IN THE PORTSMOUTH FAMILY COURT                                Case Number GU13D00045

B E T W E E N:
                                           VIVIEN WELCH                         Applicant   

                                                    - and -

                                            DENIS WELCH                          Respondent

Written Judgment of His Honour Judge Edward Hess dated 19th June 2017

1.	This judgment relates to yet another application in the long running dispute between Mrs Vivien Welch (to whom I shall refer as “the wife”) and Mr Denis Welch (to whom I shall refer as “the husband”). I use these terms for ease of reference, although the parties have in fact been divorced for some time.

2.	I do not propose to set out the background to this application at great length as this is set out fully, inter alia, in:-

(i)	judgments given by me as a District Judge of the PRFD/Central Family Court on 9th September 2014 and 2nd June 2015;

(ii)	judgments given by me as a Circuit Judge at Portsmouth Family Court on 9th March 2016, 7th June 2016, 12th September 2016 and 15th September 2016;

(iii)	the recitals to my order dated 24th March 2017;

(iv)	judgments given by Roberts J (sitting in an appellate capacity from my decisions as a District Judge) on 16th and 23rd February 2015;

(v)	a judgment by Holman J (sitting in an appellate capacity from my decisions as a District Judge) given on 31st July 2015;

(vi)	decision records of McCombe LJ in the Court of Appeal dated 18th February 2016, 15th August 2016, 16th August 2016 and 26th August 2016 (sitting in an appellate capacity from the decisions of myself, of Holman J and of Roberts J); and

(vii)	a decision record of Russell J dated 4th May 2017 (sitting in an appellate capacity from a decision of mine as a Circuit Judge).

3.	The facts relevant to the present judgment are as follows:-

(i)	After a four day final financial remedy hearing I made orders on 9th September 2014 which included an order for sale “forthwith” of the property at Inglenook, 22 Roseacre Gardens, Chilworth, Guildford, Surrey (hereinafter “Inglenook”) in which the wife was and is a joint legal owner with a 1% beneficial interest.

(ii)	The reasons for this decision were fully set out in my judgment of 9th September 2014.

(iii)	The wife has always considered, and continues to consider, this order to be unfair to her and as having been procured by fraud and misrepresentation by the husband. In the judgment of 9th September 2014, and in subsequent judgments, I rejected the wife’s arguments in this respect and other judges sitting in appellate capacities have also rejected them. She has never accepted this rejection. In my judgment of 9th September 2014 I described her approach to all this as “obstinate, unrealistic and obsessive”. Nothing that has happened in the nearly three years of subsequent events has caused me to think that I was wrong about this. On 31st July 2015 Holman J made a two year civil restraint order, an unusual step in the family courts, perhaps reflecting the fact that he took a similar view. I note that this two year period is approaching its end. 

(iv)	The wife has made numerous attempts to have my order overturned (by way of appeal or set aside). All her attempts have failed. Every judge who has looked at the matter has rejected her substantive arguments, in almost every instance finding them to be totally without merit. All her appeal routes against the substantive order have been exhausted and rejected. Despite all this, the wife retains her optimism that she will one day be vindicated and remains obsessively determined to prevent the implementation of the order of 9th September 2014.

(v)	In the meantime the husband has been attempting to sell Inglenook.

(vi)	By June 2016 he had found a prospective purchaser and a price was agreed at £860,000. The wife did not cooperate in the execution of the transfer and the husband brought an application before me on 7th June 2016. I indicated in my judgment that I was prepared to execute the relevant documents if the wife continued to refuse to do so. The wife, who was present for the judgment, indicated that she remained unwilling to cooperate. Accordingly, having realised that the wife had no intention of cooperating, and recording this on the face of my order, I made an order which, I believed, legitimately authorised my execution of the conveyancing documentation. Accordingly, I executed the conveyancing documentation on 8th June 2016. The wife appealed against my order of 7th June 2016. A significant number of grounds were put forward. Most of the arguments were based on the wife’s ongoing campaign against my original substantive orders and these were all rejected, McCombe LJ ruling that they fell into the category of arguments which were totally without merit and commented that, for these points, “all avenues of appeal have now been exhausted”. The one argument which McCombe LJ thought that the wife may have an arguable case was based on the proper construction of Senior Courts Act 1981, Section 39. His decision was that there was an argument which had a sufficient prospect of success to justify the granting of permission to appeal, i.e. that I should have made an order which had a two stage process, first ordering the wife to sign the documents and then, if and only if she had been presented with the conveyancing documents and had declined to sign them, a second order authorising me to execute them myself. McCombe LJ’s view was that the Section 39 point, whilst “technically arguable…has no underlying merit and (the wife) ought to be co-operating in procuring the sale of this property rather than obstructing it…the appeal will have been a futile exercise”.

