which I intend to steal and deploy at every available opportunity.

 

(The fact that the phrase was originally coined by an American Judge whose given name was “Frankfurter” makes me even fonder of it, as does the fact that the case it was taken from is one where the US Court ruled that the historical rule that a husband and wife could not conspire to commit a criminal act was nonsense based on medieval views of women being the property of their husband  United States v Dege 1960 http://www.worldlii.org/us/cases/federal/USSC/1960/136.html

 

Such an immunity to husband and wife as a pair of conspirators would have to attribute to Congress one of two assumptions: either that responsibility of husband and wife for joint participation in a criminal enterprise would make for marital disharmony, or that a wife must be presumed to act under the coercive influence of her husband and, therefore, cannot be a willing participant. The former assumption is unnourished by sense; the latter implies a view of American womanhood offensive to the ethos of our society. )

 

What is the case about?

In a nutshell, some people got divorced on the grounds of 2 years separation when they hadn’t been separated for 2 years (in one of the cases, they’d only been married for 22 months, so couldn’t possibly have been separated for 2 years). The Court wrongly granted the divorces. The problem got flagged up by Court software after the event [apparently showing that 11 divorces were made in 2016 that shouldn’t have been granted], the Court fudged the mistake by making orders it didn’t have power to make. The people then remarried, making them inadvertently bigamists, Sir James Munby learned of the Court software throwing up divorces that had been wrongly made and looked into it, the Legal Aid Agency said (I’m paraphrasing) “Just because the State cocked up your divorce, and now says you’re not divorced, or might not be, and you might be a bigamist or might not be,  and your new husband might be deported by the immigration authorities if your second marriage isn’t lawful, and you need to be in a Court hearing to argue about that involving really complex case law going back to 1936, the case law being so complicated that it made a former President of the Family Division (but not Sir James Munby) say with exasperation “I find it impossible to discover any clear and logical principle from the decided cases.” , well all of that doesn’t mean that you get legal aid to help put this right. You are £37.17 a month over the limit for legal aid. Do it yourself. Good luck, pal. ”

 

THAT is what caused Sir James Munby to say

 

 

  • I do not criticise the Legal Aid Agency which was, no doubt, operating within the confines of a system imposed on it by others. But the idea that someone with an available net monthly income of £625.87 (the amount if one takes the actual rather than the notional amount of her rent: £1,580.87 – (1,500 – 545) = £625.87) and, for all practical purposes, no capital has the means to fund litigation of this kind is, to adopt a phrase used by Frankfurter J in United States v Dege (1960) 364 US 51, page 53, “unnourished by sense.” Nor is it immediately obvious why someone whose disposable income is so low should be denied legal aid because their aggregate income exceeds some artificial limit, let alone when it does so by a sum as trivial as £37.17. After all, P, like all of us, has to live on what is left after payment of PAYE and NI (deducted, of course, at source) and the costs of housing.
  • What ought also to be obvious to anyone with an ounce of common sense and understanding of forensic realities is that no lay person in the position of either P, or for that matter M, could possibly be expected to argue a case of this legal complexity, and this even if English was their native tongue.
  • What I was faced with here was the profoundly disturbing fact that P does not qualify for legal aid but manifestly lacks the financial resources to pay for legal representation in circumstances where, to speak plainly, it was unthinkable that she should have to face the Queen’s Proctor’s application without proper representation. The State has simply washed its hands of the problem, leaving the solution to the problem which the State itself has created to the goodwill, the charity, of the legal profession. For what brought this matter to court was, to repeat, failures, mistakes, by the State, by the court system, and, specifically by judges. Moreover, the application has been mounted by an officer of the State, the Queen’s Proctor. Yet the State has declined all responsibility for ensuring that P is able to participate effectively in the proceedings. I make as clear as possible that in saying this I intend not the slightest criticism of the Queen’s Proctor, who has acted throughout with complete propriety and, moreover, with conspicuous concern for the predicament in which P and M find themselves. Indeed, the Queen’s Proctor, having discussed the point with the court, very properly took the highly unusual step of writing to Messrs Duncan Lewis a letter to assist with P’s application for legal aid in this case. Yet the situation is, it might be thought, both unprincipled and unconscionable. Why should the State leave it to private individuals to ensure that hapless individuals like P and M, victims of the State’s failings, are able to obtain justice? Or is society in the twenty-first century content with the thought, excoriated well over a century ago by Matthew LJ, that justice, like the Ritz, is open to all? It is deeply wrong and potentially most unfair that legal representation in a case like this, where it is a vital necessity, is available only if the lawyers, as here, agree to work for nothing.

 

 

And

 

121.The ultimate safeguard for someone faced with the might of the State remains today, as traditionally, the fearless advocate bringing to bear in the sole interests of the lay client all the advocate’s skill, experience, expertise, dedication, tenacity and commitment. So the role of specialist family counsel, and of the specialist family solicitors who instruct them, is vital in ensuring that justice is done and that so far as possible miscarriages of justice are prevented. May there never be wanting an adequate supply of skilled and determined lawyers, barristers and solicitors, willing and able to undertake this vitally important work. There can be no higher call on the honour of the Bar than when one of its members is asked to act on behalf of a client facing the might of the State. The Bar, I am sure, will never fail in its obligation to stand between Crown and subject. And the same of course goes for the solicitors’ profession. But there is something profoundly distasteful when society, when Government, relies upon this as an excuse for doing nothing, trusting to the professions to do the right thing which the State is so conspicuously unwilling to do or to provide for.

 

The lawyers in this case worked for free to represent people caught up in a life-altering piece of litigation because the State cocked up.

 

I also like that the Daily Telegraph headlined this story in their indupitable way

126.During the hearing on 28 February 2019, I mentioned the fact that I had discovered certain problems with an early version of the software. This, I should emphasise, was well before it was first made available to the public. The fact that I, as an elderly judge, had been able to identify such gremlins seemed to surprise the media: a report of the hearing in the Daily Telegraph of 1 March 2019 carried the headline “Online divorce service glitch revealed by senior judge, 70“, faithfully reflecting the story beneath.

 

 

 

You may be thinking at this point that blaming it on software is easy but decree nisi and decree absolute are actually made by Judges and surely even busy Judges could look at a marriage that was 22 months ago and see that it couldn’t possibly be a 2 year separation case. You are right. Ultimately the mistakes were made by Judges.  (There were 11 such cases in 2016, this is a sample one)

 

