Jersey Unreported Judgments

Matrimonial - issue of a summons for maintenance by the petitioner.

[2015]JRC032

Royal Court

(Family)

12 February 2015

Before     :		J. A. Clyde-Smith, Commissioner, sitting alone.
Between	A		Petitioner
And	B		Respondent

IN THE MATTER OF II

The Petitioner appeared on her own behalf.

The Respondent appeared on his own behalf.

judgment

the commissioner:

1.        The petitioner ("A") has filed a Form 15 summons giving the respondent, who is her former husband, ("B"), notice of her intention to apply for maintenance for herself and her two sons K, (who is aged 21) and L (who is aged 19).  The summons was accompanied by a copy letter dated 3^rd November, 2014, from Mourant Ozannes making demand on behalf of Jersey Home Loans Limited in respect of its charge over her property in St. Brelade and its intention to have recourse to that security.  Also attached were copies of the two judgments of the Royal Court dated 18^th November, 2010, (In the matter of II [2010] JRC 209) and 21^st December, 2010, (In the matter of II [2010] JRC 233A).  The judgment of the Court of Appeal dated 29^th June, 2011, (In the matter of II [2011] JCA 126) was not attached and indeed there was no other information filed with the summons.  There did not appear to have been any letter before action. 

2.        In its judgment of 18^th November, 2010, the Court said this at paragraph 73:-

"The petitioner is not presently self-sufficient and needs time to become so.  It would not be right in our view to dismiss her claim for spousal maintenance now and thus close the door on any claim for future support.  The respondent has no ability to pay maintenance at the present time but we propose to order him to pay the petitioner nominal maintenance at the rate of £1 per annum, which has the effect of keeping that door open should there be a significant change in the circumstances.  On the information that we have before us at the moment, we would expect the petitioner to have become self-sufficient in two years, at which points the respondent can apply to have her claim for spousal maintenance dismissed."

3.        Regrettably, the first hearing of this summons for maintenance was fixed before me on 30^th January, 2015.  Both parties represented themselves.  A was present in person, accompanied by Mr M as a Mackenzie friend, and B attended by telephone link. 

4.        On reviewing the papers and emails to the Bailiff's Judicial Secretary, I determined on 14^th January, 2015, that the first hearing would be a directions hearing.  In the light of A's submissions it went further than that. 

5.        At the commencement of the hearing, I intimated to the parties that I was minded to give directions for the filing of sequential detailed affidavits, and the appointment of an amicus curiae, bearing in mind that neither party was legally represented. 

6.        A then addressed me at some length, raising two issues.  Firstly, that I should recuse myself and secondly as to her capacity. 

7.        Taking the issue of my recusal first, she raised all of the same points as had been raised by her before the Court of Appeal (see paragraphs 35-43 of its judgment) and which were rejected by the Court of Appeal.  I note that the amicus curiae in those proceedings, Advocate Haines, agreed that there were no grounds for my recusal. 

8.        A went on to say, as she did before the Court of Appeal, that I had been partisan in my conduct of those proceedings - a proposition that was again rejected by the Court of Appeal.  A said that I was not a just and humane judge and she saw me, in a sense, as "her executioner".  My conduct had caused her great distress, to the point that she had been suicidal. 

9.        As the Court of Appeal said at paragraphs 41-43:-

"41.    Advocate Hoy has submitted that the law as to recusal is well settled.  The test to be applied is whether all the material circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the judge was biased, see para 31 of the judgment of Vaughan JA in In The Matter of the Esteem Settlement and the No 52 Trust C.A. [2001] JLR 189, as endorsed (with the deletion of the words "a real danger") by the Court of Appeal at para 6 of its judgment in Baglin v AG [2005] JLR 180, and at para 12 of the judgment of Montgomery JA in Syvret v AG [2009] JLR 330.  The test is an objective one and the subjective opinion of the party alleging bias should not be taken into account.  He submits that the nature of the "relationship" between the Commissioner and the respondent was a fleeting one 25 years ago and two meetings in 2004 which were entirely in a professional context.  He submits that no fair-minded observer with a measure of detachment would conclude that the Commissioner's previous contact with the respondent would have given rise to an appearance of bias or even to a potential for bias.  Had the applicant made an application before the hearing for the Commissioner to recuse himself it would have failed and for good reason.  Even if no application had then been made, had the Commissioner for any reason considered the question of whether or not he should have recused himself, he would have rightly concluded that he should not.  

42.      Advocate Haines adopts and agrees with those submissions. 

43.      We have considered all the matters put before us including the excerpts from the transcripts above.  We agree with the submissions of Advocates Hoy and Haines.  In our judgment there were and are no grounds upon which it can be said that the Commissioner should have recused himself."