(vii)	As it happens, in the midst of the appeal process, the husband and the prospective purchaser of Inglenook renegotiated the contract price downwards from £860,000 to £835,000 and so the documents actually executed by me on 8th June 2016 became redundant in any event.

(viii)	Assessing the situation, and taking cognisance of CPR PD 52A, paragraph 6.4, the husband’s solicitors, in my view sensibly and legitimately and appropriately in the circumstances, took the decision that it was a more time and cost efficient exercise to permit my order of 7th June 2016 to be set aside without determination of the merits and to seek a fresh order, one which incorporated the new and correct sale price, and one which (without doubt) complied with Senior Courts Act 1981, Section 39. The wife did not cooperate with any of this, but the Court of Appeal accepted the husband’s solicitors’ view and so, to the best of my belief, there never was any final determination on the technical point.

(ix)	Accordingly, an application was made on 2nd September 2016 to the effect that I should make a (definitely) Section 39 compliant order:-

(a)	making provision for the delivery of the updated conveyancing documentation to the wife by email (i.e. the contract of sale, the Law Society Fittings and Contents form and Form TR1 and any further documents relating to this sale of the property, or any other sale of the property should the current sale process fall through) ;

(b)	giving the wife 7 days to execute the documents and deliver them up to the husband’s solicitors; and

(c)	authorising, in the absence of cooperation, the court to execute the documents on application without further notice to the wife.

(x)	I acceded to this application and accordingly made the order sought on 15th September 2016. The conveyancing documentation was duly presented to the wife. Once again, she refused to sign the presented documentation within the requisite time. An application was made for me to make another order authorising my execution of the documents. I made this order on 5th October 2016 and executed the conveyancing documentation on the same day.

(xi)	Unfortunately, this proposed sale also now fell through. Another prospective purchaser was found, but then withdrew and so the matter dragged on.

(xii)	In March 2017 a third purchaser was found, Mr Davis. A sale price was agreed and the conveyancing documentation was drawn up and submitted to the wife for execution. Once again, she refused to sign. Another application was made to me, initially without notice to the wife. The wife learned of the application and contacted the court indicating that she vehemently objected to my executing the documentation and indicated that if I made an order without notice she would apply to have it set aside pursuant to Family Procedure Rules 2010, Rules 18.10 and 18.11.

(xiii)	I decided not to deal with the application on a without notice basis and received written representations from each side. Once again, the wife sought to re-open the rejected substantive arguments. I rejected her arguments and made an order on 24th March 2017 directing that she should execute the conveyancing documentation by 12 noon on 28th March 2017, and indicated that I would if she did not. Once again, she refused to sign and I accordingly made a second order and executed the documents on the afternoon of 28th March 2017.