  • The parties were married in London on 19 September 2011. In June 2013, the husband, M, acting in person, submitted a divorce petition dated 14 June 2013 to the Willesden County Court. It was returned to M on three occasions before the Court was prepared to accept it: first, on 18 June 2013 because the front page needed to be completed and because of deficiencies in Parts 2 and 4; then on 27 June 2013 because the deficiency in Part 2 had still not been remedied; and finally on 3 July 2013 because with effect from 1 July 2013 the issue fee had increased from £340 to £410. It is to be noted that through all this to-ing and fro-ing no-one in the court office had spotted the fundamental problem with the petition. After these delays, the petition was issued on 26 July 2013.
  • In Part 3, “Jurisdiction”, M asserted jurisdiction in accordance with the Council Regulation, stating that he and his wife, P, were both habitually resident in England and Wales. Part 5, “The fact(s)”, follows the structure of section 1 of the Matrimonial Causes Act 1973 and requires the petitioner to mark the relevant boxes. M put a cross in two boxes, one against the rubric “I apply for a divorce on the ground that the marriage had broken down irretrievably”, the other against the rubric “The parties to the marriage/civil partnership have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the Respondent consents to a decree/order being granted.” In Part 6, “Statement of case”, M wrote: “The respondent has refused to share the same household as the petitioner since the marriage took place on the 19th September 2011.”
  • The problem which has given rise to the present proceedings is immediately apparent: given that the marriage had taken place on 19 September 2011, the period of two years referred to in section 1(2)(d) of the 1973 Act had not elapsed by the date the petition was issued on 26 July 2013. Unhappily, even at this stage the problem was not identified by the staff at Willesden County Court, notwithstanding that the Automatic Event Record generated in the court office and dated 29 July 2013, accurately recorded under the heading Case Details that the Grounds for Divorce (sic) were “2yrs separation”, that the date of marriage was 19 September 2011 and that the date of issue was 26 July 2013.
  • In her acknowledgment of service dated 12 August 2013, P, in answer to question 1C (“Do you agree with the statement of the petitioner as to the grounds of jurisdiction set out in the petition? If not, please state the grounds on which you disagree with the statement of the petitioner.”), answered “I agree with the statement of the petitioner.” In answer to question 4 she stated that she did not intend to defend the case and in answer to question 5 that she consented to a decree being granted. M’s “Statement in support of divorce … – 2 years, consent” was dated 27 September 2013.
  • On 22 October 2013 the file was put before Deputy District Judge Quin. The Deputy District Judge completed the Form D30 (“Consideration of applications for Decree Nisi / Conditional order under FPR 7.20”), by ticking the relevant boxes and making the appropriate deletions so as to say “I certify that the Petitioner is entitled to a decree of divorce on the following ground(s): 2 years separation by consent.”
  • On 21 November 2013, decree nisi was pronounced by District Judge Steel, the order stating, so far as material for present purposes: “The Judge held that the petitioner and respondent have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition, and that the respondent consents to a decree being granted …” The decree was made absolute on 24 February 2014.
  • On 26 January 2015, M remarried in Brazil, his new wife being a Brazilian national.
  • On 12 October 2016, a member of the HMCTS Family Improvement Team at HMCTS headquarters emailed the delivery manager at what was now the Family Court at Willesden seeking “urgent information from a divorce file where the petition should not have been issued.” The delivery manager referred the matter to District Judge Middleton-Roy the same day, with this note:

 

“It would appear that this petition was issued in error. It was issued under 2 yrs with consent but the parties were only married for 22 months. Directions/ comments please. DA has already been issued 24/2/14.”

District Judge Middleton-Roy responded the same day. He ticked the “No action necessary” box on the referral form and commented: “I am not clear why the issue has arisen now – neither party appears to be applying to set aside the DA.”

  • The next morning, 13 October 2016, the delivery manager emailed the HMCTS Family Improvement Team to report District Judge Middleton-Roy’s comment. The response from the Family Improvement Team was an email to the delivery manager the same morning:

 

“The issue has been raised as our data checking process returns has picked this case up as a case that should not have been issued, thereby possibly making the DA invalid. Can this be re-referred down to a judge for consideration of directions to be given in view of this …”

The delivery manager put the file back before District Judge Middleton-Roy the same day. On 17 October 2016 he directed that the matter be listed for directions with a time estimate of 30 minutes and instructed the court staff write to both parties as follows:

“The Judge has considered that papers and directs that I write to you as follows: An error has been identified in the process giving rise to the Decree Absolute (final divorce) in these proceedings in 2014. The matter has been listed for a directions hearing when the court will identify what steps are necessary to restore the issue.”

Letters in those terms were sent to both parties on 19 October 2016, enclosing notices, dated 17 October 2016, listing the directions hearing for 18 January 2017.

  • The hearing on 18 January 2017 took place before District Judge Middleton-Roy. M was present in person; P did not attend the hearing. The order made by District Judge Middleton-Roy “RECORDED” certain matters, including that “This hearing was listed of the Court’s own motion and not on the application of either party”; that “The Court was informed that subsequent to the granting of the Decree Absolute in this action, the Petitioner has re-married”; that “The Court determined that the original petition … proceeded erroneously by not relying upon the correct facts in support, namely two years separation, when the parties had not been separated for a full period of two years at the time of presenting the petition”; that “The Court determined that the Petitioner shall be permitted to amend the petition, to rely upon the fact of the Respondent’s behaviour”; and that “The court dispensed with the need for a formal written application to amend the petition and dispensed with the need for notice to be served upon the Respondent, the petition having proceeded on an undefended basis and no answer having been filed.” The order also “RECORDED” that:

 

“The Court determined, declared and certified that the Petitioner is entitled to a decree and that the Decree Nisi dated 21.11.13 and Decree Absolute pronounced in public on 24.02.14 remain valid”

and that:

“The Court declared that nothing in the terms of this Order has the effect of invalidating the Petitioner’s subsequent marriage.”

  • The order further ordered (“It is ordered that”) that:

 

“2.1 Permission to the Petitioner to amend the petition dated 14.06.2013 in the form of the amendment dated 18.02.2017.

2.2 Filing and service of an application to amend the petition is dispensed with.

2.3 The Decree Absolute pronounced on 24.04.2014 remains valid.”

  • The court file contains a copy of the petition marked at the top of the first page, in what appears to be District Judge Middleton-Roy’s handwriting, “AMENDED” and at the foot of the final page “18.01.2017”, again in what appears to be his handwriting, although it appears that M also re-signed the petition. In Part 5 the cross against the rubric “The parties to the marriage/civil partnership have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the Respondent consents to a decree/order being granted” has been deleted and, in its place, a cross inserted against the rubric, which was underlined, “The Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent.”
  • On 24 March 2017, in Brazil, P married a Brazilian national.

 

 

 

The legal argument (and it is complex) hinged on whether the decree absolutes, which were made on an incorrect premise (that the parties had been separated for 2 years when it was apparent on the face of the documents that they had not been) were VOID – which means the divorce didn’t happen and the subsequent remarriages of both parties were unlawful or VOIDABLE meaning that a Court could decide whether to void them or whether to leave the divorces legally intact.

 

The conclusion (and if you want to see how Sir James Munby got there good luck to you, its at paragraphs 45-103 inclusive) is

 

 

 

40.At the end of the hearing I reserved judgment. On 4 March 2019 I informed the parties of my decision: that the decrees are VOIDABLE, not void; that the decrees will NOT be set aside; and that the decree absolute accordingly remains valid and in force. I now (22 March 2019) hand down judgment.

 

And reasoning

 

  • At the end of this long analysis of the jurisprudence, I have come to the clear conclusion that the consequence of what happened in this case is that the decrees are voidable, not void.
  • I can set out my reasoning as follows, taking the points in no particular order:

 

  1. i) First, there is no previous case directly in point. The present case turns on statutory provisions linguistically and analytically different from those in play both in Butler v Butler, The Queen’s Proctor Intervening [1990] 1 FLR 114, and in Manchanda v Manchanda [1995] 2 FLR 590.
  2. ii) Secondly, I should lean against holding the decrees void unless driven to that conclusion by the language and context of the relevant statute, here section 1(2) of the Matrimonial Causes Act 1973.

iii) Thirdly, and applying the approach articulated by Sir Jocelyn Simon P in F v F [1971] P 1, I need to ask myself whether Parliament can really have intended that the consequence here should be that the decrees are nullities and void. My answer is that Parliament surely cannot have intended the injustice which will inevitably flow, not just to M and P but also to their new spouses, if the decrees are void.

  1. iv) Fourthly, and as I have already explained, the fact that there has been non-compliance with the statute is not determinative.
  2. v) Fifthly, although recognising that the statutory context is different, the fact is that the structure of section 1(2) of the Matrimonial Causes Act 1973 – “the court … shall not … unless the petitioner satisfies the court” – is indistinguishable from that in both section 33(1) of the Matrimonial Causes Act 1965 and section 6 of the Divorce Reform Act 1969 (now section 10 of the 1973 Act) – “the court shall not … unless it is satisfied” – and the case-law is all at one that in those cases the consequence of non-compliance is not that the decree is void but rather that it is voidable.
  3. vi) Sixthly, both the statutory context and the structure and language of section 1(2) of the 1973 Act are markedly different from the context, structure and language of section 9(2).

vii) Seventhly, it is quite clear that there was here no non-compliance with section 3 of the 1973 Act, so that, in contrast to the situation in Butler v Butler, The Queen’s Proctor Intervening [1990] 1 FLR 114, the court here did have jurisdiction to entertain the petition.

viii) Eighthly, the petition correctly pleaded the only relevant ground, namely that “the marriage has broken down irretrievably”.

