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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Corbett v Corbett [2003] EWCA Civ 559 (28 February 2003) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2003/559.html Cite as: [2003] EWCA Civ 559 |
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ORDER OF
MR JUSTICE HEDLEY
Strand London, WC2 | ||
B e f o r e :
LORD JUSTICE POTTER
LORD JUSTICE TUCKEY
____________________
CORBETT | Appellant | |
-v- | ||
CORBETT | Respondent |
____________________
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR JONATHAN SOUTHGATE (instructed by Payne Hicks & Beach of London) appeared on behalf of the Respondent
____________________
(AS APPROVED BY THE COURT)
Crown Copyright ©
"This is to remind you that I have paid money from Blueprinting Excellence into our personal account. £5,000 in October ..... and £7,000 in December 2001. You have promised to pay this back when you sell the Abbeyville Road flat."
"I am lending you £15,000 from Blueprinting Excellence. Remember you have to pay this back so I can pay my company tax!!! When you finally sell that damn flat."
A further £9,000 was advanced in April and an additional £5,000 in May. All the while the husband was paying the wife the reduced monthly sums of £500.
"To the extent that you are able to pay more than £500 this would be much appreciated: otherwise, if you could send to her or via this firm a cheque for £500, I would be most grateful."
Her intentions were thus defined:
"She simply seeks to restore the level of maintenance as ordered by the court (by consent), failing which to negotiate either (a) an appropriate rate based upon your current financial circumstances or (b) payment of an appropriate capital sum in full and final settlement of her financial claims."
Nothing could have been more reasonable nor less belligerent than the terms of that letter.
"Here is a letter to confirm the two final payments to you from my company Blueprinting Excellence - £9,000 in April ..... and £5,000 in June. I have now paid ..... "
and then the letter records all payments totalling £41,000. The letter ends with this sentence:
"This makes it as much as the agent says we'll get from the flat. Please pay me back."
"If you genuinely, as may well be the case, are unable to adhere to the terms of that initial order, then the correct step for you to take is to apply to the court for that order to be varied, not simply to be saying, 'I cannot pay'."
Upon that basis the judge, very sensibly, adjourned the case over, urging the husband to take legal advice and to make application for variation. No doubt, Judge Anwyl anticipated that her advice would be taken. Unfortunately, it was not. No application for variation had been issued when the summons returned to the lists on 6 December. Only with the advantage of hindsight can it be said that it would perhaps have been better if Judge Anwyl had put the husband on terms to issue his application for variation within, say, a period of 24 hours and had gone on at once to give directions to ensure that that application was duly prepared for determination on the occasion of the return of the judgment summons.
"Sorry, the judgment summons is a peculiarity of the London County Court that is not used anywhere else in the world as far as I know, certainly not in any provincial county court I have experience in. We gave them up years ago. So it is all slightly new country to me ..... "
and words to similar effect were recorded at page 26.
"I believe the respondent's standard of living has remained high. I am aware that in the last year he paid £4,000 in relation to the purchase of a property for our daughter Louise. The respondent remarried in June 2001 and I believe that his wife is successful. The respondent and his new wife purchased a new property shortly after they were married for a figure in excess of £450,000. The respondent and his new wife both owned their own flats prior to their marriage and I know that the respondent's Surrey flat has been placed on the market. I also know that he has taken holidays abroad in recent months and do not accept that he cannot meet my maintenance payments in full."
"You are hereby summoned to appear personally before one of the judges sitting in this division ..... to be examined on oath, touching the means you have or have had since the date of the said order to pay the said sum in payment of which you have made default and also to show cause why you should not be committed to prison for such default."
"Well let us see what Mr Corbett wants to say."
Thereafter we read some 13 pages of exchange between Mr Southgate and the judge which, I think, can fairly be categorised as judicial cross-examination. The opening tone is perhaps somewhat abrasive and perhaps somewhat sceptical, but as the exchanges proceed it becomes increasingly apparent that the judge rests confidence in the husband's account.