(xiv)	Unfortunately, by mid-April 2017, the new purchaser, Mr Davis, had withdrawn from the transaction. I have read the accounts of what happened which are contained in the statement dated 24th May 2017 of Emma Morris of Gordon Dadds LLP, the husband’s solicitors, together with its exhibits, and also the written representations of the wife dated 9th June 2017. It is perfectly clear that the wife’s obsessive behaviour in relation to these matters has continued, arguably worsened. Becoming aware of their identity from the sale documentation, the wife has bombarded the prospective purchaser (Mr Davis) and his solicitors (Hadfields, Butt & Bowyer) with barrages of misinformation and invective deliberately and maliciously designed to frighten them off from the transaction. In these communications she has wilfully misinterpreted the court process and mischievously misrepresented the facts. In a deliberate attempt to add authority to the bombardment she has misrepresented herself as a legal representative of herself practising under the title “Legal UK Partnership” (as far as I am aware she has no legal qualifications whatsoever). Perhaps not surprisingly, Mr Davis has been frightened off – no doubt it was easier to seek a property which did not have these conveyancing complications - and the wife has, once again, frustrated the husband’s legitimate desire to enforce my order of 9th September 2014. The wife is utterly unrepentant about all of this, believing her steps to be wholly justified. There is every reason to believe that, given the chance, she will do exactly the same thing again. One aspect of all this, which makes the wife’s behaviour all the more extraordinary, is that on completion of the sale, she will only receive 1% of the proceeds, and whatever she may receive is already subject to charges which outweigh its value.
 
(xv)	Although, as far as I have been told, there is not yet another prospective purchaser in the frame, the husband, fearful of these events repeating themselves, has now made an application dated 24th May 2017 seeking the approval in the form of a declaration from the court that, in relation to any future sale, “all future contracts of sale and associated sale documentation can be submitted to the wife for her signature without the names of the proposed purchasers or their solicitors appearing on the documents”. 

(xvi)	Having received this application I made a directions order on 25th May 2017 inviting sequential representations from the parties. I have received representations from Mr Ken Collins, Counsel for the husband, dated 1st June 2017 and from the wife, in person, dated 9th June 2017. I indicated that I would deal with the application on paper, which I now do.

4.	The legal issue arising relates to the interpretation of Senior Courts Act 1981, section 39. The section reads as follows:-
“(1)    Where the High Court or family court has given or made a judgment or order directing a person to execute any conveyance, contract or other document, or to indorse any negotiable instrument, then, if that person –

(a)	neglects or refuses to comply with the judgment or order; or

(b)	cannot after reasonable inquiry be found,
that court may, on such terms and conditions, if any, as may be just, order that the conveyance, contract or other document shall be executed, or that the negotiable instrument shall be indorsed, by such person as the court may nominate for that purpose.
(2) A conveyance, contract, document or instrument executed or indorsed in pursuance of an order under this section shall operate, and be for all purposes available, as if it had been executed or indorsed by the person originally directed to execute or indorse it.”

5.	In normal cases the procedure for pursuing a Section 39 application is (I can say from experience of it) clear, uncontroversial and well established:-
(i)	The party seeking the implementation sends the draft conveyancing documents to the other and invites their execution by signature.

(ii)	If the other party neglects or refuses to sign then the first party makes an on notice application to the court, providing a statement evidencing the failure and, subject to any representations by the other party, the court makes an order against the other party directing the execution by a set date, warning that if the other party doesn’t sign by the set date then the court, without back reference back to the other party, will make a second order authorising the execution by the court.

(iii)	If the other party’s failure to execute continues then a without notice application is made, supported by a statement evidencing the continued failure, and the court then makes a second order authorising the court’s execution and duly executes the documents.

6.	On some occasions, where the other party is being particularly obstinate, it has traditionally been thought that the procedure can be truncated, so that only one order is necessary. Authority for this approach can be found in the following sources:-
(i)	The notes to this section in the Family Court Practice (The Red Book) read as follows:-
“‘directing a person to execute' (s 39(1))—The person must of course be identified in the order, and he must have been ordered to execute a document, not merely (for example) to transfer a property. If an order has been made in the latter form, it is necessary first to secure an order requiring execution of the relevant document before an order can be made under this section.
‘neglects or refuses' (s 39(1)(a))—In the case of neglect or refusal, this section provides a cheaper, more effective and less draconian remedy than an application to commit. If this ground is relied on it must be shown that the Respondent is aware of the order but personal service is not mandatory. It is normally required that he has been given the opportunity to execute the document, but not if it is patent that he refuses and will continue to refuse to do so: Savage v Norton [1908] 1 Ch 290, ChD.”