  1. ix) Ninthly, the error in correctly identifying the relevant fact did not prevent the court entertaining the petitioner’s subsequent application for a decree: in Leggatt LJ’s sense of the word, District Judge Steel had jurisdiction to hear the petitioner’s application for a decree nisi. The District Judge’s error was, to adopt Leggatt LJ’s words, an inadvertent failure to observe a statutory provision – section 1(2) of the 1973 Act – against the exercise of it.
  2. x) Tenthly, there was in the present case another fact in existence at the date of the petition which if properly pleaded – by an amendment of the petition – would undoubtedly have justified the court granting a decree nisi and thereafter making the decree absolute.
  3. xi) Finally, although this is not, I emphasise, a necessary pre-requisite to my conclusion, in the present case the evidence to establish that fact was actually set out in Part 6 of the petition. So, in this particular case, the defect in the petition came down to this: that the cross had been put in the wrong box in Part 5 – a defect simply curably by putting the cross in the correct box. It is sometimes said that Roger Casement was hanged by a comma, but, whatever the truth of that, one has to ask what conceivable principle of justice or public policy could possibly be served by treating as nullities decrees where the parties were the innocent victims of failure by the court itself, and where their subsequent marriages, entered into in complete good faith and in reliance upon the court’s own orders, would thereby be treated as bigamous, when the entire problem derives from the fact that a cross was placed in the wrong box. We are no longer in the days of Parke B. Surely the modern judicial conscience would revolt if compelled to come to such a conclusion.

 

(So actually, and Sir James Munby says this, DJ Middleton-Roy was right in the hot-fix that he applied to the situation, although there was quite a bit of judicial reasoning to get to that point. In old Math teacher language, DJ Middleton-Roy had the right answer, but hadn’t shown his working.)

 

I wasn’t familiar with the Roger Casement was hanged by a comma history, so there’s a link here, and it is a worthwhile side-track   (one of the things I like most about Sir James Munby is that his judgments expand your mind)

 

https://ipdraughts.wordpress.com/2013/10/14/hanged-on-a-comma-drafting-can-be-a-matter-of-life-and-death/

 

I think the portions of the judgment dealing with the human realities are also interesting and bring the case to life

 

41.The focus of the hearing was, inevitably, on the difficult questions of law to which I must come in due course. But it must never be forgotten that, at the end of the day, this application affects four human beings – P, M and their new spouses – in a matter which is of transcendental importance to all of them. P, in her statement, puts the point in understandably emotive and powerful language:

 

 

 

“I am an innocent party to these proceedings … My current husband and I married in Brazil in good faith after the amended petition … on 24/03/17 before God and our families … the idea that I have committed bigamy is convulsing and my mental health is now being affected … if it indeed the case that my former husband and I is not divorced that means I am a bigamist [Bigamy is illegal in Brazil] irrespective if it was a legal oversight, and I can be arrested, detained and prosecuted if I try to annul the divorce.”

 

She then added this very important point:

 

“In addition as my husband is a Brazilian national who travels to the UK as my spouse will no longer be able to enter the UK as he will no longer be my spouse and the Home Office don’t allow partners visitation. This is going to affect my marriage severely.”

42.Ms Bazley and Ms Dunseath make similar points in their skeleton argument:

 

 

 

“In her statement [P] raises particular concerns about the fact that the setting aside of the decrees would seem to mean, amongst other things, that she had entered into a second marriage whilst already married – coming within the definition of the offence of bigamy, contrary to s.57 Offences Against the Person Act 1861 (and, it appears, a contravention of Article 1521(VI) of the Brazilian Civil Code – acting unlawfully by remarrying whilst still being married).

 

[Her] concerns are both legal, she may have committed an offence, and moral/spiritual, in that she feels deeply disturbed by potentially having committed that offence. Further, it is enormously distressing to her to contemplate that her marriage may be invalidated, despite having taken place in good faith, in a ceremony witnessed by family and friends.

 

The setting aside of the decrees would cause [her] emotional, psychological, and financial harm, and may disturb her new relationship.”

43.The potential immigration problems in this kind of situation are all too real, as the reaction of the Home Office to the predicament in which the parties in Solovyev v Solovyeva found themselves, so clearly illustrates: see Solovyev v Solovyeva [2014] EWFC 1546, [2015] 1 FLR 734, para 4 and Solovyev v Solovyeva [2014] EWFC 20, para 7. The fact that the official policy of the “hostile environment” has recently been replaced with the semantically less challenging policy of the “compliant environment” is, one suspects, of little comfort to bewildered people like P and M.

 

 

44.To that I should add what may be obvious from what I have already said but nonetheless needs to be stated plainly and without equivocation: both M and P are the wholly innocent victims of serious mistakes by the court, mistakes not merely by court staff but, more importantly, by judges – Deputy District Judge Quin and District Judge Steel. True it is, that the original mistake was by M, when he made the mistake of marking the wrong box in Part 5 of the petition, and that if he had not made that mistake there would never have been any problem. But that is wholly beside the point. If M’s mistake was the causa sine qua non – the ‘but for’ cause of what happened –, the causa causans – the real, primary, cause was the errors of the court, of the judges

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Contested divorce

Posted on November 29, 2018 by suesspiciousminds

 

Contested divorce was much in the headlines this year, because of the Owens v Owens case that went up to the Supreme Court. It is still pretty rare for someone to actually contest a divorce, rather than just grumble, tear up the letters or argue about the precise wording, there are about twenty full on contested divorces each year. (I used to do divorce law for a little while – not terribly well, and I only had one person want to actually contest a divorce – until I set out what it would cost and what the prospects of success were)

I don’t write about divorce cases much (unless they are very entertaining) so this is an extraordinary contested divorce case.

To give you the flavour, Ms W (Wife) was told by Mr H (the Husband) on 8th May 2017 that he had been having an adulterous affair with her best friend for the last 25 years, though he had ended that now, and started with another woman.

Ms W filed for divorce on the grounds of adultery. Mr H disputed that (although admitted the adultery) and cross-petitioned for unreasonable behaviour.

 

 

2.This has been an extraordinary case in very many respects as I shall return to in some detail later. The two most obviously unusual features should, however, be set out at the start. First, that this has been a three-day contested divorce trial. I understand that there are only about twenty contested divorce trials a year in this whole country. Secondly, that the respondent in these proceedings, Mr H, has contested the divorce which Ms W has brought because of his adultery despite admitting to having committed adultery for some twenty-two years of their marriage.

 

 

There was a contested hearing over the course of 3 days. Mr H required all of the witnesses to attend and they all gave oral evidence. That included his sister-in-law, his daughter-in-law, three sons of his former mistress, his former mistress, his daughter, the husband and wife themselves, and a man who bought a car from the husband in 2013….

 

In case you think this isn’t yet weird enough, the original trial was adjourned.

 

 

 

 

12.Pursuant to those directions, the trial was meant to take place on 5 to 7 September but Mr H did not attend on the first day as he was in hospital. He contacted Ms Y who told the court staff that he had told her that he was attacked during the night. The information was that he had been stabbed. I have now seen the police records for that night and they are also extraordinary. Mr H has reported that he got up at 3 a.m. on what was listed as the first day of this trial and drove to his yard (which I understand is in an isolated location) where he was attacked by a man or men. Some two to two-and-a-half hours later he rang for an ambulance and was taken to hospital. He has not cooperated subsequently with the police investigation. The court had to adjourn the hearing until 1 November as Mr H was not here and he was self-representing and had been so since 24 July 2018.

 

The Husband was directed to file medical evidence about this incident and instead filed

 

a poorly written letter from a consultant neurologist whom he was seeing privately. The letter did not say Mr H was unable to come to court. It did not say he was unable to conduct these proceedings. Mr H told me he had been suffering from headaches, blurred vision, loss of memory and had the feeling of little explosions in his head since the alleged incident on 5 September. He told me he believed he had post-concussion syndrome. He told me he believed he had been attacked because of the weight of evidence he had recently delivered to his wife’s solicitors in order to prevent him from attending this hearing.