10.      That remains the position.  There are no grounds for my recusal. 

11.      I would add that A seemed to have gained the impression that I was in some way anxious to preside over her new application.  This is not the case.  It is the Bailiff, acting through his Judicial Secretary, who decides how cases should be allocated between the judges of the Royal Court and I accept whatever allocation is made to me.  It would be normal for a judge who had previously presided over a matter to be asked to preside over any new application and this in the interests of continuity and consistency.  I have no doubt that I was asked to preside over this application simply because I presided over the previous hearings in 2010 and it made sense for me to do so rather than allocate another judge with no knowledge of the background. 

12.      Turning to A's second submission as to capacity, this did not relate to her capacity to represent herself and to instruct a lawyer, if one were to be appointed, but rather her ability to go through the stress of another hearing.  She made it clear that she did not want to go down the road of filing affidavits as to her means and to comply with all the other requirements that would follow in an application of this kind - to do so, she said, would be a charade.  B, she said, was a criminal who had committed perjury.  It should have been obvious to the Court that he had done so, and the Court should therefore refer the matter to the police.  Her marriage to B had been criminal from end to end and he needed to go to prison.  There was therefore no point, she said, in proceeding with the civil application.  It has to be said that A became quite emotional when addressing me, especially in reply to B. 

13.      B said this was a vexatious application which should be rejected.  He was currently paying maintenance of £12,000 per annum for each of K and L, who were both at university and there was simply no evidence that this was inadequate for them.  There had been no communication from either of them and they were, of course, now adults.  Indeed, K had been given legal aid in his own right in October 2013 and following correspondence from Carey Olsen acting on his behalf, the maintenance for both K and L had been increased. 

14.      A's real purpose, he said, was to re-open the divorce and re-visit the decisions made by the Court and then by the Court of Appeal, which she had never been able to accept.  She wanted to destroy his life and to that end, she had raised the allegation of perjury, both with his employer and with the Bar Council (B being a barrister), as well as members of his family including his elderly mother.  A accepted in her reply that she had indeed done this. 

Decision

15.      Having issued civil proceedings against B, A was now saying that she no longer wished to go down the road of civil proceedings, preferring instead to raise the allegations of perjury with the Court and with the police. 

16.      I can say now that the Court in 2010 did not find that B had been untruthful in any way and to the best of my knowledge, there is nothing in those proceedings to support an allegation that he has committed perjury. 

17.      Indeed, where there was a conflict of evidence between them, the Court preferred the evidence of B; see, for example, paragraph 49 of the judgment of 18^th November, 2010.  The Court rejected all of A's allegations of non-disclosure on the part of B (see paragraph 56 of the judgment of 18^th November, 2010,) and indeed found that it was A who had been untruthful in her dealings with B (see paragraph 55(iv) of the judgment of 18^th November, 2010). 

18.      Unless A has fresh evidence that was not before the Court in 2010 (and she did not produce any before me) there is nothing that can properly be referred to the police. 

19.      Judging from A's demeanour and the nature of her accusations, I do have concerns as to her mental well-being and her capacity to represent herself.  A told me that her property in Winchester was now derelict and the letter from Mourant Ozannes indicates that the charge on her St Brelade property is in the course of being called in.  In the 2010 proceedings, A had received considerable support from her brother, both morally and financially (see paragraphs 5-7 of the judgment of 21^st December, 2010,) but that relationship had now broken down - A told me that her brother "had treated her like a slave". 

20.      To issue a summons for maintenance and at the first hearing say there is no point in proceeding with the same is on the face of it irrational.  A's application cannot continue in any event if she is not prepared to file an affidavit of means and comply with the usual requirements in such an application and for her to try and use the application for quite another purpose (pursuing allegations of perjury arising out of the 2010 proceedings) is an abuse of the Court process. 

21.      I have considered giving A time in which to file an affidavit of means, notwithstanding her submissions that she is not prepared to do so, and if she failed to do so then at that stage to dismiss her application.  It is clear to me, however, that she would be incapable of doing this on her own and thus an amicus curiae would have to be appointed, with instructions to assist her at the request of the Court, and this at a material cost to public funds. 

22.      At the same time, I also had to balance her interests against those of B, who has been brought into these proceedings which will involve him in time and understandable stress. 

23.      I have concluded that the balance comes down in favour of B.  This application is an abuse of process and I therefore dismiss it with no order as to costs. 

24.      A indicated to me that she might be applying for legal aid and it certainly would be in her interests to receive legal advice.  Suffice it to say that if any further application for maintenance is made, it must be accompanied by a detailed affidavit in support, setting out the grounds upon which maintenance is sought and her means over the period from December 2010 to the date of such new application.  

Authorities

In the matter of II [2010] JRC 209.

In the matter of II [2010] JRC 233A.

In the matter of II [2011] JCA 126.