(ii)	The notes to this section in Civil Procedure (The White Book) read as follows:-

“An order under this section should not be made in anticipation of a failure to execute unless the defendant has already shown by his conduct that he refuses and will refuse to execute (Savage v Norton [1908] 1 Ch. 290).”

(iii)	The judgment in Savage v Norton [1908] 1 Ch. 290 includes the following comments:-

“The second objection is that the order authorising a transfer to be executed by Mr. Mortimer was in anticipation of and not after a neglect or refusal. My own opinion is that, on the true construction of s. 14, the circumstance which gives rise to the jurisdiction is the neglect or refusal, and that the Court, before making the order, ought to satisfy itself that there has been a neglect or refusal and also as to the circumstances in which that neglect or refusal has taken place, because the order is only to be made “on such terms and conditions (if any) as may be just.” Therefore, in making the order, the Court ought to know the circumstances of the refusal or neglect as well as the fact that there has been a refusal or neglect. The refusal may, for instance, have been due to some unforeseen cause, and the party all along may have been willing, and may still be willing, to comply, but may have been prevented by some accident—in which case I doubt whether the Court would, after considering the circumstances of the case, make any order. I do not decide that there is no case in which the Court may make an anticipatory order, because it may be that the person ordered to transfer has in fact by his conduct already shewn the Court that he does and will refuse to do the act which is ordered to be done, in which case the Court may, shewing on the face of the order that there was that refusal, make an order at once in very much the same terms as those of the order in the present case. Under the circumstances I cannot say that there is no substance in the second objection, because an order in this form throws upon the Bank a duty of satisfying itself that there has been a neglect or refusal, and, although this particular case is a simple one in which the Bank can easily satisfy itself of the fact that there has been a neglect or refusal, in many cases that might be a more onerous matter.”

7.	It was with this in mind that I made the order which I did on 7th June 2016. McCombe LJ was persuaded that there was an arguable case in support of the proposition that the obiter observations in Savage v Norton, and thus the notes to the Red Book and the White Book, might not be regarded as good law. For the reasons described above, these arguments were not ultimately determined by the Court of Appeal. Perhaps discouraged by McCombe LJ’s earlier observations, I note that the husband’s solicitors have not sought to go down this route, at least at this stage. Having said this, if the obiter observations in Savage v Norton are good law then it is my view that the wife is exactly the sort of litigant, perhaps a paradigm example, against whom an anticipatory order might be made. It is clear beyond doubt that the wife has no intention of cooperating with the sale process, notwithstanding the clear written warning of the futility of her cause given to her by McCombe LJ.

8.	The husband’s solicitors’ chosen route for dealing with the mischief caused by the wife’s behaviour here is to seek the declaration referred to in paragraph 3(xv) above. This route assumes that the wife will receive draft conveyancing documentation, to give her the chance to sign it, but that such documentation should have the identity of the purchasers and their solicitors redacted. The husband’s solicitors hope that if the wife does not have this information she cannot repeat her mischief.

9.	In considering this application I remind myself that all the husband is seeking is to implement the order I made as long ago as 9th September 2014. It is very unfair to the husband for him to be denied the fruits of his 2014 litigation and still to have to be funding solicitors to achieve a result that was long ago decided. He cannot in practice be compensated in costs because the wife has no money (for the reasons described in detail in previous judgments). 

10.	I have sought legal submissions on the legal point arising and received the following representations:-

(i)	Mr Collins has said:
“There is nothing in the wording of Section 39 that indicates that W is required to have all (or indeed any) of the information regarding the transferee…It is submitted that a straightforward reading of the relevant section makes it clear that this is designed to be an enabling provision to ensure the court’s orders or judgments are not thwarted by the recalcitrance of someone whose cooperation is technically required to achieve the ends that the court intended. It follows that the court must be able to require W to sign the blank or redacted documents to give effect to its judgment if, by not doing so, the order is undermined and its purpose incapable of being achieved… The court must be able to prevent this atrocious behaviour.”