 

The Judge was not, it is fair to say, convinced by the Husband’s account, which does seem to the impartial observer to share a certain quality with Swiss Cheese.

 

 

 

 

17.I refused the adjournment and gave, as I have said, a judgment about it. There was no medical evidence, just the inadequate letter from the doctor who did not attend court although should have done. Mr H admitted to me he was still driving and had been shooting which I considered incompatible with the symptoms he was telling me about which included blurred vision. I was not satisfied that Mr H had been attacked as he said. I do not know. I do not know if he was attacked at all or whether he arranged an attack. I thought the idea he put forward that his wife had in some way sought to have him attacked was ridiculous, not a line the police were pursuing and, in any event, was counter to Ms W’s interests. The so-called evidence which Mr H referred to is not admissible in any event, as Ms W’s legal team would have been well aware of.

 

 

To cite Alexander Pope, “A little learning is a dangerous thing; Drink deep, or taste not the Pierian spring’

The Husband’s difficulties seem to have largely arisen because he became aware of the provisions of section 1 (2) (b) of the Matrimonial Causes Act 1973

 

 

 

“Where in any proceedings for divorce the [respondent] alleges that the [petitioner] has behaved in such a way that the [respondent] cannot reasonably be expected to live with [her], but the parties to the marriage have lived with each other for a period or periods after the date of the occurrence of the final incident relied on by the [respondent] and held by the court to support his allegation, that fact shall be disregarded in determining for the purposes of section 1(2)(b) above whether the [respondent] cannot reasonably be expected to live with the [petitioner] if the length of that period or of those periods together was six months or less.”

And having admitted twenty five years of adultery, decided to run the argument that the Wife had known about it and put up with it for more than 6 months, so could not rely on it now.

Which is correct, if you can prove that she knew, but it seems a very pointless argument to have.

 

105.Two things in particular puzzled me when I read the papers in this case. Why was Mr H contesting the divorce proceedings when he agreed that the marriage was over and accepted that he had been sleeping with his wife’s best friend for something over twenty-two years? Even if Mr H considered that he had a technical defence to her petition, why would he be so determined that the divorce had to be on his terms? Secondly, why did Mr H, and indeed Ms Y, blame Ms W for the destruction of their family lives and attribute this to what they term Ms W’s lie rather than to their affair and all the deception of so many people that such an affair involves? I am still unclear as to the explanations.

 

84.His statement is dated 28 March 2018. His statement is lengthy, and most is irrelevant. He has taken diaries prepared over the years Ms W and used them to give detail to his statement and that of Ms Y and to give some semblance of authenticity by giving dates. I will only deal with matters which relate to the issues before me. Mr H says he had no intention to perjure himself in his acknowledgement of service form when he denied committing adultery, and says:

 

“I am accused of having another adulterous relationship which again is not true. In my answer I then elaborated that although I had been in an adulterous relationship, which V knew about, crucially that relationship had ended after her knowledge of it. As I understand it, as we had been living together for a full six months after knowledge, she cannot rely on the past adultery as a basis for the divorce.”

 

I won’t get into all of the evidence given (it is well worth reading, because every paragraph of this judgment contains a gem), but here’s some judicial remarks on Husband’s evidence

 

 

 

98.Mr McCourt cross-examined Mr H at length but also kept to the most relevant parts of his excessively lengthy statement. Mr H emerged from the cross-examination, and indeed from his own cross-examination of Ms W’s witnesses, as a deeply dishonest man. I do not believe him about any of the matters in issue in this case. His attitudes displayed in these proceedings are those which were common forty years ago, not today. He has a minimal respect for women who are there to please him and to do his bidding. In his view of the world, marriage does not entitle a woman to anything other than what her husband chooses to give her.

 

 

 

99.He is clearly proud of his excessive drinking and thought everyone occasionally gets so drunk they have no memory of what has happened. He told me that he had not told the police responsible for fire arms and shotguns about his diagnosis of post-concussion syndrome. He told me his current certificates were under review and that he had no guns in his possession, though he had access to them. He told me he was still shooting. He told me that when applying for his certificates he had lied when answering the questions about being in a happy marriage and about how much he drank, he told me everyone did that. I do not think so. I shall be writing to Essex Police about his certificates as he admitted to committing offences under section 26 and/or 29 of the Firearms Act 1968.

101.In answer to questions from Mr McCourt, he denied he had spoken to Ms W, as alleged by her, on 8 May and could not explain the coincidence of it being that very day that Ms Y insisted all her boys came to her home so that Mr H could speak to them. He blamed his solicitor for the lie in his acknowledgment of service form. He told me all the witnesses I had heard had lied except for him.

102.He described himself as a man of integrity and truth. He told me that Ms W had lied when calling Ms Y her best friend and said that was only the case until about 2005 or 2006. He said that in this case it was Ms W who was the big liar and she wanted to destroy Ms Y’s life. He described the business as his business, not the family business, and agreed that he had increased Ms Y and Ms N’s pay exponentially after the separation. He accepted that Ms W had said to KH that she had suspicions about Mr H and Ms Y in 2010 but could not explain why she would have said that if she had caught them red-handed in 1998 and 2007. He confirmed he did not tell Ms W when he was having sex with Ms Y, so I conclude that she would not know of any specific occasion.

 

(I note in passing that Mr H had apparently acquired an STI from Ms Y and had subsequently passed it on to his wife. Just to remind you all, this man was trying to divorce his wife for her unreasonable behaviour towards him…)

 

Can’t skip over one of the four allegations in his divorce petition, which was that Ms W had ridiculed the bird-feeders he had put up for his mother-in-law, who had been unwell.   (which he, a man who had been having a 25 year affair with his wife’s best friend, described as ‘the final straw’)

 

97.He said the final straw in his relationship with Ms W was when she started to ridicule bird feeders he had put up to please her mother who was very unwell.

 

Well, that certainly changes everything.

I was mildly unsympathetic towards this man, but now I learn of the wife mocking bird feeders, and the boot is clearly on the other foot.

 

134.She did not, I find, belittle his belated efforts to provide his mother-in-law with comfort by putting up bird feeders

 

Oops.

On the mistress’ evidence

114.Sadly, when Ms Y started her oral evidence, she did so by lying. I had told Mr H on Friday afternoon that as he was part-way through his evidence, he could not talk to anyone about the case over the weekend. Mr McCourt was rightly concerned to make sure that that guidance had been followed. Mr H told the court this morning from the witness box that he had seen Ms Y three times over the weekend. She had driven him home from court on Friday and he had seen her twice on Sunday but said that nothing significant had been said about the case.

 

 

 

115.Mr McCourt started his cross-examination of Ms Y by asking her if she had seen Mr H over the weekend which he specified as being from Friday afternoon until Monday morning, and she said, “Once, briefly, on Sunday”. I assume that Mr H was being accurate about the three meetings on the weekend which it appears had been observed. I therefore must conclude that Ms Y started her oral evidence by lying to the court having just taken the oath.

 

(It is hard to beat the impression that you make as a witness by lying the moment you finish taking the oath…)

 

116.I conclude also that Ms Y would say whatever she thinks would assist Mr H in this case. It is obvious to me that Ms Y does, and to a certain extent thinks, what Mr H wants her to. I found it most surprising that she thinks it is a fact that Ms W knew about her affair with Mr H in 2007 because Mr H told her he had told her. She said she had no reason to doubt him. She seemed to think that because there were rumours about her and Mr H in their community, that meant everyone knew. She struck me as a naive woman who has made some very odd choices.

 

 

 

117.She told me each of her sons had lied in their evidence, but I am not sure what she thinks they have lied about. She told me how upset E had been before and after giving evidence and that he had suggested to her that he had not been truthful in court. However, she does not seem to be able to grasp that the unfortunate young man may be trying to salvage his important family relationships even now. She seems to be unaware that none of this case was necessary, that her children need not have been put through any of this if Mr H and she had taken a reasonable stance. I reject her evidence. She is not an honest witness nor an honest person, having clearly acted in a deceptive way for twenty-two years to those close to her and lied in her sworn evidence today. I am still puzzled as to why she thinks she is the injured party in all this.

