Olu-Williams v Olu-Williams, Court of Appeal - Family Division, September 21, 2018, [2018] EWHC 2464 (Fam)

Resolution Date:September 21, 2018
Issuing Organization:Family Division
Actores:Olu-Williams v Olu-Williams
 
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Case No: FD13D04310

Neutral Citation Number: [2018] EWHC 2464 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 21/09/2018

Before :

MR JUSTICE WILLIAMS

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Between :

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Helen Alexander (instructed by Direct Access) for the Applicant

Michael Horton (instructed by Bindmans) for the Respondent

Hearing dates: 23 - 27 of July 2018

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Judgment

Mr Justice Williams :

General

  1. This is my judgment on an application made by Melanie Olu-Williams (the Applicant) for the committal to prison of her ex-husband Oscar Olu-Williams (the Respondent). That application was issued on 17 October 2017 and the grounds of the application for committal set out 12 allegations that the respondent has committed acts of contempt of court in failing to comply with specific orders or undertakings. The grounds as they were presented before me had been slightly amended as shown on the table below.

  2. The applicant was represented by Ms Alexander, who was instructed for the first time last Friday on a direct access basis. The respondent was represented by Mr Horton, who was instructed by Bindmans solicitors. Criminal legal aid was granted to the respondent in accordance with proper practice by Mrs Justice Parker.

  3. I have been provided with five lever arch files comprising the trial bundle. Prior to, and in the course of, the hearing I have been able to read much of that documentation, in particular the affidavit of the applicant in support of the committal application which also adopted three previous statements made by the applicant in 2016 and 2017. I've read the respondent's statement in relation to the enforcement application and his affidavit in respect of the committal. Mr Horton made clear in his skeleton argument that the court was invited to read them but that they should not be taken into account in evidential terms prior to the submission of no case to answer and the respondent's election as to whether or not he would give evidence or would exercise his right to remain silent. I had the benefit of some preliminary documents including a summary prepared on behalf of the applicant by her previous counsel which set out the evidential basis of the committal. The applicant herself had filed a position statement and a chronology. Mr Horton provided a comprehensive and detailed 21-page Skeleton Argument together with a bundle of 11 authorities. As will become clear in this judgment the reason for its length and complexity was the multiplicity of substantive and procedural deficiencies which Mr Horton identified in the committal application. In the course of the hearing I was provided with further authorities, some further evidence in the form of emails and letters, some schedules provided by Mr Horton and following the conclusion of submissions of no case to answer, written applications to amend the grounds to particularise ground 12, and to be permitted to proceed with ground seven as if a judgment summons had been issued.

  4. On Tuesday at the commencement of the case Ms Alexander made some preliminary oral applications

    a. to adduce fresh evidence in respect of ground one

    b. to amend ground one to stipulate a different sum

    c. to withdraw allegations two and six on the basis that the original orders did not contain a penal notice.

  5. FPR 37.27 (1) gives the court a permissive power to allow the applicant to rely on evidence which has not been served in accordance with the FPR or the practice direction. Although the application to adduce fresh evidence in respect of ground one was formally opposed, in reality Mr Horton himself also sought to rely on additional evidence in respect of that ground and so I permitted both parties to adduce further evidence. It did not appear to me that there was any injustice to either party in doing so.

  6. FPR PD37A paragraph 10.2 (2) provides a permissive power to allow an amendment to the application notice. I also permitted the applicant to amend the amount stated in ground one to take account of a sum that had been paid prior to the making of that order. I was satisfied that there was no injustice to the respondent in making that amendment.

  7. FPR PD37A paragraph 13.3 provides that a committal application may not be discontinued without the permission of the court. Taken together with the power to grant permission to amend an application notice it seems to me that the court's permission is required to amend an application notice to delete a ground. I granted permission to withdraw those allegations, as again it seemed to me there was no injustice in so doing, indeed quite the reverse given that FPR 37.9 (1) provides that an order cannot be enforced by committal unless there is prominently displayed on the front of the border a penal notice. This is mandatory in respect of enforcement by committal. It is not mandatory in respect of judgment summonses but the applicant had not issued a judgment summons; more of which later.

