TWO ISSUES: WITNESS CREDIBILITY: ATTEMPTING TO RE-OPEN A JUDGMENT ON THE BASIS OF OMISSIONS IN THE JUDGMENT: ADVOCATES NEED TO CONSIDER THE POSITION CAREFULLY

There are two aspects of the judgment of Mr Justice Mostyn in  Cazalet v Abu-zalaf [2022] EWFC 119 that are of general interest to litigators. Firstly the judge’s observations as to witness credibility. Secondly the observations in relation to re-opening a judgment after it has been handed down in draft.

the demeanour of a witness when giving evidence is unlikely to be a reliable aid either to finding facts, or exercising a discretion on uncontested facts. It is not just that a dishonest witness may have a very persuasive demeanour – that is of course, the first trick in a conman’s repertoire. But  the opposite side of the coin is equally problematic in that a truthful witness may unfortunately have a classically dishonest demeanour.”

“In my judgment the omissions (if they were indeed omissions) were of no materiality in the legal and factual analysis which I had to undertake. It has taken me some time, at the expense of other work, to deal with complaints which I regard as flimsy and meritless. In my judgment, advocates must consider very carefully, dispassionately and disinterestedly whether there are, on objective analysis, material omissions from the judgment. The omissions would only satisfy the criterion of materiality where it can be plausibly and convincingly argued that a completely different decision would likely have been reached had they been bought into account.”

THE CASE

The wife to a marriage had obtained a decree nisi in divorce proceedings but never applied for the decree absolute.  She applied for an order setting aside the decree nisi and setting aside the final financial order made in June 2014.  Her intention was to apply again for a divorce.  The husband made an application for the decree nisi to be made absolute.

THE JUDGE’S ASSESSMENT OF THE WITNESS EVIDENCE

46. And so I turn to the evidence given in this case. The wife was by far the better witness. Her evidence was generally clear and given in reasonable tones. She generally answered questions directly. In contrast the quality of the evidence of the husband was poor. He was combative, evasive, rhetorical, strident and in some respects obviously untruthful. For example, he flatly denied that the wife had a key to his home in Belgravia. Yet there is a WhatsApp message from him in which he is expressly states that she has the keys to his house.
47. However, this case is a good example of the perils of placing emphasis on the demeanour of a witness, or placing too great a reliance on a witness’s irrelevant lies or other low conduct, when finding facts or exercising a discretion. In my judgment, the demeanour of a witness when giving evidence is unlikely to be a reliable aid either to finding facts, or exercising a discretion on uncontested facts. It is not just that a dishonest witness may have a very persuasive demeanour – that is of course, the first trick in a conman’s repertoire. But  the opposite side of the coin is equally problematic in that a truthful witness may unfortunately have a classically dishonest demeanour. It is obvious to me that over-reliance on the “quality” of the evidence of a witness, good or bad, can lead to facts being found, or discretion exercised, by reference to influences that are irrelevant [11].

 

UNUSUAL ELEMENTS OF THE CASE ITSELF

The case itself had some unusual aspects
  1. There are paradoxical aspects to the respective cases. The wife’s case is that notwithstanding the terms of her petition, verified by her with a statement of truth, and found to be true by the court, the decree pronounced was erroneous, because she could, and did, live with the respondent and it was reasonable to expect her to do so. Further, it was doubly erroneous as the marriage had not irretrievably broken down. Put more simply, she argues that the decree was wrong and contrary to the justice of the case because 12 months after its pronouncement she resumed her disastrous, toxic and unhealthy relationship with the husband.
    1. I have not before encountered a case where an applicant seeks to impeach an earlier decree made in her favour.
  1. It is the husband’s case that the relationship was just as bad after decree as before. I watched with amazement as Mr Molyneux KC put to it the wife in cross-examination that his own client had behaved just as badly (if not worse) after the decree as before it. Again, that was a novel experience for me.

ANOTHER PROCEDURAL ISSUE

After the judgment was handed down a list was made by the wife’s counsel of “material omissions” from the judgment and, in essence, a reconsideration was requested.

62. After this judgment was provided to counsel in draft I received from Mr Ewins KC a list of claimed “material omissions” within the meaning of FPR PD30A para 4.6, and an implicit invitation to reconsider my decision in the light of them. I have carefully considered this list and  nothing in it gives me pause for thought as to the correctness of my decision. These, in brief, are my reasons:
i)Mr Ewins first submits that I should have referred to two draft post-nuptial agreements sent by the husband to the wife which he insisted that she had to sign as a condition of a full reconciliation. She flatly refused to do so, yet the defective relationship limped on as before. This is a hopeless complaint as, if these matters signify anything, this evidence confirmed that there was no genuine marital reconciliation.
ii)Next, Mr Ewins curiously argues that I failed to  refer to the fact that  both before as well as after decree nisi the parties lived in separate houses.  But, the fact that the parties lived in separate dwellings before and after decree nisi was clearly expressed in para 52 of the draft judgment where I wrote:
“She asserted that, physical violence apart, they resumed their marriage just as it had been before. Although they did not live together permanently she would spend on average three nights a week with him and of course they would go on lengthy holidays together.”
I have added the words “as before” in the second sentence to put the matter beyond doubt.
iii)               Next, Mr Ewins refers to what he describes as my  failure to refer to the fact that  both before as well as after decree nisi there were some positive as well as negative aspects to the relationship. These sporadic occurrences diminished not a jot the overwhelming evidence of the toxic, unhealthy and damaging nature of the relationship.
iv)Then, Mr Ewins refers to my failure to mention that after decree nisi the financial remedy order was never fully and formally implemented. Instead, the husband gave the wife financial support including gifts of value in excess of his formal liability. Para 62  refers to the fact that the financial order had never taken full effect. That the husband had supported the wife ad hoc in this way threw no light on the quality of the relationship and whether there had been a genuine marital reconciliation. It showed that the husband’s attempts to get her back (as he put it)  extended to material inducements but it revealed nothing to me about the quality of the relationship beyond that.
v)Finally, Mr Ewins complains that the  judgment made no reference to the availability of further financial claims to the wife following the husband’s concession that J is a child of the family. This is true, but so what? This availability was of no relevance whatsoever to the issues I had to decide.
63. Mr Ewins KC’s application for me to reconsider my decision in the light of these alleged material omissions is therefore refused. In my judgment the omissions (if they were indeed omissions) were of no materiality in the legal and factual analysis which I had to undertake. It has taken me some time, at the expense of other work, to deal with complaints which I regard as flimsy and meritless. In my judgment, advocates must consider very carefully, dispassionately and disinterestedly whether there are, on objective analysis, material omissions from the judgment. The omissions would only satisfy the criterion of materiality where it can be plausibly and convincingly argued that a completely different decision would likely have been reached had they been bought into account.
64. The asserted omissions come nowhere close to meeting that standard.