 

118.I find there is overwhelming evidence to satisfy me that Mr H was committing adultery with Ms Y for over twenty years, but that Ms W did not know this was taking place until Mr H told her this on 8 May 2017. There were occasions when Ms W had suspicions, but these were always allayed by Mr H or by others who did not believe that Ms Y would behave in such a way. Mr H said on 11 June 2007, when Ms W asked him if he was having an affair with Ms Y, that he denied it to her.

 

All of the allegations of unreasonable behaviour by the Husband were found to be untrue (I mean, if you don’t get home on the bird-feeder allegation, everything else pales by comparison), his petition thrown out, and the Wife’s granted on the basis of adultery. The Husband was also ordered to pay all of his Wife’s costs – on an indemnity basis (which means that on any particular expense where there is any doubt, the Wife gets the benefit of any doubt)

http://www.bailii.org/ew/cases/EWFC/OJ/2018/B68.html

VW v BH (Contested Divorce Proceedings) [2018] EWFC B68 (05 November 2018)

 

 

 

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The Tooth, the whole Tooth and nothing but the Tooth

Posted on November 20, 2017 by suesspiciousminds

In which the father from the forty tons of Toblerone case https://suesspiciousminds.com/2017/10/21/forty-tons-of-toblerone/ (remember, he ‘discreetly’ arranged for his children to see a solicitor in a relocation dispute and paid the solicitors fees of £174,000) made an application for mother’s divorce solicitor to be barred from acting for her.

I don’t usually do divorce blogs, but this is curious.

S v S (Application to stop Solicitor Acting) 2017
http://www.bailii.org/ew/cases/EWHC/Fam/2017/2660.html

The deal apparently is that whilst father was deciding which solicitor to instruct himself, he sent round his representative OE to in effect interview some top-drawer matrimonial hot-shot firms (what is known in the trade as a ‘beauty parade’) to see who he wanted to go with.

OE says that on 30th November 2015, he went to see Mishcon de Reya, Stewarts Law and then our lead player, Mr Raymond Tooth of Sears Tooth.
The father/husband decided to go elsewhere, but objected when mother subsequently instructed Mr Tooth.

Mr Justice Williams was appropriately sniffy about the failure, even in such a big money case with uber-silks, to provide the practice direction documents.

12. I have read the trial bundle. I note in passing that none of the usual practice direction documents, such as an agreed chronology, case summary, reading list, or list of issues was included as required by PD27A. I very much hope I shan’t have to make this observation again to those involved in this case.

The chronology, when it finally emerged, threw up something interesting. Father/husband had signed a letter of retainer with HFC solicitors on 23rd November 2015 – a week before he saw at least two other solicitors and possibly the third, Mr Tooth.

It was the subject of debate whether this was understood practice in big money divorce cases that even after signing on with one lawyer, a client might continue the beauty parade to see if anyone else caught his eye, or whether this actually was a way of conflict blocking any other hot-shot firms to prevent them acting against husband/father.

Williams J sets out the law

8. Supplementing the submissions on the law that I have received, both orally and in writing, I have been referred to the following texts and cases: (a) Passmore on Privilege (3rd ed); (b), Minter v Priest [1929] 1 KB 655, (c) Minter v Priest : [1930] AC 558, (d) In a Little Spanish Town (Francis Day & Hunter v Bron) [1963] Ch 587; (e) Great Atlantic v Home Insurance [1981] 1 WLR 529; (f) HRH Prince Jefri Bolkiah v KPMG (A Firm) [1998] UKHL 52.; (g) Davies v Davies [2000] 1 FLR 39; (h) Re T v A, (children, risk of disclosure) ) [2000] 1 FLR 859; (i) B & Others v Auckland District Law Society [2003] UKPC 38; (j) Fulham Leisure v Nicholson, Graham & Jones [2006] EWHC 158; (k) the West London Pipeline case [2008] EWHC 1729; (l) Re Z (restraining solicitors from acting) [2009] EWHC 3621; and (m) G v G (financial remedies, privilege, confidentiality) [2015] EWHC 1512.

9. The law ultimately was largely agreed, although there was a difference between the parties on three issues: firstly, whether the risk of disclosure of confidential or privileged information can come from subconscious or unconscious influence; secondly, whether there can be a partial waiver of privilege and how that might be dealt with; and thirdly, whether making an injunction is mandatory if the grounds are established, or whether the Court still retains a discretion whether to grant the order or not.

10. In summary, the principles I derive from all of those cases and which I apply are as follows.

(a) the duties arising in confidentiality and legal professional privilege arise whether the information is imparted to a solicitor directly by a principal, or by an agent on behalf of his principal. It would therefore apply to any confidential information or legally privileged material which arose between Raymond Tooth and OE.

(b) the duty arises whether the parties formally entered into a legal relationship or not. The imparting of information in contemplation of such a relationship would suffice. Thus a preliminary meeting between solicitor and client in the course of a beauty parade could suffice, probably even if pro bono or not charged for.

(c) the rules apply in family cases just as much as in civil actions. There is no absolute rule though that a solicitor cannot act in litigation against a former client.

(d) in the first instance it is a matter for the solicitor involved to consider whether, consistent with his professional conduct rules and the proper administration of justice, he can continue to act. If he concludes he cannot, that will usually be the end of the matter. If he concludes he can continue to act then the Court retains the power to grant an injunction to prevent him from acting.

(e) where a former client has imparted information in confidence in the course of a fiduciary relationship, and /or where that information is privileged, there are strong public policy reasons rooted in the proper administration of justice which support the approach that a solicitor in possession of such information should not act in a way that might appear to put that information at risk of coming into the hands of someone with an adverse interest.

(f) it must be established that the confidential or privileged information is relevant or may be relevant to the matter on which the solicitor is now instructed by the person with an adverse interest to that of the former client.

(g) where it is established that a solicitor is in possession of such confidential and/or privileged information, the Court should intervene to prevent the information coming into the hands of anyone with an adverse interest, unless there is no real risk of disclosure. Once it is established that a person is in possession of such information the burden is on them to show that there is no such real risk. In this context “real” means it is not merely fanciful or theoretical, but it does not need to be substantial.

(h) the risk of disclosure may arise from deliberate act, inadvertent disclosure or unconscious influence or subconscious influence. In the latter case in particular it might be quite fact specific whether that risk arises or not.

(i) in the context of family litigation it is hard to conceive of a situation where the risk of disclosure would not satisfy that test where the Court had concluded that detailed, confidential financial information and/or privileged information had been disclosed to a solicitor by one party to a marriage which was, or might be relevant to a potential dispute between them. In most cases that would create a real risk where that solicitor was subsequently instructed by the other party.

(j) a party advancing such an application may decline to waive privilege or confidentiality, or may elect to partially waive privilege. If he partially waives privilege the Court may order full disclosure in relation to that transaction in order to determine an issue such as an application for an injunction like this, and the Court may take steps to ensure that the privilege is not waived for all purposes, but to ensure that the cat can be put back into the bag. In cases such as this the question should be considered at the directions stage, in particular where, as here, partial disclosure in the form of the attendance note has been made.

(k) if the principles on which an order can be made are established an order should usually be made, unless it is established that there are other more significant public policy reasons for not granting it, including that the Court concludes that the injustice to the respondent in granting the order outweighs the injustice to the applicant in not granting it. Relevant considerations might include, firstly, whether the information had been imparted during an exercise designed either wholly or in part to conflict out other solicitors who the respondent might seek to instruct; whether there are other firms who might now be able to act for the respondent; whether the application was made promptly; the additional expense and delay that might be occasioned to the respondent if they were obliged to instruct new solicitors; whether any such expense could appropriately be off-set by the applicant.

 

The issues in the case were, however, mainly factual, rather than legal. Had husband’s representative OE actually met with Mr Tooth at all, and had confidential information been exchanged. This sounds like a peculiar thing to have a factual debate about. But OE said that he had met with Mr Tooth, Mr Tooth disagreed. Both had to give oral evidence.