(ii)	The wife has said:
“Needless to say, and given the draconian nature of transferring the property on behalf of a third party, there is no provision under section 39 which permits a blank or redacted TR1 to be relied upon...It is as obvious as it is plain a judge cannot sign a blank or redacted TR1 to have legal effect, therefore the respondent’s application falls at the first hurdle”

11.	No authority is cited in either argument and my own researches have not revealed any authority directly on this point. It is therefore necessary to go back to first principles. My analysis is as follows:-

(i)	There is nothing in the words of the section which directly decides the point. The statute does not say that every detail of the contract must be presented to the refusing party to comply with section 39.

(ii)	The absence of the name of a contracting party or of his solicitors on the face of the contract would not, it seems to me, as a matter of contract law, without more, invalidate the contract. If the husband’s solicitors followed the suggested route, then the wife would still be being invited to sign what would become a valid contract. There is no obvious reason (and no reason advanced by her) why she should need to know the identity of the purchaser or his solicitor.

(iii)	The court should interpret a statute with a view to addressing the mischief that the statute exists to meet. In this instance, as Mr Collins identifies, the mischief arising is the behaviour of recalcitrant parties attempting to obstruct or impede or defeat the purpose of the court’s order. If this mischief can be defeated by redacting details from the documentation then the court should, prima facie, promote that approach. This is perhaps an application of the ancient “Mischief Rule” arising from old cases such as Heydon's Case [1584] 76 ER 637 3 CO REP 7A. 
(iv)	If the obiter observations in Savage v Norton are good law then the court can, in some circumstances of which this might be thought to be a paradigm example, validly execute orders without any presentation of documents to the recalcitrant party. Presenting redacted documents is a lesser measure and, ex hypothesi, more favourable to the recalcitrant party. It would be surprising if the less favourable remedy was lawful whilst the more favourable remedy was unlawful.

12.	For all these reasons I am going to grant the application sought by the husband’s solicitors. I would be grateful if the husband’s solicitors could supply me with a Word version of the draft order, incorporating the matters set out in this judgment, so that I can produce a clean copy for sealing by the court.

13.	One further matter. Although I have not heard argument about it, I am inclined to the view that Family Procedure Rules 2010, Rules 18.10 and 18.11, applying as they do to orders on without notice applications, do apply to the second order made in the normal two order process described above if the application is made, as is normal, on a without notice basis. As such, the second order authorising the execution by the court, should be served on the non-cooperating party (in the present case the wife) and should “contain a statement on the right to make an application to set aside or vary the order under Rule 18.11”).

14.	The husband has indicated that if he succeeds in this application, he seeks costs.

15.	In dealing with this request:-

(i)	I note “the general rule in financial remedy proceedings is that the court will not make an order requiring one party to pay the costs of another party”, see Family Procedure Rules 2010 Rule 28.3(5); but the power to depart from this in certain circumstances, see Rule 28.3(6) & (7).

(ii)	I know enough about the wife’s financial circumstances to reach the conclusion that there is almost no prospect of these costs being paid - the assessment of Holman J (see his judgment at paragraph 62) to the effect that “the fact of the matter is that this lady has absolutely no funds and no assets” remains apposite. 

(iii)	On the other hand, the wife’s conduct in these matters has been about as obstructive and unreasonable as might ever be seen. Consistent with her approach throughout these proceedings she has wholly failed to exercise any sensible judgment. In the meantime the husband has to go on paying lawyers to argue against this apparently endless series of challenges to the substance and implementation of my September 2014 decision.

16.	Taking into account all of these matters I have decided to make an inter partes order as to costs of this application in favour of the husband. These will be granted on an indemnity basis, to be assessed if not agreed. I would be grateful if this costs order could be incorporated in the draft order. It is not very likely that the husband will ever receive payment of these costs, but in view of the wife’s conduct, I think it is still appropriate to make the order.

17.	If either party wishes me to place this judgment on BAILII and requests the same in writing (copied to the other party) I shall do so.

His Honour Judge Edward Hess
Portsmouth Family Court
19th June 2017