Divorce order set aside after ‘procedurally unfair’ mistakes

The Court of Appeal has overturned remedy orders in a divorce case after finding a string of procedural errors with how the matter was handled.

Sir Ernest Ryder, senior president of tribunals, said the husband in the case missed out on ‘elementary procedural protections’ he had a right to expect, as financial orders were made against him without a chance to respond.

After a final hearing in March 2015, His Honour Judge Brasse had ordered the husband in Iqbal v Iqbal to pay his ex-wife a lump sum of £3.22m within five weeks, arrears of periodical payments of £530,000 and future periodical payments of £10,000 per month in advance by standing order.

Ryder said the key issues on the facts at the interim and final hearings were whether the husband had the ability to make the payments. The husband challenged the outcome of those hearings on the basis of the nature and extent of the direct evidence and the inferences drawn.

The court heard the husband had been excused attendance at an interim hearing in 2010 and had filed his evidence in accordance with the court’s directions.

The wife attended court for that hearing and made submissions based on a signed letter that she relied upon that had no statement of truth on its face. She was not sworn to give evidence but made submissions about the husband about which he had no advance notice.

Ryder said the consequence of this was that the final hearing was ‘procedurally unfair’ and the order made at the end of it must be set aside.

The judge said: ‘Had the court made directions to abide the event of the husband’s continuing absence, they could and should have included a warning that inferences of fact might be drawn from his absence.

‘That would have anticipated any deliberate or tactical absence and set the scene for the court to act proportionately: ie to undertake the final hearing in his absence without adjournment and drawing such inferences as might be reasonable.

‘No real attempt at active case management by reference to the Family Procedure Rules and Practice Directions was attempted. It is hardly surprising, therefore, that good practice was not a feature of the management of this case.’

Even where the court had made one attempt at case management, asking the wife to file a statement, it was filed only eight days before the final hearing and not served on the husband. She had no leave to rely on it out of time.

Ryder said the judge in the final hearing had made no reference to the husband’s documents during the hearing, with no analysis made of them.

He said the judge had failed to give a formal judgment with the consequence that the appeal court had to analyse the transcript to establish for his conclusions.

‘In this case it is not possible to deduce what findings of fact were made by the court and what evidence was accepted or rejected in that process,’ said Ryder. ‘There are major questions that are unexplained and which needed determination.

‘Given the importance of ascertaining the wife’s needs in the context of pre-marital assets, and both parties needs having regard to the responsibilities they each have for the [three] children, the absence of any analysis of the parties’ needs and the husband’s ability to make the payments ordered was a fatal absence of reasoning on the facts of this case.’

All financial remedy orders were set aside and Ryder directed that the application for an order be re-heard by a specialist family judge at the Central Family Court.

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Divorce order set aside after ‘procedurally unfair’ mistakes