OE said that another lawyer was present, that Mr Tooth had said that his charging rate was £700 per hour and that Mr Tooth had produced detailed notes and a structured analysis.

However, witnesses from Sears Tooth said this

Laura Broomhall and Kelly Edwards say the following, which is of some relevance. They were the only two solicitors working for Mr Tooth on 30 November. They have no recollection of any meeting. Laura Broomhall has no recall of OE’S face. Ms Broomhall undertook a conflict search and consulted her attendance notes and diary for 30 November and found no records. Kelly Edwards has no notes or record in her diary, or attendances for 30 November. Ms Edwards met the mother in March 2016 and was not prompted to recall the case by that meeting.

39. Both Ms Broomhall and Ms Edwards say Mr Tooth has never charged £700 an hour. Ms Broomhall says she has no Eastern European connection, Kelly Edwards likewise. Laura Broomhall says that she would take a full note and Raymond Tooth a short note. Kelly Edwards says Raymond Tooth’s notes were far from structured; the assistant would take a detailed note, Raymond Tooth would write a few keywords no one could read. Ms Broomhall says Raymond Tooth has never behaved in the way OE suggests. Kelly Edwards agrees that he does not behave in that way.

Hmmmm.

Judicial findings
Analysis and Conclusions.
40. Issue 1: can the husband prove a meeting took place between Raymond Tooth and OE on 30 November? On balance, yes, I believe there was a meeting of sorts between Raymond Tooth and another member of his staff and OE on that day. The following matters demonstrate this: the appointment in Raymond Tooth’s diary that was put there by him following some contact by OE and not crossed out, a telephone message from some point in the afternoon by OE in which he gave his number, the Google search for the premises of Sears Tooth — I do not consider the time differences to be of any particular significance to OE’S credibility, they may arise from the use of different time zones on his devices — OE’S recollection of the interior of the premises (the piece of artwork, the obtaining of a card and the layout of the conference room) and the combination of OE’S own evidence and Mr Tooth’s evidence persuade me that an appointment was booked and that OE attended for it and some form of meeting took place.

41. The second and third issues: if a meeting did take place, can the husband prove any confidential or privileged material was communicated to Raymond Tooth and his assistant and can the husband prove that such material is or may be relevant to the current dispute or contemplated dispute.

42. Although Mr Marshall QC is right to say that the burden is not a heavy one, it must of course be context specific and be viewed in the light of all the evidence and all the circumstances. I consider the following factors to be significant in determining what is more likely to have occurred at this meeting. Inevitably I cannot refer to every matter that I have considered.

43. In order really to determine these issues as the husband seeks, I must be able to rely on OE’S evidence, together with any independent corroboration. Unfortunately overall I conclude that OE’S evidence is in many ways unreliable.

44. He produced no briefing note setting out the main facts or the principal issues he wanted to deal with, which is a little surprising and suggests someone not very committed to record-keeping or someone not placing much importance on the meeting.

45. He said the meetings were arranged to see a lawyer who would be a good fit for the husband, although he was not sure that he had any exposure to litigation at that time. It seems from the chronology that the overall picture that emerges is this was all part of long-term planning by the husband for possible future litigation in England. If there was something on the horizon though, at the particular time it seems to have been more related to the situation of the children than the divorce, which from the husband’s point of view was done and dusted nine years before. Those circumstances do not suggest that in initial meetings there would be detailed disclosure of confidential information as opposed to some general discussions about the approach of the lawyer and general discussions of jurisdiction.

46. OE did not disclose, in either his statement or in his oral evidence, that in fact he or the husband had seen HFC on 21 October and, more importantly, that the husband had signed a retainer letter with HFC on 23 November, a week before the meetings. As the husband’s representative for these purposes in London, it is inconceivable that OE was not aware of this and indeed more likely than not that he had made the recommendation to the husband to instruct HFC following the meeting they had had on 17 November. Although Mr Marshall QC says that OE could still have been looking for a better fitting lawyer than HFC, I have to say I consider that improbable. If he was, why not say so in his statement, that he retained them for the interim whilst he continued the search? Given it is now known that there were two meetings with HFC, including a second one with the husband’s Russian lawyer, I am not prepared to accept this explanation. I am satisfied that the husband selected HFC because he thought they were the best fit. Indeed he remains with them now, over two years after his initial meeting.

47. That fact inevitably affects the analysis of the later meetings. Perhaps they were arranged in advance of 23 November, I have no evidence on when they were booked, and perhaps OE went through with them just to double check his selection of HFC. I consider it more likely than not though that by this stage there was also an element of ejecting those solicitors out of the pool of lawyers who the wife might consult.

[Yeah, that’s my view too….]

48. Turning to some of the evidence about the meeting itself. OE said in his statement at paragraph 5 that his earlier meetings overran, that is his earlier meetings with the firms Mischon de Reya and Stewarts Law. This was not his account in evidence, which put the Stewarts meeting finishing at 1.30 to 2 pm. He dealt with his arrival in both his statements and in neither did he say anything about a gap between the solicitors’ meetings.

49. I thought his account of his movements that day seemed to be made up on the spur of the moment, in particular his trip to the hairdressers after his meeting with Stewarts in Fetter Lane and before his attendance at Sears Tooth. That seemed to me to arise from his realisation that in his evidence he had created a window of time that was inconsistent with his earlier account. Why he would call Sears Tooth to say that he was running late is hard to fathom when on his own account he was not. The haircut story seemed to mirror the new explanation he had given slightly earlier in his evidence of having a manicure to fill the gap between the end of his Sears Tooth meeting and the time on the attendance note.

50. I got the overall impression that despite saying on a number of occasions that he had a clear recollection of the meeting, that actually his recollection was not clear at all. The most obvious example was that he clearly and firmly, but erroneously, asserted that Natasha Slabas was present at the meeting. I think he had simply looked at the Sears Tooth website and identified someone he thought had attended and then embellished his account by making reference to that person having an Eastern European connection.

51. The what I have termed an attendance note at B19 could be capable of corroborating his account, in particular if I was satisfied it was both contemporaneous and accurate. The timing on it at C10 puts it at either 6.02 pm or 7.02 pm GMT. OE said this time may be when it was last amended, but it tells me nothing about when it was started, nor does it, or he, tell me what the amendments were to it. It could be as much some aide memoire, put together after all the meetings concluded with some points he wanted to relay to the husband, as anything else. Curiously the meeting with Raymond Tooth comes second in his note before the single entry for what he said arose from his prior meeting with Stewarts. If these were truly contemporaneous notes that seems odd. Given my general concerns about how reliable and accurate a historian OE is, I cannot even determine whether what he ascribes to Raymond Tooth is accurately ascribed. It could have come from any of the meetings, or indeed nowhere, as the presence of Ms Slabas did.

52. OE’s notes of the meeting are so short as to suggest almost nothing about the content. They do not identify who the other meetings were with, for instance. He said his notes of the meetings on 17 November were much more extensive.

53. Perhaps HFC were indeed selected then whilst OE and the other lawyer, TB, were both present. It would make sense that the selection was made with the input of the husband’s Russian lawyer present. That suggests that these later meetings were indeed subsidiary and what took place was, relatively speaking, unimportant.

54. Even if OE is right in what he ascribes to Mr Tooth, it gives no clear insight into what might have been discussed. Why would a bulletproof jurisdiction be of relevance to the husband? He had his divorce and was not contemplating further divorce jurisdiction. It might be of interest on the children, I suppose, in determining habitual residence and the ability to bring proceedings in England. What does the comment “no generous deed” tell me? It could relate to the wife and children living in England, it might relate to maintenance. But even if OE had said the husband had paid the wife large sums, how could that be confidential?

55. OE gave no evidential context to the comments and what information they related to, it was really speculation as to what they might have related to rather than anything concrete. They could have been phrases conjured from nothing. Given that on balance I do not feel able to rely on the attribution of those comments, it may not matter too much what they actually mean, but it all adds into a very unclear and unreliable picture.

