LORD JUSTICE WILSON: The husband, as it is convenient to describe him notwithstanding divorce, applies for permission to appeal against an order made by Coleridge J in the High Court, Family Division, on 8 November 2005. Today’s application has been directed to be heard on notice to the respondent, whom it is convenient to describe as the wife, and on the basis that, were permission granted, the substantive appeal would be heard immediately.

Although it may be inaccurate to describe the order dated 8 November 2005 as having been made in proceedings for ancillary relief, it certainly arose out of them. The messy and unedifying history which I am about to relate should be an object-lesson of deterrence to all those tempted to try to thwart the claims of their former spouses in proceedings for ancillary relief and the orders of the courts of England and Wales made upon them.

In about 2003 the husband, who is a UK citizen, apparently went to live in France. The wife has remained resident in the UK. An order for ancillary relief, which I will describe, was made in her favour on 20 July 2004. The husband has not complied with a material part of the order. In December 2004, when he was temporarily in England, he was, in effect by chance, arrested by the police and then, at the request of the wife, directed to be brought before the Family Division. On 20 December 2004 he came before Coleridge J. The judge made clear that, at any rate for the interim, the husband would not be permitted to leave England and Wales. In the event, as well as making an order restraining the husband from leaving England and Wales, being an order which has since expired, Coleridge J received from the husband various undertakings, including, in particular, not to leave England and Wales until further order. That undertaking remains in force; and the husband has apparently remained in England and Wales from December 2004 until today.

On 26 August 2005 the husband, then acting in person, issued an application for release from his undertaking not to leave England and Wales. That application came first before Singer J on 12 September; second, on an adjourned basis, before Coleridge J on 22 September; and third, on a restored basis, before Coleridge J on 8 November 2005. I will need to look closely, with the aid of transcripts of the two latter hearings, at what Coleridge J was then asked to determine and what he did determine, in particular on the second occasion. It is, however, the husband’s contention that his application dated 26 August was entirely refused. Upon that premise, now represented by a firm of solicitors called “Brookman” and by Mr Calhaem of counsel, the husband seeks to appeal. The argument would be that, at any rate by November 2005, the court had no continuing jurisdiction to cause him to be detained in England and Wales and thus that Coleridge J was not entitled to refuse to accede to his application to be released from his undertaking dated 20 December 2004.

I now explain the background to today’s application in greater detail.

The parties had a substantial matrimonial home in Suffolk. It was in the sole name of the wife. In 2003 she transferred it into the sole name of the husband. He thereupon mortgaged it in the sum of £300,000 and in June 2003 deposited the sum thereby raised in an account in his sole name with a bank in Zurich. The wife, I believe, contends that she knew nothing about his raising that sum of money until after he had raised it. The husband says that he raised it with her prior agreement, as being part of the matrimonial assets to which he was acknowledged to be entitled.

The parties also had £650,000 in a joint account in the same bank in Zurich. A fortnight after his remittance of £300,000 into his sole account at the bank, the husband withdrew the entire sum out of the joint account and placed it into his sole account, thus creating a total credit balance of £950,000. The wife protests that she was entirely unaware of the removal out of the joint account until after it had been effected. I do not believe that the husband denies that he removed the money without her authority. Whatever the truth in relation to his mortgage on the home, it is hard to regard his removal of the money from the joint account as other than, in part, theft of the wife’s property.

In the context of divorce proceedings in England the wife’s applications for ancillary relief proceeded. The husband elected to remain at a secret address abroad and to take no part. At one stage the wife obtained an order for Mr Henry Brookman, of the firm Brookman which had previously been acting for the husband, to attend an inspection appointment in order to produce documents from his file relating to the husband’s whereabouts and financial affairs. In a controversial judgment, reported as Kimber v Brookman Solicitors[2004] 2 FLR 221, Coleridge J decided that in the circumstances no legal professional privilege attached to any such documents on Mr Brookman’s file as were relevant to the husband’s whereabouts and to the nature, extent and location of his assets.

