B1/2001/1201

Neutral Citation Number: [2001] EWCA Civ 1186
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM COUNTY COURT
(His Honour Judge MacDuff)

								Royal Courts of Justice
								Strand
								London WC2

								Monday 16th July, 2001
B e f o r e:

LORD JUSTICE THORPE
LADY JUSTICE HALE
MR JUSTICE ASTILL

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MARIE LUISA WAITE
Petitioner/Appellant

- v -

TERENCE MICHAEL WAITE
Respondent

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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 020 7421 4040
Official Shorthand Writers to the Court)
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THE APPELLANT/WIFE appeared on her own behalf

THE RESPONDENT/HUSBAND appeared on his own behalf
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J U D G M E N T
1.	LORD JUSTICE THORPE: This is Mrs Waite's appeal against a suspended committal order made in the Birmingham County Court by His Honour Judge MacDuff QC on 21st May.
2.	The outcome of the appeal lies largely in the chronology. Mr and Mrs Waite were engaged in acrimonious dispute following the breakdown of their marriage. The territory for dispute was considerably extended by the fact that they were involved in a trading company as well as in a marriage and in ordinary property ownership. There were disputed dealings in relation to the company, Swaptronics Ltd, which were the subject of proceedings in the Chancery Division, culminating in a judgment of Neuberger J and subsequently in this court in a judgment of Robert Walker LJ, seemingly delivered on 11th November. 
3.	The ancillary relief proceedings, which are perhaps the primary proceedings as far as the couple are concerned, culminated in a four-day hearing before His Honour Judge Donald Hamilton in the same County Court. We do not have a copy of his judgment, but we do have a copy of his order which demonstrates that on the judgment day, 22nd September 2000, both the parties appeared in person. He made an order which was intended to produce for the wife the lion's share of the equity in the final matrimonial home. In recognition of that end result, he gave her the conduct of the sale. She was in any event the remaining party in occupation. He provided specifically by paragraph 2 of his order that the first £25,000 should go to Mr Waite; the balance to her. He then provided that should the house sell in excess of £235,000, the first £17,000 of excess should go to the husband and the second £17,000 to the wife. He also said that the wife should transfer to the husband all her shares in Swaptronics Ltd. Paragraph 5 of his order provided that the husband should pay to the wife periodical payments from 1st August 2000 to 31st July 2001 at the rate of £1,000 per calendar month payable on the first day of each month. 
4.	The wife was dissatisfied with this outcome and at some stage she sought permission to appeal from this court. However, before her application was listed there was a further hearing in the Birmingham County Court before Judge Hamilton in which the husband sought implementation, since nothing had happened since 22nd September to realise the value in the property. The order that he made on 5th February began the process of transferring practical control from wife to husband. He discharged the previous order giving conduct of the sale to the wife, and provided instead that the wife had a period of approximately 14 days in which to nominate an estate agent and a solicitor to conduct the sale. Mr Waite was to have conduct of sale, but was to use the professionals nominated by the wife if she did so within the time limit. 
5.	Paragraph 2(3) of the order provided that if the wife did not co‑operate in the sale, the husband should be entitled to apply to the court for an order for possession with a view to effecting a sale. Paragraph 4 provided that the arrears of maintenance under paragraph 5 of the order of 22nd September, specified as being £3,000 due for the months of December, January and February, should be paid forthwith. 
6.	The application for permission was listed before Ward LJ on 30th March. It is plain from his careful judgment that he gave considerable freedom to Mrs Waite to air her sense of grievance. He heard what she had to say about the husband's manipulation of the company and the shares in the company, but he said that that matter had been specifically investigated by Judge Hamilton in the previous autumn. He investigated equally the other complaints made by the wife, but in the end said that, whatever complaint she might have, they could not be complaints levelled at Judge Hamilton. He had applied the law correctly, he was justified in the findings of fact which he made and his judgment was impossible to upset on appeal. 
7.	On 5th February Judge Hamilton, in his judgment which is before us, was highly critical of the wife's conduct in the aftermath of the substantive hearing. He even found her guilty of some deception. To that extent he seems to have encouraged the husband to consider reopening the outcome of the principal hearing. No step has been taken by the husband to that the end.