56. OE’S account of the length of the meeting and whether it commenced on time has varied quite significantly from the correspondence to his statements. Whilst this may be relatively minor, in itself it supports a poor not a good recollection. OE is clearly not a person who keeps accurate records, or indeed very many records at all perhaps.

57. His assertion about Raymond Tooth’s strategic notes with a strategic map seems inconsistent with what is said about Raymond Tooth. It is also different to what he said in his statement where he described Raymond Tooth writing well-structured notes. In the letter of 9 March it was said that OE saw Ms Slabas taking notes in the meeting. In his statement he said, “I can’t be sure she took any notes although my recollection is she did”.

58. Neither Kelly Edwards nor Laura Broomhall recall the meeting and the evidence is it was usually one of those who was present.

59. The £700 per hour charging rate figure comes from nowhere. The other solicitors say he has never charged this or said he would. Mr Marshall QC said it might be the figure including VAT. I am not sure whether the husband would be eligible to pay VAT or not where he is resident.

60. Sears Tooth have retained no records at all. There is no copy identification, which OE did not mention providing in his first statement but referred to in evidence: “I may have given him a passport copy of the client”. There is no dictated or handwritten file notes, no bill. Mr Tooth described the process of making up a file and how it would be retained.

61. Much of what OE said about Mr Tooth’s attitude could derive simply from his public image. It is not consistent with what Mr Tooth or his assistants say about his attitude with clients, it is more caricature that a person who has not known him as a client might have.

62. OE says he has no notes or feedback or summary in written form about the firms which he provided to the husband. He said he had a telephone call with him. He said, “I did a verbal report, I read them out to him”, but he did not say why he had recommended HFC.

63. He also said at one point that he had the other appointments confirmed in his laptop, but he had not confirmed the one with Sears Tooth. I am not sure whether he was simply saying that he had not got email confirmation in that respect.

64. The evidence overall of Mr Tooth of the requirement for passport identification to be brought, of how files are made up with the handwritten and dictated notes and their storage is consistent with a brief and non-specific meeting at which little, probably not even the name of the principal, was disclosed. I very much doubt that the husband would want detailed disclosure of highly confidential information to a significant number of firms, in particular I doubt it would be authorised after he had retained his first choice firm. I very much doubt that OE was given free rein to disclose the husband’s highly sensitive financial and other dealings. Anything he was authorised to disclose would have been carefully vetted, particularly at this stage. The absence of a briefing note suggests to me that not much would have been disclosed.

65. The clear impression of strategising and manoeuvring emerges from the judgment of Mr Justice Peter Jackson, all designed to further the husband’s goals, often involving the deception of the wife and designed to strengthen the husband’s position in any future litigation and weaken the wife’s. The timing of the meetings with the six firms fits in with the later manoeuvring over the children being put in touch with lawyers early in 2016. The way the situation with the children was created suggests very careful planning and manoeuvring by the husband. The failure to be frank about the meetings with HFC mirrors the incomplete disclosure about the involvement with Dawson Cornwall in the children’s case.

66. I am led to conclude that the meetings with at least some of the six firms, probably all of those seen on 30 November; given the first three seen on the 17th or earlier clearly involved more serious consideration by OE and the Russian lawyer, the later ones were at least in part motivated not by a genuine consultation but a conflicting exercise.

67. I cannot conclude the whole process was. Indeed if it had been there are some other obvious names that would have been seen. Indeed, even by 30 November there may still have been some lingering or vestigial genuine reason for completing the survey of firms, but by 3 o’clock on 30 November 2017 I am satisfied that OE was not seriously considering instructing Sears Tooth and this undoubtedly influenced the nature of the meeting and the information given.

68. It is probably self-evident by now that I thought that OE was rather blasé about the need for accuracy in matters evidential. He seemed very relaxed about the fact that he had got it wrong about Natasha Slabas. He later said in his evidence he did not think it mattered much about being accurate. He said he was unaware of the need to be 100 per cent careful. I think that attitude generally infects his evidence. He is rather casual about details and seemed quite prepared to elaborate to suit the point he is trying to sell. I do not believe I can rely on the accuracy of his account.

69. Of course there are aspects of it which are true. There are aspects which are patently false. The latter does not mean the rest is false. The former does not mean the rest is true. He has of course a potential motive to exaggerate or fabricate because part of the purpose in seeing Sears Tooth may have been to conflict them out. In any event, his boss certainly did not want Sears Tooth acting and so as his head of his family office he has an obvious motive to do his boss’ bidding. The failure to disclose the earlier instruction of HFC and their retention simply adds to the picture of OE as being a witness who cannot be relied upon. To maintain he saw Sears Tooth with a genuine intent to consider instructions when he knew HFC had been retained and not to disclose that shows a lamentable attitude to the affirmation that he took to tell the truth, the whole truth and nothing but the truth. In saying what I have about OE I do not believe it was done with anything other than the Husband’s approval – this was not an agent going rogue but an agent doing his master’s bidding.

70. Overall Mr Tooth I conclude was the better witness. He conceded points which supported the meeting likely having taken place. He remains adamant he cannot recall anything about the meeting, which would be consistent with a short but uninformative meeting. I find it hard to ascertain why Mr Tooth would say he could not recall it if he could and why he would not have declined to act. As a solicitor with 50 years’ practice and with the reputation he has, what is one client more or less, why risk your reputation, indeed potentially more, if he was found to have misled the Court over the matter?

71. On the balance of probabilities, I do not find that any confidential material was imparted to Raymond Tooth or that any privileged information or advice arises. On balance I do not accept that the meeting was anything like that described by OE. I conclude that it was a very brief meeting which perhaps OE was attending to complete the job of going around the firms he had been instructed to with the parallel intention to conflict them. Whilst I cannot determine precisely, or even fairly closely, what was said and how the meeting developed, I conclude at most it may have been more in the nature of a brief and theoretical discussion, rather than the detailed, fact heavy, assets discussed, advice heavy meeting that OE seeks to portray. Mr Tooth described how some meetings were more general, about the law and how his position might depend on how the client put matters to him. It might of course have been far less than that, a perfunctory and very brief meeting which contained nothing of substance.

72. That being my conclusion on issues 2 and 3, I do not need to go on to consider issue 4, whether there is any risk of disclosure, nor do I need to consider my discretion in relation to whether an injunction should be granted or not. The application for an injunction is dismissed.

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Fraud unravels everything – Rapisarda v Colladon part 2

Posted on October 7, 2014 by suesspiciousminds

 

 

 

 

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)

 

 

http://www.judiciary.gov.uk/wp-content/uploads/2014/09/rapisarda-v-colladon-italy.pdf

 

I wrote about part one here https://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) [1997] 1 FLR 59.

 

the well-known words of Denning LJ in Lazarus Estates Ltd v Beasley [1956] 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.”

 

Wow.

 

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 div@fredericarusso.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 div@fredericarusso.com 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 [2009] EWHC 988 (Fam), [2009] 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) [2002] IDS Pensions Law Reports 219 and Kearly v Kearly [2009] EWC 1876 (Fam), [2010] 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 [2014] 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.

 

 

 

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Goes together like a horse and carriage?

Posted on November 20, 2012 by suesspiciousminds

 Warning, this blog post contains references to both Cricket, and Pretty Woman, and thus is about as divisive as things can get.

I believe the Venn diagram of people who like both is two circles miles apart.   [The Venn diagram of people who like Cricket, Pretty Woman and maths is three circles four thousand miles apart, and me saying “what? What’s not to like?”]

I have been kindly pointed towards the report prepared by the Marriage Foundation, about marriage.  (by the co-author of the report, Rehna Azim, of 42 Bedford Row.   Rehna is an excellent barrister, and a damn fine specimen of humanity, so I hope that I can be impartial when discussing the report. I’ve put the possible bias up front, so you know)

I am going to be a bit curmudgeonly about the research, because I am The Grinch. None of my winges stop the issues the report raises being interesting.  And there is more to it than the Press reports, so I urge you to read it for yourself. It is fairly short, and there is a great deal of elegance and thought in it.

