Topping v Topping

Neutral Citation Number: [2008] EWCA Civ 1142 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE MANCHESTER COUNTY COURT (HIS HONOUR JUDGE RAYNOR QC) Case No: B4/2008/1787 Royal Courts of Justice Strand, London, WC2A 2LL Date: Wednesday, 10 th September 2008 Before: LORD JUSTICE TUCKEY and LORD JUSTICE LONGMORE - - - - - - - - - - - - - - - - - - - - - Between: TOPPING - and - TOPPING - - - - - - - - - - - - - - - - - - - - - (DAR Transcript of WordWave International Limited A Merrill Communications Company 190 Fleet Street, London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 Official Shorthand Writers to the Court) Appellant Respondent - - - - - - - - - - - - - - - - - - - - - THE APPELLANT HUSBAND DID NOT APPEAR AND WAS NOT REPRESENTED. Mr C Eastwood (instructed by Pannone) appeared on behalf of the Respondent Wife. - - - - - - - - - - - - - - - - - - - - - Judgment Lord Justice Tuckey: 1. This is an appeal by David Topping from an order made by HHJ Raynor QC on 4 June 2008 committing the appellant to prison for 42 days or until he had paid the sum of £442,816.74 to the respondent, his ex-wife Kathryn. The warrant of committal was not to be enforced until 21 days after service of it and the judge’s order on the appellant. 2. The appellant has not appeared before us today, and I must first explain why and why we have decided to hear the appeal in his absence. He filed his own notice of appeal and has indeed acted in person for at least the whole of this year. The notice of appeal was out of time, being filed on 24 July 2008 but within 21 days of service of the warrant upon him. The respondent in those circumstances does not object to our granting the appellant the appropriate extension of time and we do so. Upon receipt of the notice, Wilson LJ stayed enforcement of the warrant until determination of the appeal. On 31 July the court informed the appellant that his appeal would be heard today, 10 September. He did not at this stage object to this date or put forward any reason why he could not attend today. 3. The applicant now lives with his second wife, Ofelia, in Malaga. By letter dated 2 September but faxed from Malaga to this court two days later (that is to say, last Thursday afternoon) he asked for an adjournment because he was due to be admitted to hospital yesterday, 9 September, for a medical procedure. His letter was accompanied by a statement from his doctor dated 19 August, which said: “Since May 2007, he has been receiving special cardiac supervision by Dr Chauhan who is monitoring his aortic stenosis (leaking valve) and diagnosed left ventricular hypertrophy. With regard to the leaking valve, there has been significant deterioration within recent months and Dr Chauhan has arranged for a transoephageal echocardiograph to take place on the 9th September. This will determine when surgery to replace the aortic valve should be scheduled. The procedure on the 9th September requires hospitalisation and it is important that he takes up his allocated treatment date.” 4. The procedure described is obviously investigative: an ultrasound cardiograph taken via the throat. There is no up-to-date report from Dr Chauhan, but there are earlier reports from him with the papers which show that he is a consultant cardiologist practising in Blackpool and that the appellant has a long-standing aortic valve disease. When Dr Chauhan last reported, in September 2007, he said that the aortic valve leak was not significant. His plan was to see the appellant in six months’ time for further assessment. We are not told whether this took place or what it revealed, but what does seem to be clear from what we are told by the Spanish GP is that it is Dr Chauhan who is undertaking this procedure, due to take place yesterday and we infer -- since there is no suggestion that Dr Chauhan practises in Malaga -- that it is to be undertaken in hospital in Blackpool. So if the procedure was carried out it was carried out yesterday in Blackpool and it is likely that the appellant is still here today. 5. In any case, what is clear from what I have said so far is that the arrangement to have this procedure carried out must have been made after the appellant knew that the court had fixed the hearing of the appeal for today and that the appellant knew that it was to be done on 9 September by at the latest 19 August, yet he chose to say nothing about it until the end of last week. 6. His application for an adjournment was put before me last Friday, 5 September. I refused it, saying: “This matter must now be finally resolved. I can see no reason why the investigative procedure (recently, I assume) planned cannot be postponed for a few days.” 7. What I have already said I think entirely justifies this decision and it is further justified by the earlier history of this matter, to which I will come. 8. Unfortunately, however, the Court of Appeal office did not accurately report my decision to the parties: instead of saying “postponed for a few days” it said “postponed for a few months”. Following receipt of that information the appellant faxed this court on Monday 8 September, saying: “I am sorry that Lord Justice Tuckey has refused my request for an adjournment. Regrettably I have no other alternative but to proceed with the investigative procedure which I have been advised by my medical adviser must take place urgently in view of the medical condition from which I am suffering. It certainly cannot be postponed and certainly not for a few months. In view of what his Lordship has ordered I cannot do anything other than to withdraw the Appeal which I now do.” 9. In the light of this fax the appellant was sent the court’s standard dismissal with consent form which he signed and returned yesterday on the basis that there was to be no order for costs as between himself and the respondent, who has undoubtedly incurred costs in relation to this appeal. For this reason dismissal on those terms was not acceptable to the respondent as they made clear yesterday. 