Nicholas Cusworth QC and Justin Warshaw (instructed by Sears Tooth ) for the wife; James Turner QC and Deepak Nagpal (instructed by Pinsent Masons LLP ) for the husband.
In April 2012 Richard Anelay QC, sitting as a deputy judge of the High Court, gave the wife leave to “activate” an application for a financial remedy pursuant to Part III of the Matrimonial and Family Proceedings Act 1984, purportedly issued in 2002. The Court of Appeal allowed the husband’s appeal against that decision [2013] Fam 267 on the sole ground that a marriage which did not purport to be performed under the Marriage Acts was not a void marriage within section 11 of the Matrimonial Causes Act 1973, and therefore not a marriage within the meaning of Part III of the Matrimonial and Family Proceedings Act 1984 so that there had been no jurisdiction in Part III proceedings following the parties’ foreign divorce. As a result of that decision, the wife commenced proceedings in December 2012 for orders to provide monetary compensation for breach of, or to otherwise enforce, the husband’s undertakings recorded in an order made by Kirkwood J in 2002, which governed the financial arrangements between the parties, and which in itself had been the foundation for the Part III claim. The jurisdictional basis of that application was in dispute. The husband submitted that the Court of Appeal’s order had overturned the deputy judge’s order, including his findings of fact, in its entirety, since that determination had been made in proceedings which had lacked jurisdictional basis. On a preliminary issue the wife accepted, on authority, that she could not rely on issue estoppel. The husband applied for his costs of the determination of the estoppel argument.
Since the enforcement proceedings were not being considered per se, there was no need to decide whether the wife’s proceedings were properly to be regarded as solely or mainly civil proceedings to which the whole of CPR Pt 44 applied. The proposition advanced by the husband had been based on established authority and was unanswerable. It was not relevant to the issue of costs that neither party had put before the court earlier the authority which had demonstrated that those arguments were correct, nor did it matter that the findings had been made in the Part III claim, rather than in the proceedings in which the undertakings had been given. The husband had had to expend money to meet an unarguable point and it was for that reason that the wife had to pay the costs of that part of the exercise which on detailed assessment was properly referable to the discrete argument, on the standard basis (paras 29, 31–34).
There were a number of reasons for taking the view that to rely on the deputy judge’s findings would not have assisted the court to reach a just determination, inter alia: (i) It had been conceded that the findings did not address all the issues, nor had they been decided with complete precision: see New Brunswick Ry Co v British & French Trust Corpn Ltd [1939] AC 1. (ii) The findings were historical and the wife had raised many new issues so that the court would have to start again in order to put the entirety of the evidence into context. (iii) it was highly unlikely that a court could conclude that those specific findings could lead of themselves to the conclusion that the remainder of the wife’s other assertions were necessarily established. (iv) Even though it was the husband’s fault that he had not attended the hearing, findings made on limited perusal of the papers, and a one-sided presentation, were not of the same quality and weight as a determination reached after a full trial. Therefore the court would have had solid grounds to revisit the deputy judge’s findings in the context of the wife’s present application, and it would have been permissible to do so (paras 37, 40).