On 20 July 2004 a deputy district judge conducted the substantive hearing of the wife’s applications for ancillary relief. The husband chose neither to attend nor to be represented. The main orders of the court were that, subject to the mortgage created by the husband, he should transfer his interest in the home back to the wife; that he should pay her a lump sum of £333,000 within 28 days; and that he should make periodical payments to her at the rate of £42,000 per annum during their joint lives until she should re-marry or further order. It appears from a schedule then placed before the court that the sum of £333,000 was intended to bring the wife’s capital up to one half of the perceived joint capital, including, of course, the sums raised by the husband upon mortgage of the home and removed by him out of the joint account.

The order for transfer of the husband’s interest in the home has been implemented by the signature of a district judge in default of that of the husband. The lump sum remains entirely unpaid. So too do the periodical payments, although, for a reason which I will explain, the wife can hardly complain about that.

By chance, as he was seeking to depart from Dover to France on 9 December 2004, the husband was arrested. The chance arose because he was driving a car which the wife at one stage had alleged to the police to have been stolen by him although, subsequent to her complaint, the parties had resolved that issue. On the following day, namely 10 December, the wife obtained, without notice, orders for the detention of the husband in England and Wales and for his arrest. Following his arrest he was brought before Coleridge J on 20 December. In addition to making the order, and receiving the undertaking, which disabled the husband from leaving England and Wales, the judge accepted other undertakings from him. It appears that in the turbulent events of the previous few days the husband’s passport had been mislaid and so he undertook not to apply for a fresh passport. He also undertook to observe elaborate obligations to report to Brookman. His undertaking to report to it in person every working day at 9.15am has, as a result of two subsequent orders, been diluted to its present level, namely an obligation to telephone it three times a week.

Taking the view, so I infer, that the court would not be prepared to detain the husband in England and Wales otherwise than for the purpose of his attendance at proceedings in aid of enforcement of the order of ancillary relief, the wife, by Mr Southgate, indicated to Coleridge J on 20 December 2004 that she would issue an application for an oral examination of the husband. On the following day she did so. Over the next three months there were three further hearings before different judges of the Division, each largely connected with the wife’s attempt to extract from the husband details of his financial circumstances and, in particular, of the location of the fund of £950,000 which he had appropriated in the summer 2003.

It was in these circumstances that the husband put forward his current version as to the location of the fund of £950,000. He alleges that in about April or May 2004 he removed the fund of £950,000 out of his bank account in Zurich into an entity known as an “Ermessensstiftung” in Liechtenstein. His case is that he did so partly in response to the order made by Coleridge J upon the inspection appointment attended by Mr Brookman. The husband does not seem to deny that the movement of the fund to Liechtenstein, if it took place, was done with a view to obstructing the wife from enforcing any order for ancillary relief which she might later obtain. The husband’s case is that the foundation in Liechtenstein into which he then placed the fund was, at his direction, constructed upon terms that he should be entitled to about £40,000 per annum net, presumably being the projected income from the fund, but that the capital of the fund should be held irrevocably for the two adult children of his marriage prior to his marriage to the wife. His case since January 2005 has thus been that in effect his entire capital was thereby alienated; that about once every quarter he can go to Liechtenstein and ask the administrators of the foundation to release income to him, i.e. about £10,000 per quarter; but that he has no right to the capital or to call for it to be restored to him.

The above version of events, were it true, would be a blatant attempt to defy the courts of England and Wales. But is it true? Unsurprisingly the wife expresses profound scepticism. Many of the seven hearings between January and November 2005 were largely occupied with a so far fruitless attempt by the wife and the English court to extract from the husband documentation relating to this version of events. To date, apart from a letter from the bank in Zurich of a typically unhelpful character, the husband has produced no documentation relating to his sole account (now said to be closed) and to the alleged removal therefrom in April or May 2004. Furthermore he has produced no document whatever relating to the alleged creation of the foundation in Liechtenstein. His argument that, detained in England, he has been unable to extract documents either from the bank in Zurich or from the administrators in Liechtenstein is said by the wife to be bogus. Indeed, when in September 2005 the husband explained to the court that the two children of his former marriage were to date unaware that they were beneficiaries of the foundation, the wife’s expressions of scepticism became all the louder.