10. When informed by the office of its mistake the appellant’s second wife replied, saying: “…in the light of Tuckey LJ’s remarks about months it was felt that it was not possible to do anything else but to go ahead with the medical procedure (operation) “[which it is not]” and in those circumstances he had no other alternative but to withdraw the Appeal. In fact there was no other real option. I should point out that this type of operation…has to be arranged some time in advance requiring highly specialised care and the consultant was concerned that the operation should take place as soon as possible. A leaking aortic valve is a potentially life threatening condition and neither he nor I nor indeed his consultant felt able to put off a matter of this nature. Please bear in mind that it could have taken some time for another hospital slot to become available. It was unfortunate that the two matters should coincide but this is what has happened. I know he wanted the Appeal to go ahead but his Lordship has refused to adjourn, apparently preferring the legal argument to the medical condition. The court must therefore decide if it will agree to adjourn or hear the Appeal in all the circumstances that I have set out above.” 11. Having received that email I directed that the parties should be told the following: “In the light of the exchanges between the court, Mr Topping and Ofelia Topping, I do not think we can dismiss the appeal with costs without a hearing. If that is to take place tomorrow the respondent must realise that there is a risk that we shall have to adjourn the appeal. If she is not prepared to take this risk, I will adjourn the appeal without the need for anyone to attend and impose conditions with a view to fixing as early a hearing as possible.” In response to that the respondent’s solicitors indicated that they did want a hearing, and they have appeared today with counsel aware of the risk they face. 12. So the position today is that the appeal is still live and the appellant is still asking for it to be adjourned. It is not open to us to dismiss it by consent because there is no agreement about costs and it may be that if my reasons for refusing the adjournment had been relayed accurately the appellant would not have agreed to withdraw his appeal at all. 13. Nevertheless I would still refuse to adjourn the appeal for the reasons which I have already given and those which will emerge from the history when I deal with the merits of the appeal, to which I now turn. 14. Following the parties’ divorce an order for periodical payments was made in the respondent’s favour. When the appellant failed to comply with this order the respondent applied to vary it so as to capitalise her claim. By an order made on 9 January 2006 the appellant consented to do this by paying her a lump sum of £400,000 on or before 31 May 2006. Nothing has been paid under this order and it and various sums for costs explain the amount required to be paid by the committal order. 15. There were various proceedings in 2006 and 2007, which I do not need to refer to other than to note that at a number of these hearings the appellant did not appear. On 23 January 2008 suspended committal judgment summonses issued by the respondent came before HHJ Appleby QC in Manchester. The appellant did not attend that hearing, but the judge made the order for which the respondent asked. Unfortunately he did so without seeing an affidavit which had been sworn by the appellant on 3 January 2008 in response to the wife’s application. It is not clear precisely when that affidavit was filed in court but it is clear that it was not put with the court papers which HHJ Appleby had before him when he heard the judgment summonses. The affidavit contended that the judgment summons had not been properly served and that the appellant no longer had the means to pay the lump sum. At paragraph 3 of the affidavit the applicant said: “As I have previously indicated my health has deteriorated of late. A major cause of the deterioration has been the anxiety caused by the proceedings brought against me by the Petitioner with the attendant Court appearances, Summonses and correspondence. I have now been told that I do have a serious coronary problem which may have to be the subject of surgery at a date some time in the near future. In this respect I produce the following medical evidence…” And indeed the affidavit did exhibit a number of reports, including the report from Dr Chauhan to which I have already referred and other reports referring to the stress caused by the proceedings to which the appellant had referred. This affidavit concluded by saying: “In view of the contents of the medical report I shall not be attending Court for the hearing of this Judgement Summons and in view of the problems with regard to payment of legal fees I will no longer be represented.” 