The report has hit a lot of the mainstream Press, because of its analysis about the media perception of marriage and the lack of longevity of the ‘fairytale’ celebrity marriages that fill so much newsprint at present.

 [And the mainstream Press take on it seems to be  ‘Celebrities, you suck, you are rubbish!”   – here’s some photographs of Emma Watson.   If you have some time by the way, Private Eye do a very good ongoing feature comparing the Daily Mail public take on paedophiles with the very unsavoury way that they describe 14 and 15 year old female celebrities  “looking all grown up”]

I suspect that there’s more to the report than the soundbites, so I will take a closer look.

If you’re going to do a soundbite this one from Coleridge LJ is top, top stuff.

He broadly says, don’t compare marriage to fairytales and Hello magazines portrayal of love and romance, and instead compare it to a Test Match.

‘Most of the time not very much happens,’ he said. ‘The beauty of the match is that it is played out over a long time and at the end there have been ebbs and flows, happy times and sad, exciting times and more mundane times, all going to make up the whole memorable experience.’

 I wish I’d written that. It has something of the Master, PG Wodehouse about it. 

 Anyway, here is the report

http://www.marriagefoundation.org.uk/Web/OnlineStore/Product.aspx?ID=138&RedirectUrl=~%2fWeb%2fOnlineStore%2fProducts.aspx 

You have to download it, but it was free, and pretty instant.  [The author of the blog takes no responsibility for any harm that might befall you from downloading stuff on the internet.]

The headline of the research is obviously that tracking the rate of divorce amongst celebrities over a 20 year period, it is about twice that of what Liz Hurley once described as  ‘civilians’

The authors suggest that

 Despite all the comforts and advantages of fame and wealth, these celebrities divorce at twice the rate of the UK population. After ten years of marriage, the divorce rate for celebrities is 40%, compared to 20% for the rest of us.

 

If the statistics are robust, that is a shocking figure.

My initial thought here is that it is pretty hard to strip one of the essential factors of modern celebrity out of the equation – the average celebrity is, by the nature of modern celebrity, more physically attractive than the average person in the street, and therefore superficially more able than the average person in the street to be able to attract another partner should their relationship end.

Of course, there’s far more to life than just basic physical attractiveness, and I don’t suggest that celebrities are superior beings to anyone else.

But, if Brad Pitt is weighing up whether to leave Angelina, he probably spends less time worrying about whether he will ever meet anyone else or whether he will die alone as a mad lonely cat-guy than Terry from Stoke might, in a similar position.

Another possibly influential factor from celebrity is the entourage – we just don’t know how being surrounded by people whose job is to massage your ego and tell you that you are great really prepares you for another human being telling you that you can’t watch the football because I’m a Celebrity is on.

[Or indeed whether there’s a Yoko-Ono effect, with that entourage or crowd of hangers-on, not terribly wanting the marriage to work]

The other problem with the research, from a geeky scientific point of view, is that given that celebrities don’t always marry someone as equally famous and publicly desirable  as them  (for every Richard Burton and Liz Taylor there are ten Britney and K-Fed or Julia Roberts and Lyle Lovett)  and thus it is not entirely unpredictable or unexpected that scales might fall from the eyes of the party with greater social cachet that they could ‘trade up’

You might need to have some stats on

Divorce rates of people who are subjectively in the top ten per cent of average attractiveness

And

Divorce rates of people who have married someone who would appear at face value to be in a different quantum of subjective physical attractiveness/and or success to them

Both of which would be insanely hard, if not impossible to gather.  But without them, I’m not certain from a statistical point of view that you’re measuring “celebrity” versus “non-celebrity” so much as the other factors that go alongside celebrity.

Also, continuing to be a bit Ben Goldacre-y – if you measure fluctuations in a relatively small population, it may be that things appear more statistically significant than they actually are.

For example, from the small pool here, I can diagnose that marrying a celebrity golfer has at least a 50% chance of heartbreak, whereas marrying a celebrity tennis player will result in marital harmony.  There’s just not enough data to draw those conclusions, but from what there is, I could legitimately form that impression.   [I also note that a few of the couples on the ‘still married’ list are… how shall I say this?  Well, one of the husband’s is Vernon Kaye and another is Ryan Giggs]

The thrust of the report, that we may as a society, have become fixated on the ‘whirlwind romance’ and an expectation of non-stop romance and drama and that the wedding day has to be spectacular, and as a result, the actuality of romance once all the hormones have subsided a bit, is less roller-coastery and more Test-Matchy.   And that peeking behind the curtains at these ‘fairytale romances’ perhaps they are not actually all that fairytale – it appears that their unhappy endings come around a bit more often than everyone elses.

There is also a more interesting, to me at least, angle which has not made it to the mainstream media reports. It is the extent to which the mainstream media reports of celebrity marriages actually has its fingerprints on the break-ups.

The trajectory of the tabloid money-spinner goes something like this: celebrity couple meet, announce the pregnancy, announce the engagement, split before the wedding, ‘open their heart’ about the agonising breakup to the tabloid in return for a cover story and eight page inside spread and then start all over again with a new partner before you can say ‘commitment’.

 

The tabloids love nothing better than a good ‘celeb’ wedding. The build-up to the special day and the nuptials themselves are big sellers. It’s just the ‘happy ever after’ that makes tabloid eyes glaze over. It’s so, well, boring.

 

They appear to have an aversion to famous people remaining in long-term relationships, particularly marriages. They prefer, instead, the six month, (maximum one-year) headline grabbing celebrity relationship.

 

An American tabloid recently ran a story claiming that the one-year marriage of Prince William and Kate Middleton was ‘on the rocks’. As ever, the magazine relied on information from the ubiquitous ‘a source.’ The latter is a prolific contributor to tabloid stories about the famous. He seems to have unprecedented access to the most private moments of celebrities

and is trusted by them to remain in the inner circle despite it being obvious that he has betrayed that trust.

 

The main message of ‘the source’ is usually that monogamy and marriage are boring

 

Mrs Suesspicious Minds sometimes reads a magazine called Grazia, and this magazine has been, to my eyes, waging an outright war on Angelina Jolie for about three years, trying to engineer a breakup of her relationship with Brad Pitt and for some unearthly and inexplicable  reason a reconciliation between Brad and Jennifer Aniston. 

Almost every article is based on non-attributed quotes from ‘a close source’ or ‘a close friend’  every one of which reads to me as being utter… well, fabrication is such an ugly word  – let me instead say ‘marvellous fortuitious insights that overlap entirely with the magazine’s editorial view of the story’.

I could, of course, be utterly wrong, and that Brad and Angelina do have close friends who routinely rat them out to the Press about the most intimate details of their life and yet who remain close friends trusted with their innermost confidences. I could of course, be utterly wrong and this is merely my own minor and personal opinion. The magazine is extremely sound on handbags I am told, to give these scurrilous and inaccurate opinions of mine some balance.

I thought that aspect of the report was probably more interesting and useful –  the suggestion that the mainstream media (and to an extent society) is happy to revel in the thrill of the chase and the seduction, but finds the actual bit of love (the give and take, the getting to know someone, the day to day life) bit boring, and is metaphorically reaching for the Sky-Plus remote to fast forward through to some good bits (sex, arguments, sex with someone else, discovery, break-up!)

After all, every single rom-com ends with the kiss, or at most the wedding, and the “happy ever after” bit is glossed over.

Because, frankly, the tiny little acts of caring and kindness that make a relationship work are not that exciting to watch or read about, compared to climbing up a fire escape in Los Angeles and telling the hooker that you bought and paid for that you love her after all….

On re-reading this, I’m even more The Grinch than I thought I was. For all of my grumbling about whether the statistics tell us as much as the authors think, I think that the report says a lot of things that are worthy of a proper public debate, and it says them well.

[I think the report is accompanied very well by the recent-ish episode of South Park on the issues of celebrity sex addiction, posing the question  “just why is it that men who are rich and powerful choose to have sex with a variety of different partners rather than remaining faithful?” and answering it “because of alien toxins spread on banknotes which cause the sex addiction illness” . Obviously.]

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