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Whittingham v Whittingham [2017] EWHC 3318 (Fam)

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In these long running and costly financial provision proceedings, the husband's appeal against an interim order pending appeal which refused to discharge the receiver was dismissed.

  • This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

    Case No: 2017/0137 BS11D01036

    Neutral Citation Number: [2017] EWHC 3318 (Fam)

    IN THE HIGH COURT OF JUSTICE

    FAMILY DIVISION

    ON APPEAL FROM THE FAMILY COURT AT BRISTOL

    IN THE MATTER OF THE MATRIMONIAL CAUSES ACT 1973

    Royal Courts of Justice

    Strand, London, WC2A 2LL

    Date: 06/11/2017

    Before:

    MS JUSTICE RUSSELL

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    Between:

    ALEXANDER JOHN WHITTINGHAM (Applicant)

    - and -

    VANESSA RUTH WHITTINGHAM (Respondent)

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

    Mr Matthew Brunsdon-Tully (instructed by Clarke Willmot LLP) for the Applicant

    Mr Nicholas Sproull (instructed by Simpson Millar LLP) for the Respondent

    Hearing date: 24/10/2017

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

    Judgment

    The Honourable Ms Justice Russell DBE:

    Introduction

    1. This is an application for permission to appeal by the Applicant/husband (the Applicant) from a decision of a circuit judge of the Family Court sitting in Bristol. In brief, and on any analysis, these are costly, protracted and highly contentious proceeding following the parties divorce on 9th August 2013. The parties are both successful in the same area of work training pilots; to add to the antagonism which forms the backdrop to the divorce they are now in competition with each other commercially. The litigation in respect of financial relief and distribution of the assets has been the subject of litigation in the Chancery Division as well as before the Family Court. The costs have been substantial.

    Background to this application

    2. This application is made pending a full appeal against the order of a District Judge made in the Family Court in Bristol on 22nd March 2017 to the Circuit Judge, which, inter alia, included at paragraph 4 a refusal to discharge the receivership. The Applicant appeals against an interim order pending appeal made by the Circuit Judge on 14th August 2017 which granted a stay of the order of 22nd March 2017, but refusing to discharge the receiver. The Applicant now seeks to appeal that part of the order of 14th August 2017.

    3. Following a final order in Financial Relief Proceedings made on 26th March 2015 applications for enforcement were issued on 18th November 2015. The receiver had first been appointed by the court on 18th May 2016 during these enforcement proceedings brought by the Respondent/wife (the Respondent) along with an application by the Applicant to vary the timing of payment of lump sums and an application by the respondent to compel the Applicant to pay outgoings from a property in France (the French property) which formed part of the matrimonial assets. The Applicant appealed against the order appointing the receiver and the hearing took place before a circuit judge on 10th October 2016. The appeal was refused and the Applicant was ordered to pay the Respondent's costs by an order of His Honour Judge Wildblood QC dated 10th October 2017.

    4. This order was not appealed. The reasons for the refusal in respect of the appointment of the receiver were set at paragraphs 55 to 75 and considers the law, the case of Maughan v Wilmott and the application of Part 69 of the CPR 1998 which (by virtue of r33.1 of the FPR 2010) applies to the appointment of a receiver in made in the Family Court. It is worthy of note that most of the argument put forward by the applicant in his appeal in October 2016 was repeated before this court on 24th October 2017 before me. Since then the Applicant, it is fair to say, has been assiduous in his attempts to have the receiver discharged.

    5. Under the terms of the order of 18th May 2017 appointing the Receiver, the receivership was due to be a subject of a review hearing on the first available date after 26th September 2017. The review did not take place because of the intervening appeal by the Applicant. Following the refusal of his appeal before the Circuit Judge the review of progress of the receivership was listed to take place on 22nd March 2017 at the review hearing. The Applicant applied for a suspension of the receivership by an application dated the 3rd January 2017 which was heard by a District Judge on 9th January 2017; the applications were to be considered at the review hearing and directions given (which are not necessary to set out for the purpose of this judgment) including service of the order on the receiver.

    6. On the 22nd March 2017 the review hearing took place before District Judge Corrigan who heard the oral evidence of the receiver. The Applicant's application for discharge of the receivership was refused. The limit on the receiver's remuneration was increased to £40,000. Directions were given including that the Receiver file an updating report on 24th October 2017. The District Judge refused permission to appeal.