" ..... she accrues that money and she lent it to our account on the basis that it would come back and I agreed with that and she wrote me three letters, and that is what I did with it. That money was put in our account and without that I would have gone into personal bankruptcy and [my former wife] would not have received anything, so indirectly she did benefit from that. I had an obligation to my wife to pay that back, or I am simply transferring the problem to her and her business which is not right."
The judge said in response:
" ..... you have chosen to defy the order of the court in preference to sorting out such obligations as you may have with your wife? That is your choice, but you have to live with the consequences of that choice, do you not?"
He continued:
"You are a sensible adult. You know perfectly well that court orders can be enforced. If you choose to ignore them you can hardly be heard to complain if the court then chooses to enforce it, can you?
Mr Corbett's response was:
"I did not ignore it wilfully as is suggested."
That passage gives a reasonable summary of the case Mr Corbett presented to the judge over those 13 pages.
" ..... that is why I did it because I had an obligation to [my present wife]."
"I unreservedly accept that, Mr Corbett. I entirely accept what you say about that."
And similar observations are to be found on the following page and in the terms of the judgment subsequently delivered.
"There is outstanding a debt of £11,297 inclusive of interest and costs. Mr Corbett borrowed from his wife for living expenses ..... Mr Corbett sold his property; he decided to have paid the £40,000 into his wife's account in defraying the loan because it was said to be needed for a tax bill."
On those findings the judge concluded that the essential ingredient of wilful neglect had been made good and that he really had no alternative but to impose some form of imprisonment on Mr Corbett.
"Rules 11 to 13 make various amendments to the procedure for judgment summonses in Rule 7.4 to 7.6 of the Family Proceedings Rules 1991 following the Court of Appeal's judgment in Mubarak v Mubarak. Rule 18 makes consequential amendments to Form M17."
"On the hearing of the judgment summons the judge may -
.....
(b) where the order is for ..... periodical payments and it appears to him the order would have been varied or suspended if the debtor had made an application for that purpose, make a new order for payment of the amount due under the original order, together with the costs of the judgment summons, either at a specified time or by instalments."
"The learned judge made it clear that such statement should include the difficulties with the company, any steps taken to improve the company's fortunes and the position of the company as it was in January and as it stands today. This statement should be supported by evidence, for example, your trading accounts, a letter from the company's bankers and bank statements, your tax returns, P60s, salary slips, details of investment or other income and a summary of your assets."
Later the letter stated:
"During the course of the hearing you informed the court you have now accepted an offer for the sale of your flat in Weybridge. No further details were given. In view of the lack of current information available to us regarding your finances we would ask that you forthwith provide your conveyancing solicitors with irrevocable instructions in writing to communicate to us immediately (in the first instance by telephone to our Miss Birtles and thereafter in writing) ..... "
There then followed details of the information requested and a further request was made that the husband should ask the solicitors to provide -
"irrevocable instructions in writing to give an undertaking to this firm to retain the net proceeds of sale in a designated interest bearing deposit account on your behalf and not to release the same ..... without the consent of this firm or order of the court ..... "
"PHM [the solicitor] explained that all that was required here was a simple authority and instruction on his part to his conveyancing solicitors to inform us as to whether contracts have been exchanged and, if so, the contractual completion date. If the completion date was after 6 December there was no difficulty. In the event that the completion date was prior to 6 December then we would be inviting him to agree that the net proceeds of sale be placed in an escrow account pending the outcome of the hearing on 6 December. PC [the husband] said that the approach Margaret Corbett and her advisers were adopting would end in disaster for her."
A little later it was noted:
"PC said that he would produce documentation in relation to the affairs of the company but this would be for the judge's eyes only. He would not provide any of this information to PHB or to Margaret Corbett. Similarly, he had no authority on behalf of his wife to disclose any information in relation to her financial circumstances."
Order: Appeal allowed