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Assoun v Assoun [No 2] [2017] EWCA Civ 179

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Husband's application for permission to re-open an appeal against the making of a Hadkinson order on the basis that the court was relying on mistaken factual material in coming to its conclusions. The application was refused.

  • Case No: B6/2015/4082

    Neutral Citation Number: [2017] EWCA Civ 179

    IN THE COURT OF APPEAL (CIVIL DIVISION)

    ON APPEAL FROM THE CENTRAL FAMILY COURT IN lONDON

    His Honour Judge Brasse

    FD06D05405

    Royal Courts of Justice

    Strand, London, WC2A 2LL

    Date: 28/03/2017

    Before:

    LORD JUSTICE BEATSON

    THE SENIOR PRESIDENT OF TRIBUNALS

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    Between:

    Yan Wilheim Benjammin Assoun (Appellant)

    - and -

    Anais Amber Assoun [No 2] (Respondent)

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    - - - - - - - - - - - - - - - - - - - - -

    Mr James Ewins QC (instructed by Stewarts Law LLP) for the Appellant

    Mr Alexander Thorpe (acting Pro Bono) for the Respondent

    - - - - - - - - - - - - - - - - - - - - -

    Judgment

    ASSOUN v ASSOUN [No 2]

    1. On 25 January 2017 the Court was listed to hand down judgment in the appeal by Mr Assoun ('the husband') against the making of a Hadkinson order by His Honour Judge Brasse on 16 November 2015. That appeal has now been dismissed and the judgment in it is simultaneously published with this decision and is reported as Assoun v Assoun (No 1) (Hadkinson Application) [2017] EWCA Civ 21. The background circumstances and issues are described in that judgment which is incorporated into these reasons.

    2. After the judgment had been circulated but before the date on which it was to be handed down, the husband sought permission to re-open the appeal before judgment was entered, to amend his grounds of appeal and to rely upon further evidence. The wife opposed that application and we gave directions adjourning the substantive appeal and granting permission to the parties to file further written submissions on the basis of a process that would have led either to a further hearing on the adjourned appeal if the husband had been successful in his application or to an oral hearing of his application if the husband had satisfied the court that there was an arguable case in respect of one or more of the bases for the same. The husband's position was formalised by an application notice dated 8 February 2017.

    3. In the event, for the reasons which follow, the court is not satisfied that there is any basis for the husband's application. It is accordingly dismissed with the consequence that there is no necessity for a further hearing in the substantive appeal or in respect of the husband's application.

    4. The husband in his written submissions sought to demonstrate the following:

    a. That the court was relying on mistaken factual material in coming to its conclusions;

    b. That the court's analysis of the Hadkinson principles in the context of the facts would be erroneous if based upon mistakes as to fact;

    c. That the court's analysis of the husband's financial disclosure would likewise be wrong with the consequence that its conclusions as to the procedural regularity of the process and its own procedural integrity would be flawed;

    d. That the court's construction of the intention and/or effect of the order of Gloster LJ of 19 May 2016 was wrong;

    e. That there was a breach of natural justice.

    5. It should be recollected that in Assoun (No 1) the court stated (at [11]) that it is not satisfied that its own conditions imposed upon the grant of permission to appeal have been satisfied by the husband and that the court decided to hear the appeal de bene esse in order to ensure that there had been no breach of any principle of natural justice by procedural irregularity or otherwise. Scrutinising the process to ensure that the error complained about above had not occurred had accordingly been at the forefront of the court's mind during the appeal.

    6. The wife in her written submissions in response took the court to the documents in the court bundle that were scrutinised during the appeal hearing. She demonstrated that the factual conclusions of Judge Brasse in the Hadkinson proceedings were based on his earlier conclusions in the substantive first instance proceedings, which have not been successfully appealed, and were materials to which the judge was entitled to have regard. She also demonstrated that this court was referred to those materials in the appeal hearing. She submitted that as a consequence this court was not mistaken in coming to the conclusion that Judge Brasse did not make an error of fact: we agree.

    7. The issue between the parties that most clearly evidences their disagreement about the facts is the allocation as between spousal maintenance and costs (ie the legal services order) of the two payments made by the husband amounting in total to $324,000. It was that which led the husband to submit that the draft judgment in Assoun (No 1) showed that the factual basis upon which the court came to its conclusions was mistaken. In so far as it is necessary for this court to consider the question now raised, it is dealt with in Assoun (No 1) at [21] to [23], inclusive, which have been amended to reflect matters canvassed at the appeal hearing which were not expressly stated in the draft judgment previously circulated. The question as to allocation was settled by the Texas court for the purposes of its own enforcement. The husband chose not to make the Texas decision an issue in the appeal, indeed he did not disclose it until after the appeal hearing. It is adverse to him. There is no basis for this court to interfere. The consequence is that this court was not mistaken as to the facts.

    8. If this court's scrutiny of the facts found by Judge Brasse is not mistaken, then the premis upon which the husband seeks to re-open the appeal is flawed. There is no basis upon which the husband can ask this court to conduct a further analysis of the application of the Hadkinson principles by Judge Brasse.

    9. The husband complains that the court's analysis of his financial disclosure is wrong. He cannot complain about the analysis of his evidence by this court or this court's interpretation of what we regarded as the obvious purpose and intention behind the order of Gloster LJ of 19 May 2016 which led to that evidence being filed. Those complaints would be appeal issues from this court. For the avoidance of doubt and in any event, there is no new material that provides any basis for coming to a different conclusion. Given that there is no new factual basis upon which to conduct the analysis, we decline to re-consider it.

    10. Whatever the position may have been had this court not had the benefit of the financial evidence filed by the husband in accordance with the order of Gloster LJ of 19 May 2016, as a consequence of that evidence being filed this court was able to ensure that the husband's case was afforded the level of scrutiny that he submitted was necessary in the context of a Hadkinson application. The husband has now had the opportunity to file full and frank disclosure of his financial means and the court has considered it. In so far as he now submits that there is more evidence that he chose not to disclose, that only serves to underline this court's conclusion about the lack of completeness of that which was filed in accordance with the order of Gloster LJ.

    11. On any basis, the hearing before this court has provided the opportunity for scrutiny, for full and frank disclosure and for the opportunity to respond to any issues about which the parties disagree, which we have concluded is sufficient for there to be a conclusion on a Hadkinson application. Any criticism of the process undertaken by Judge Brasse has been addressed by this court. We conclude that Judge Brasse was not wrong. For these reasons, there is no basis to re-open the appeal and permit the husband to amend his grounds and/or adduce further evidence. The application is refused.

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Published: 28/03/2017

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