16. The appellant appealed HHJ Appleby’s order to this court on the basis that the judge had not seen his affidavit. When HHJ Appleby realised what had happened he agreed to re-hear the matter in Manchester. The appeal came before me in May when I dismissed it on terms that the judgement summons would be re-heard in that way. Originally that hearing was scheduled for 16 May, but it appears that HHJ Appleby became unavailable on that date, and on 9 May the court made two orders: one vacating the 16 May date and the other refixing the date for 4 June. Why it was thought necessary to make two orders to achieve this is a mystery, a mystery which was compounded by the fact that the first order said that the 16 May date had already been amended to 14 May. Seizing his opportunity to take advantage of this situation the appellant wrote to the court in a letter dated 20 May saying he was confused and asking: “Is the case going to be heard on the 4th of June or is that date going to be changed also.” 17. The appellant’s Grounds of Appeal which he has put before the court in support of it do not continue the story or show whether that question was answered or not. But the question is answered by what HHJ Raynor said in paragraph 13 of his judgment. Having referred to the appellant’s letter, the judge said the court confirmed the case was to be heard on 4 June by letter dated 30 May. The judge said there was no doubt at all that he knew the date of the hearing because a fax was sent to the court on 3 June signed by his second wife headed “Application For Judgment Summons Hearing on 4th June”, saying “My husband has asked me to send this fax on his behalf as he is unwell at present”, making it clear that he knew of the date and that he was not going to attend the hearing because he was unwell. The appellant complains about what happened in relation to the 4 June date in his notice of appeal but, for the reasons given by the judge, there is no substance whatsoever in this complaint. 18. The judge went on to consider the matters raised by the appellant in his affidavit to which I have referred. He dealt first of all with the question of service of the judgment summonses on the appellant where, for very good reasons, the judge accepted the evidence which was before him from a Spanish inquiry agent who had served the relevant documents upon the appellant and rejected the appellant’s account given in his affidavit. I need say no more about that. 19. He then went on to consider whether the appellant did have the means to meet the order. It is unnecessary to go through the judge’s reasoning in any detail, but its obvious starting point was that this order had been made by consent. At some later stage the appellant had said he would be able to meet the order having raised £210,000 on his shareholding in an English business, Cresta Furniture Limited. The judge also noted that the house in Marbella where the appellant now lives with his second wife had been valued in the course of the proceedings at €1.5 million and that, whatever mortgage there may have been or whatever interest his second wife might have in that house, there was substantial equity in it which would have enabled him to pay the judgment summons amount. He concluded for those reasons that the applicant had refused or neglected to pay the judgment sum amount although he could then, or at least since the order was made had had the ability to, meet it. So it was on that basis that he made the committal order to which I have referred. 20. In the course of the judgment the judge also dealt with the applicant’s health, and it is clear that he read the affidavit and the medical reports which were attached to it and took that into account when considering what order he should make. 21. The main point which the appellant makes in his notice of appeal is that the judge did not in fact consider the contents of his affidavit at all. He says that the affidavit is not referred to in the judge’s order. That may be so but it is quite obvious from the judge’s judgment that he did fully consider the contents of the affidavit. He would not have been able to make any of the decisions he did without doing so. He says that the judge did not take proper account of his serious health problems. But it is obvious from the judgment (see paragraph 14) and what I have already said that the judge did. He asserts that he does not have the funds to discharge this liability, as he has for at least the last year. But there is no proper affidavit of means from him which demonstrates the truth of what he says, and the judge has referred to assets which the appellant does have available to him which led the judge to conclude that he could meet his liability under this order but has deliberately refused or neglected to do so. The whole history of this matter demonstrates that this is a man who is now deliberately attempting to avoid meeting this obligation by all possible means. 22. In my judgment his Grounds of Appeal have no prospect of success. They are wholly without merit. I obviously took this factor into account when considering whether this was an appropriate case for an adjournment. I also bear in mind the effect that these protracted proceedings have had on the respondent, which the judge refers to in paragraph 40 of his judgment: considerable financial hardship and her health has suffered, as one would expect by a continuing saga of this kind. As I said when I refused the adjournment, “This matter must now be finally resolved”. It will be so far as this court is concerned by my saying that I would dismiss this appeal. Lord Justice Longmore: 23. I agree that for the reasons my Lord has given this court must now determine this appeal. I agree with my Lord for the reasons he has given that the appeal must be dismissed. The most substantial ground set out in the notice of appeal appears to be that HHJ Raynor had not seen the affidavit of 3 January 2008 filed by the appellant and thus had not read or taken account of the medical evidence in that affidavit, but paragraph 14 of the judge’s judgment shows that he did indeed consider it and took the medical evidence fully into account and there is absolutely no reason to suggest that the judge did not come to the right conclusion. 24. I agree therefore that this appeal must be dismissed. Order: Appeal dismissed