  8. The Skeleton Argument filed on behalf of the respondent by Mr Horton intimated that he might also have preliminary applications relating to the validity of various of the grounds of committal. I concluded following brief submissions that it would be more proportionate to deal with those applications at the point when a submission of no case to answer might be made; it appearing self-evident that such a submission was going to be made. I concluded that rather than hear submissions and deliver a substantive judgment on those points followed by a further substantive judgment at the no case to answer point followed potentially by further substantive judgment in relation to any grounds still remaining that it would be more proportionate and no injustice would be occasioned by dealing with Mr Horton's points at that stage.

  9. Following those preliminary skirmishes, the applicant gave evidence. Following the conclusion of her evidence Mr Horton advanced a submission of no case to answer. In the course of the submissions of no case to answer, Ms Alexander asked for permission to withdraw further grounds namely 1, 5, 10 and 11. I granted permission for her to do so. She also made an oral application for permission to amend ground 12 to particularise it to refer to the distress the applicant suffered as a result of a County Court judgment being entered against her and her car being repossessed in respect of the Lancing College School fees. She made a bare oral application to treat the committal application in respect of ground seven as a judgment summons.

  10. Thus the decision that I had to make was to determine whether there is a case to answer in respect of grounds 3, 4, 7, 8, 9, and 12. Between the close of submissions and my delivery of my decision, I received applications on Thursday morning from Ms Alexander seeking permission to amend the grounds to particularise ground 12 in line with the oral application she had made but also seeking to add further particulars in relation to an assertion that a further County Court judgment had been issued in March or April 2018. She also sought written permission to treat the committal application in respect of ground seven as a judgment summons.

  11. I gave my decision on those submissions with brief reasons during the course of the hearing on the basis that I would deal more fully with the law and submissions in this judgment. I dismissed grounds seven and eight. I refused Ms Alexander's application to treat the committal application as a judgment summons application. I granted her permission to particularise ground 12. Although she had not sought permission I also varied ground 9 to incorporate the particulars which had been referred to in the applicant's affidavit. I refused her application to add wholly new particulars in relation to ground 12 on the basis that it was made far too late in the day.

  12. After a short adjournment Mr Horton on behalf of the respondent filed formal admissions in respect of grounds three, four and nine. He also admitted various facts in relation to ground 12 but did not accept that they amounted to contempt. The respondent then gave evidence in particular in relation to his ability to pay the school fees. He was robustly cross-examined by Ms Alexander at some length. At the conclusion of his evidence I heard submissions in relation to ground 12. Mr Horton submitted that the form of indemnity contained in the undertaking only carried with it a financial obligation and that given the wife's acceptance that she had not paid any of the school fees, nor suffered any financial loss, the respondent was not in breach. He also submitted that it was clear on the evidence that the respondent was unable to pay the school fees which had led to the issuing of a County Court judgment and the seizure of the applicant's car by bailiffs, and thus it was submitted that the applicant could not establish beyond reasonable doubt that the respondent had been able to pay the fees or the judgment and had wilfully refused to pay. Ms Alexander submitted that the evidence demonstrated that the respondent did have access to funds and thus could have paid. I gave my judgment in court at the time. I concluded that the applicant had not established on the evidence so that I was sure (or beyond reasonable doubt) that the respondent had the means to pay and had wilfully refused to pay. I therefore dismissed ground 12.

  13. That left grounds 3, 4, and 9 in respect of which the respondent admitted he was in contempt of court. After hearing mitigation from Mr Horton, and seeking the applicant's views in terms of whether sentencing should be adjourned or not, I delivered a judgment in which I concluded that the breaches were not sufficiently serious to warrant immediate committal to prison or suspended committal. I concluded that they were...

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