WCP v. TPW

FCMC 8839/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO 8839 OF 2013

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JUDGMENT
(Consent summons)

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Introduction

1. This is an application by a respondent husband who wishes to renege on an agreement reached between the parties on ancillary relief. The wife, in turn, asks for a slight amendment to that agreement.  

2. This litigation has been ongoing for a considerable period of time.  It began with a defended suit which came before the court for trial on 8 April 2014.  By that stage, the parties had been separated for over one year.  At that hearing, the husband sensibly agreed to proceed on the basis of one-year separation with consent.  He gave an undertaking to that effect which was included in the consent summons now in dispute dated 8 April 2014.  Unfortunately, on the 5 May 2014, the husband reneged on that agreement and his undertaking.  He filed a notice of withdrawal of consent and a notice of intention to defend.  Although the husband was warned of the possible costs consequences of his actions, he refused to change his mind.  The issue of the suit proceeded to trial and on the 7 January 2015 I granted a decree nisi of divorce based on the husband’s unreasonable behaviour, with costs to the wife. The husband sought leave to appeal that judgment. He also asked to rescind the decree nisi. On the 26 February 2015 those applications were refused.   

Background

3. In the judgment of the 7 January 2015 I set out the background to the case, which for ease of reference I will repeat as follows:

3. The parties married on XX April 1994, and the only child of the family, a daughter, was born four and a half months later.  She is now 20 years of age and a full-time student.  By all accounts, the marriage has been a very troubled one for many years, and the wife previously left the husband on at least two other occasions.  The wife accuses the husband of ongoing and significant abuse.  She accuses him of denying her, her basic human freedoms and of controlling and domineering behaviour.  She finally left the matrimonial home for good on 31 January 2013, and she has had no contact with the husband since, something that he appears to take great exception to. 

At paragraph 17 I added that:

17. Insofar as the husband is concerned, it seemed to me that he might have some mental health issues.  I previously asked for an Official Solicitor’s report, but they were unable to find any record of the husband in the mental health system.  However, the husband produced documentation that was largely incoherent and sometimes irrelevant in support of his case, and he was at times difficult to understand in the witness-box or in the submissions that he made. Further, he seems to have little insight into the consequences of his own actions.  For example, he blamed the wife for not agreeing to proceed on the basis of two-year separation but accepted no responsibility for the fact that he had reneged on his undertaking to proceed with the divorce on the basis of one-year-separation with consent.  He seemed to be fixated on the fact that the wife had apparently refused to meet with him or speak to him directly since issuing the divorce proceedings, and this appears to be the reason why he withdrew from his previous agreements with respect to both of the divorce and finances.  This, sadly, goes some way to supporting the wife’s submission regarding the husband’s overly controlling personality.

4. That observation continues to hold true. On this occasion the husband’s oral representations were generally impossible to follow. Likewise the documentation that he filed was a little strange.

Background to the litigation

5. As indicated above, on the 8 April 2014 the husband initially reached terms with the wife outside the door of the court on all matters. As can be seen from the transcript the court asked several times if there was an agreement between the parties and the husband answered in the affirmative. Given that at that stage the parties had agreed to proceed on the basis of one year separation with consent, the court said that it had made a note of the consent summons on the court file and that an order in those terms would be made upon the pronouncement of the decree nisi in the new proceedings. A copy of the consent summons was given to both parties. At the hearing on the 26 March 2015 the husband confirmed that he no longer wished to abide by the terms of that consent summons whereas the wife asked for an order in terms. On the 10 April 2015 the husband issued a summons which sought the following:

1. Ratification for Nullification of SUMMONS BY CONSENT dated 8 April 2014

2. Rectification for Petitioner Representative’s Misapplication of nonexistence of the aforesaid SUMMONS BY CONSENT.

3. Requisite Order sought by Respondent before Judge

in light of Representative’s relevant act on or before the Hearing of 6th May 2015.