8.	The case returned to Judge Hamilton shortly after the application for permission was dismissed. On 6th April he made the order that was foreshadowed by paragraph 2(3) of the order of 5th February, namely that the wife should vacate by 11th May. Within that period the wife applied herself for an extension. That application was again listed before Judge Hamilton on 4th May. He gave her a very brief extension to 16th May, but he attached a penal notice to the order putting her at risk of imprisonment if she disobeyed.
9.	On 16th May Mr Waite attended at the premises to find his former wife still in occupation. So he hastened to the County Court and at 14.36pm issued a notice in Form N78 requiring her to show cause why she should not be committed for breach of the order of 4th May. He has told us that he served that application at the former matrimonial home within an hour or two of its issue. The application was returnable before the court the following Monday, 21st May. It transpired that Judge Hamilton was on holiday in that week, so the application was listed before Judge MacDuff. In a clear judgment which we have, he explained to Mrs Waite that she really had to go and she had to go by the 29th. If she failed, then she would go to prison for a period of 14 days. She did not go and seemingly a Mr Charity, who has been assisting her with her affairs, applied on 29th May in the Chancery Division for a stay of the order of Judge MacDuff or something to that effect. That application was, not surprisingly, dismissed by Lawrence Collins J. 
10.	Two days later, on 31st May, she issued her appeal in this court. That of course she may do as a matter of right, since the order that she challenges is an order for her committal. The proceedings were apparently not served on Mr Waite and he only came to learn of them relatively recently, but in sufficient time for him to appear today in person. 
11.	When he became aware of her failure to comply with Judge MacDuff's order he issued an application on that very day, the 29th, in the Birmingham County Court seeking her committal. He swore an affidavit in support and he served the proceedings on her that day. We have not seen the application itself, but I am assuming that it provided for a return on 19th June because Mr Waite has handed in an order made on that day by Judge Hamilton in which he ordered that the application for Mrs Waite's committal stand adjourned until 23rd July to allow for the determination of this appeal. 
12.	Mr Waite has also told us of a freestanding application, either issued or heard on 6th June, which led to an order by the District Judge executing the transfer of shares in Swaptronics Ltd, the shares ordered on 22nd September to be transferred, since Mrs Waite had in the interim failed to comply with that order. 
13.	Seeing the whole picture, the appeal to this court in relation to the suspended order of 21st May seems but a last-ditch attempt to stave off the almost inevitable process of execution. However, Mrs Waite, who has presented her appeal with considerable charm and eloquence, has raised a number of points that must be evaluated.
14.	Her principal complaint is that she really had no time to deal with the application issued and served on 16th May. She says that her rights under Article 6 of the Convention have not been honoured, and that she is inevitably at a disadvantage as a litigant who has no legal representation and whose first language is not English. It does not seem to me that there is any substance in that point, since it is established that the application to show cause was served at about 4.00pm on the 16th, and that is due compliance with the rules of court which, I believe, require two clear days' notice. 
15.	She then says that she has recently obtained evidence to substantiate her oft-repeated claim that she is the victim of fraudulent steps taken by her former husband to defeat or diminish her statutory claims. She has produced to this court what she says is an audio tape of a conversation between herself and a Ms Laura Toniato, which would corroborate her allegations. We pressed Mrs Waite for information as to when this witness came to her notice and she was unable to be very specific. She said that it was some time in the month of May after the 16th.
16.	Despite the fact that her application to challenge the root order of 22nd September has failed in this court, it remains possible for a litigant to apply belatedly to set aside an order obtained by fraud, if evidence of fraud has come to light after the date on which the application for permission was dismissed. But in this instance the clearest warning should be given to Mrs Waite that the perpetuation of her emotional conviction that she is the victim beyond the point at which the proceedings have seemingly been conclusively terminated, could lead to the loss of the financial security that the order of 22nd September was designed to provide for her. Applications to set aside on the grounds of fraud are notoriously heated, prolonged and expensive. Nothing in this development is in my judgment sufficient to invalidate the order made by Judge MacDuff on 21st May. 