    7. The appeal was due to be heard on 11th September 2017. On the 14th August 2017 the Applicant applied to the Circuit Judge, His Honour Judge Wildblood QC, for an order staying the order of the District Judge and for the appointment of the Receiver to be suspended pending appeal. In essence and in fact the latter is an application which goes to the appeal itself which is itself a second appeal against the appointment of the Receiver. The judge gave a Judgment in which he set out his reasons for staying the order in respect of payment of the lump sum but refusing to suspend the receivership. The Applicant seeks to appeal the refusal to suspend the Receiver only.

    Application pending appeal to the Circuit Judge: August 2017

    8. In his Judgment HHJ Wildblood quoted the District Judge as having said that it appeared that the Applicant was "game playing". It is not difficult to see why such a comment was made in the context of these proceedings and the findings made about the applicant's conduct which had led to the appointment of the Receiver in the first place. Nonetheless, the judge granted an order staying the District Judge's order and set out his reasons for doing so in his judgement and, specifically at paragraph [27], in respect of the payment of £20,000 by the applicant. The judge refused to suspend the receivership at that interim stage but, it was agreed that the receivership would be held in abeyance pending the appeal hearing which was due to take place in 28 days. The judge had been told, and took cognisance of the Respondent/wife's intention to apply for the receivership to be extended to the sale of the French property. [29].

    9. The judge expressed the view that he anticipated that such a step [29] "may well be necessary unless the sale of [the French property] is expressly controlled with clearly defined orders of the court. Further, I have not decided the issues of the £20,000 conclusively at this hearing and have gone no further than issue a stay. If I were to suspend the receivership order the effect would be that the assets of the husband would vest in him during that period of suspension and I have no doubt that would a) make it as difficult as he could to regain control of his assets at the end of the period of suspension if the receivership were ever to be revived and b) arrange his affairs so that the wife only gets whatever he agrees to her getting."

    10. Paragraphs [30] and [31] referred to the fact that the appointed Receiver had attended court on 14th August 2017 and had told the court that he could hold the receivership in abeyance pending the hearing of appeal in September and the judge said that he considered it was necessary and proportionate to continue the receivership and that he recorded "that it is agreed that it will be held in abeyance pending the appeal hearing" [31]. At [33] and [34] the judge made reference to the fact that the Respondent would be applying to extend the receivership to the sale of the French property observing both (at [33]) that while he accepted that such an application may now need to be made to be considered, that he was not saying what the outcome of such an application would be, and (at [34]) that if agreement could not be reached about the outgoings and sale price of the French property the issue could be resolved at the appeal hearing when either the receivership could be extended to ensure the sale of the property or the court has to take over control of the sale including the price.

    11. Notwithstanding the fact that the receivership was put on hold or in abeyance pending the appeal hearing which was due to take place 28 days later the Applicant appealed the decision of the judge in respect of his refusal to suspend the receivership. Any argument put forward by the Applicant that the judge had either prejudged the extension of the receivership to the sale of the French property is ill-founded. The property remains unsold and the Applicant has not, thus far, co-operated in its sale so any argument that nothing could be achieved by continuing the receivership and extending it to the sale is one that should, as anticipated, be considered by the Circuit Judge at the adjourned appeal hearing.

    Discussion and conclusion

    12. In essence the Applicant seeks to argue the substance of the appeal yet to be heard by the Circuit Judge regarding the receivership; he doing so he rehearses many, if not all, of the arguments first put forward and rejected in October 2016, as I have already alluded to at paragraph 4 above. Not only does the issues raised anticipate the matters which properly, and self-evidently, fall to be considered in the appeal hearing this interlocutory appeal is ill-founded and a wholly disproportionate misuse of procedure.

    13. The suggestion that the Applicant has been disadvantaged by the decision of the judge pending the appeal is bemusing; the receivership was to be held in abeyance and the order of the District Judge had been stayed. The appeal was due to be heard in 28 days. The reasons for the appointment of the Receiver remained apposite and relevant; the French property remains unsold, issues regarding the outgoings from the property are unresolved; the parties remained in dispute over an outstanding payment of over £20,000. That the Applicant had placed the money with his solicitor provides little by way of security; he could cease to instruct those acting for him or rescind his current instructions and his past and the present conduct does not assist. To say that launching a further appeal in respect of the receivership when that matter was already subject of appeal is disproportionate borders on euphemism.

    14. This application is without merit and is refused.

    15. The Applicant will pay the costs, including those of the Respondent, arising out of this application.


Published: 20/12/2017

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