6. On the 2 June 2015 the wife issued a summons as follows:

1. The Consent Summons dated 8^th April 2014 do stand and amended by adding the words “after paragraphs 1 to 3 of this Order have been complied with” in paragraph 4 thereof between “no order as to costs” and “(i) Flat X on XX Floor of Block X, Y Garden, No. XX Siu Sai Wan Road, Hong Kong” or as the Court thinks appropriate;

2. Costs of this application be to the Petitioner; and

3. The Petitioner’s own costs be taxed in accordance with Legal Aid Regulations.

The issues

7. The main issue to be determined then is whether or not the husband should be bound by the consent summons dated the 8 April 2014 and whether an order should be made in those terms either at all, or alternatively whether the order should be amended slightly as proposed by the wife.

The law

8. Rayden puts it thus in the 18^th edition:

Introduction

15.18  This section deals with financial agreements made between spouses either in contemplation of divorce and ancillary relief proceedings, or in the course of subsisting ancillary relief proceedings.  In an effort to save costs and avoid the acrimony of contested litigation, ancillary relief practice and procedure is designed to facilitate and encourage parties to reach an agreement in settlement of their claims for ancillary relief.  The vast majority of ancillary relief claims are settled by agreement rather than by court adjudication.

Holding parties to their bargain: weight given to agreements

15.19  Reference has previously been made to the fact that such an agreement cannot oust the jurisdiction of the court to entertain an application for ancillary relief: it is, however, an important general proposition when exercising that jurisdiction and determining an application for ancillary relief that formal agreements, properly and fairly arrived at with competent legal advice, should not be displaced unless there are good and substantial grounds for concluding that an injustice will be done by holding the parties to the terms of their agreement. In the context of the matters listed in s 25(2) of the 1973 Act, the existence of an agreement is a very important piece of conduct and a very important factor in considering what is the just outcome of the proceedings.

9. Further the consent to the agreement must be voluntary and there must be full and frank disclosure of all material facts including the parties’ financial circumstances. At paragraph 15.23 Rayden adds:

Adequacy of the bargain

15.23  The mere fact that one party might have done better by going to court is not of itself generally a ground for permitting that party to resile from what was agreed.  In Edgar v Edgar Oliver LJ stated:

‘It was a result which commended itself to her at the time and it does not become an unjust result merely because she could have done better if she had taken the professional advice which she was given.’

What is or is not a good bargain does not depend entirely on the financial aspect: social, personal, religious and cultural considerations may apply.  In litigation, some parties are prepared to pay a price for certainty and finality, and the court should bear in mind the undesirability of stirring up problems with parties who have reached an accord.

10. In the case of Xydhias v Xydhias [1999] 2 All ER 386 where the parties reached terms and submitted a consent summons to the court, only for the husband to then change his mind at the 11^th hour, the Court of Appeal found that the consent summons entered into should be upheld. Similarly in this case there was a consent summons on the court file that had been entered into by the parties and accepted by the court. The husband then changed his mind.

Discussion

11. In this case however it is clear that the husband did not have the benefit of legal advice. This was his choice. Furthermore the official solicitor’s office was unable to provide any information on the mental condition of the husband and therefore they had no basis upon which they could intervene. Thus there was no option but for the matter to proceed with the husband acting in person.

12. The husband says that he was compelled or otherwise coerced by the wife’s solicitors to enter into the consent summons. I accept the wife’s lawyer’s assertion that this was not the case.  As I have said it is of note that the husband has a history of reneging on past agreements – his refusal to comply with his undertaking to consent to a divorce on the basis of one year separation being a case in point. It seems that the husband’s true intent was always to try to reconcile with the wife and to persuade her to return to live with him at the former matrimonial home. In order to do this he needed to be able to speak to her directly. It seems that when he realized that reconciliation was not possible that he then sought to go back on his previous agreements.

13. In so far as financial disclosure is concerned both parties have filed Form E’s. There was no request for further disclosure and it seems to have been accepted that there had been full and frank disclosure of their respective financial circumstances, which were quite straightforward

14. I am therefore satisfied that in all of the circumstances of this case an order should be made in terms of the original consent summons save for the amendment sought by the wife’s lawyers, which seeks to safeguard the wife’s position pending any possible enforcement action.

Costs   

15. Given that the wife had no option but to proceed in the way that she did and given the husband’s unreasonable stance in this matter I shall make an order that the husband shall pay the wife’s costs of and associated with this application on a party and party basis to be taxed if not agreed and the Petitioner’s own costs be taxed in accordance with Legal Aid Regulations.