17.	The last matter, which is raised during the course of her submissions, is that she has been kept in penury during the course of this litigation. We accordingly asked Mr Waite to account for his performance of his obligation under the order. He has produced to us a statement of account covering many years, but I concentrate only on the period commencing 1st August 2000 which is the period covered by paragraph 5 of the order of 22nd September.
18.	His account seems to show that in the months of August and September he underpaid at the rate of £300 a month, and that he underpaid in the two following months at the rate of £200 a month. So that between 1st August and 30th November he seemingly underpaid sums totalling £1,000.
19.	For Mrs Waite it can be said that a party to proceedings himself in breach of the order should not succeed in an application to commit the other party for some other breach. Mr Waite has accepted the arrears in respect of the months of October and November, and he has said that he is perfectly prepared to discharge those arrears in the sum of £400 immediately. He questions whether he has any liability in respect of the months of August and September, since he asserts that the judgment of Judge Hamilton belies the order as drawn. He asserts that the intention of the judge was, as expressed in his judgment, that the £1,000 rate should start on the next due date which would have been 1st October. We are unable to verify that suggestion, since nobody in court has a copy of the judgment of 22nd September. 
20.	It does seem to me slightly curious, in that on 5th February, as his judgment discloses, Judge Hamilton sought to bring the account between the parties to date. It was during the course of the exchanges on that day that he seemed to identify the arrears then current in the sum of £3,000 and ordered those arrears to be discharged forthwith. He said at page 5H: 
“The arrears of maintenance which have accumulated under paragraph 5 of the order of 22nd September in the sum now of £3,000, being the payments due on the first days of December, January and February, must be paid forthwith.” 
21.	It may be that on that day because neither party was represented the possibility of arrears in relation to the months of August, September, October and November was simply not ventilated. In view of the uncertainty, it seems to me that the proper way of proceeding today is to ensure that the foundation for the possession order and the penal notice be restored or re-established in so far as it may be defective. Since there is to be a hearing before Judge Hamilton next Monday, it seems to me sensible to refer to him the ultimate quantification of such arrears as existed at the time of the application culminating in the order of 4th May and the application culminating in the order of 21st May. Whatever sum is set by Judge Hamilton must be paid immediately upon quantification. 
22.	But with that safeguard, I am myself satisfied that Mrs Waite has shown insufficient grounds for interfering with what was a conventional disposal made by Judge MacDuff on 21st May. I would myself dismiss this appeal and leave the further conduct of this fraught story to Judge Hamilton when he sits on Monday next in the County Court. 
23.	LADY JUSTICE HALE: I agree with the course proposed with by my Lord, Lord Justice Thorpe, albeit with considerable anxiety.
24.	It is a fundamental principle that those who seek the assistance of the courts - and in particular those who seek to enforce orders through the most draconian means available, that is of sending somebody to prison - should themselves be scrupulous in their own obedience to what the court has required of them. On the face of the information before us, the applicant husband was in breach of the very order which he is seeking to enforce to the tune of £1,000. If that be the case, it seems to me that it would not be proper for the order to be enforced against the wife unless and until everything is made good and a suitable interval elapses. But as my Lord has suggested, that matter is better ventilated before the judge who is in full possession of the information and facts and evidence relevant to it.
25.	MR JUSTICE ASTILL: I also agree. But I, too, am uneasy at the prospect of a party to proceedings obtaining the benefit of an order of the court when he himself is in breach of a parallel order. It is only as a result of this hearing that the arrears have been revealed as an issue and Mr Waite has promised to discharge them forthwith - and indeed my Lord's order is to that effect - upon quantification. The fact is, though, that some arrears do exist, although the exact figure is to be decided.
26.	That to my mind is not the end of it. The reason is that Mr Waite's breach is remedied only because of the investigations of this court. When his application to commit Mrs Waite to prison comes before His Honour Judge Hamilton, it seems to me that the judge has a discretion to take Mr Waite's breach into account when considering whether to grant the warrant of commitment. I do no more than raise a matter which the judge has, in my judgment, power to consider. Whether he does so, and if he does with what result, will be a matter entirely for him. 
ORDER: Appeal dismissed; application for permission to appeal to the House of Lords refused.
(Order not part of approved judgment)