THE FIRST BUNDLE CASE FOR 2017: A BUNDLE THAT WAS NEVER DISCLOSED AND HAS GONE MISSING
At some time during the year there is bound to be a judgment about bundles. However the judgment of the Court of Appeal today in Iqbal -v-Iqbal  EWCA Civ 19 contains a great surprise. Amongst other problems with the case the trial bundle was never shown to the respondent, appeared to be incomplete and had disappeared by the time of the appeal. It was not possible to state what had been in the bundle and what the trial judge had read. It is unsurprising that the order was set aside.
The Court was considering an appeal from a Circuit Judge who had made an order on the wife’s application for a final financial remedy order.
“The final hearing
Directions for the final hearing were made on 31 October 2014. Given the excusal of the husband from the interim hearing, his attendance at the first appeal, his subsequent absence and the nature and extent of the documents which he had filed with the court in purported compliance with its directions, it would have been appropriate for the court at the directions hearing to consider how his evidence was going to be received. The options might have included, for example, a video hearing: allowing him to cross examine the wife and for him to be cross examined by her. Directions of this kind were not considered, with the consequence that a less than optimal circumstance arose when the final hearing began.
Had the court made directions to abide the event of the husband’s continuing absence, they could and should have included a warning that inferences of fact might be drawn from his absence. That would have anticipated any deliberate or tactical absence and set the scene for the court to act proportionately: ie to undertake the final hearing in his absence without adjournment and drawing such inferences as might be reasonable. No real attempt at active case management by reference to the Family Procedure Rules and Practice Directions was attempted. It is hardly surprising, therefore, that good practice was not a feature of the management of this case.
The one attempt at case management that did occur was the judge’s direction on 31 October 2014 that the wife file a section 25 statement setting out her narrative evidence about the factors that are to be found in section 25 of the Matrimonial Causes Act 1973. This was intended to be evidence of all facts and matters upon which she intended to rely at the final hearing, including her resources and those available to the husband and their respective assets in list form cross referenced to the evidence filed. It was to be filed by 28 November 2014. The husband had five weeks to reply. The wife filed her statement only eight days before the final hearing and she did not serve it on the husband. The content can reasonably be argued to be insufficient to establish her case against the husband but in any event the husband had no notice of it and the wife was never given leave to rely on it out of time.
A core bundle was also directed to be filed by the wife. This court has been told that a bundle did exist at the final hearing but the wife refused the husband’s request made before this appeal began to disclose the same. No other copy now exists on the court file. Given that there is no way of reliably establishing what was in the bundle that was in fact used and given that the judge makes no reference to any document filed by the husband between 2010 and 2015, this court has declined to speculate about the contents of the same. There are at least 17 important documents that were in fact filed by the husband including an unlisted and unresolved application for a review of the interim order made by DJ Roberts, a legal opinion filled for an earlier hearing about the nature of ‘Benami transactions’ in Pakistan, a statement of evidence from the husband’s father (made at the direction of the court in 2011), affidavits, statements and replies to questionnaires. The husband’s case is that his documents were omitted in whole or in part.
It can be ascertained from the brief transcript of the final hearing before the judge which this court has read with care that the judge made no reference to the husband’s documents or the contents of the same during the hearing. The recital to the order made at the conclusion of the hearing states that the husband had failed to comply with the court’s orders for financial disclosure. Whether the documents filed by the husband did or did not fail to comply with the orders of the court required an analysis if that was going to be held against him. There was no analysis. Furthermore, the husband could not reply to a witness statement filed late by the wife of which he had no notice.
Financial remedy proceedings in the Family Court are in part inquisitorial, however hotly contested the issues may be between the parties. The court has an obligation to satisfy itself about the statutory factors that are relevant to the decision it makes or the settlement it approves given that the parties have an obligation of full and frank disclosure. At any stage during the final hearing the judge could have asked about the existence and content of the basic evidential materials, for example the husband’s Form E. He did not. The manner in which assumptions were made by the judge can be ascertained from this exchange on the transcript between the judge and the wife:
“Judge Brasse: He has not provided any information in this case at all.
Ms Iqbal: Yes”
In like manner to the interim hearing, the wife was not sworn and relied upon her submissions and signed documents which contained no truth recital. There was no real attempt by the court to test anything that the wife said. The process of determining that the husband had assets of £6,440,000 was little more than an inadequate (and it appears incorrect) computational exercise based upon what the wife said to the judge in court. In one exchange the judge says “What is the evidence? (And) you have not got it” and in another he comments: “I appreciate that you do not have any actual original documents to support these, but you assert that…”. The judge was on notice of the evidential failings inherent in the process that was being conducted and yet he failed to act upon his own warnings.
The judge failed to give a formal judgment with the consequence that this court has had to analyse the transcript to ascertain whether there is a clear thread within the discussion which identifies the conclusions to which the judge came and sufficient reasoning for the same. This court embarked on that task because it would have been unfair to the parties to condemn the decision for a failing of process which could have been easily redressed by asking the judge to collect together that which he had already decided into the form of a determination with adequate reasons. It should not be taken as read that this court will undertake that process lightly given the clear strictures of this court which apply as much to family proceedings as any other civil process: see English v Emery Reimbold & Strick Ltd  EWCA Civ 605. Parties are entitled to a determination, no matter how short, that is capable of being scrutinised so that it can be understood and so that advice can be given about it and ultimately an appeal court can ascertain whether it was sufficient in law and on the facts.
In this case it is not possible to deduce what findings of fact were made by the court and what evidence was accepted or rejected in that process. There are major questions that are unexplained and which needed determination, for example: who had the legal and beneficial ownership of certain assets in Pakistan; what, if any, resources were available to the husband from his extended family; and what was an inherited pre-marital asset and what was part of the marital acquest. It is impossible to know whether the concept of sharing which the judge used in respect of all of the alleged assets, without distinction, was appropriate. Given the importance of ascertaining the wife’s needs in the context of pre-marital assets, and both parties needs having regard to the responsibilities they each have for the children, the absence of any analysis of the parties’ needs and the husband’s ability to make the payments ordered was a fatal absence of reasoning on the facts of this case.
I have highlighted only the most glaring omissions that characterise the decision making process in this case. Counsel who now appears for the husband, Mr Michael Glaser, has highlighted others and the court is grateful to him for the care with which he has forensically examined what has occurred.
On any numbers of bases, therefore, the decision made at the conclusion of the final hearing is procedurally unfair to the extent that this court set it aside and directed that the application for a financial remedy order be re-heard by a specialist family judge at the Central Family Court allocated by the Family Division Liaison Judge for London who would be able to give directions in preparation for the same. For the reasons that I have canvassed, no order was made on the appeals relating to the orders of DJ Roberts and King J save that the stays on their enforcement remain in place pending the new determination.”
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