In January 2005, however, the husband was able in one substantial regard to go onto the offensive. By notice dated 12 January 2005 he applied for permission to appeal out of time against the order for ancillary relief dated 20 July 2004 on the basis that, as she was soon to admit, the wife had re-married ten days prior to the hearing but had not divulged her re-marriage to the deputy district judge. Her re-marriage was to an American man whom she alleges to be of no financial substance. To date the husband’s application for permission to appeal against the order out of time and, if granted, his appeal against it have not been heard. On the contrary, by virtue of an order by Singer J dated 7 March 2005, they in effect stand stayed pending disclosure by the husband of documents referable to his bank account in Zurich and to the alleged foundation in Liechtenstein and pending payment to his wife of sums, apparently now quantified at over £30,000, on any view owing by him under various orders for costs. In that such disclosure has not been given and such payment not made, the husband’s aspiration to have the order for ancillary relief set aside has become becalmed. It is on any view extraordinary that the wife should have sought to withhold from the court in July 2004 the fact that she had just re-married. She has to accept that the order for periodical payments then made is, in consequence, a dead letter. Her case would or will be, however, that the lump sum order should not be disturbed upon the footing that it was calculated by reference to her equal contribution to the marital assets and would thus not have been affected by disclosure of her re-marriage, whether indeed to a rich man or to a poor man. Nevertheless the wife presumably realises that, whatever the result of any future enquiry by the court into the propriety of the substantive award, she is likely to suffer very serious criticism which might, of course, be reflected in any event by an order for costs.

I need now to focus in some detail on the forensic progress of the husband’s application dated 26 August 2005 to be released from his undertaking dated 20 December 2004 not to leave England and Wales and indeed from his supplementary undertaking of that date not to apply for a fresh passport.

The application was first returnable before Singer J on 12 September and was then adjourned to 22 September 2005.

Before me today is a copy of a skeleton argument prepared on behalf of the husband, who was then appearing in person, and which was apparently placed before Singer J on that date. It is clearly a skeleton argument in support of an application that the husband should be allowed to return permanently to France. By the skeleton argument the husband argued that there were no ongoing proceedings to which his detention in England and Wales could be regarded as ancillary and that such detention was contrary to a variety of his human rights under the European Convention 1950, in particular Articles 3, 5, 6, 7 and 8.

At the hearing before Coleridge J on 22 September 2005, the husband appeared in person but with the support, as a note-taker, of a secretary employed by Brookman. The transcript shows that almost immediately the judge enquired of the husband as to the nature of his application. The following exchange took place:

It is important to note the parameters of the dialogue that then ensued between the judge on the one hand and the husband, followed by Mr Southgate, on the other. The subject of the dialogue was one short trip to Liechtenstein, including also, as the judge suggested, to Zurich, followed by a return to England and Wales. Thus there was a discussion about:

when the husband would go;

when he would return;

how much money he would ask to be paid by the purported administrators in Liechtenstein;

whether he should be obliged to pay certain of those monies to the wife in satisfaction of costs orders;

what documents he could extract from the administrators;

whether, if he also went to Zurich, he could obtain the bank statements relating to his account;

whether, as Mr Southgate suggested, he should be accompanied on the trip by a representative of the wife; and

what security he could provide for his due return, whether by himself or, as he himself postulated, by a friend acting as his surety.

The central decision of Coleridge J on 22 September 2005 was that the husband’s application should be adjourned so that, in the light of the dialogue, he could put before the court by affidavit such specific proposals for the short trip as might find favour with the court. There was also discussion about the husband’s alleged mislaying of his old passport and thus his need for a fresh one. The judge indicated that, were he on a later occasion to authorise the trip, he would want a passport to be readily available for the husband’s use. He thus indicated that in principle he authorised the application for a fresh passport, provided that in the interim it was kept in safe hands, not to be used by the husband. The judge’s proposal was that the husband’s application for a fresh passport should be channelled through Mr Henry Brookman; that the passport should be required to be sent to Mr Brookman; and that Mr Brookman should undertake to keep the passport safely until the court should have authorised the trip. Apparently after turning to the secretary of Brookman who was assisting him, the husband indicated to the judge that both he and, so he understood, Mr Brookman would be content with such a course. Thus that issue was resolved on the basis of an invitation on the judge’s part to Mr Brookman formally to give undertakings along those lines.

We have before us a bundle said to be precisely identical to the bundle which was before Coleridge J on 22 September 2005. Although the husband’s application dated 26 August is in the bundle, the skeleton argument apparently placed before Singer J is not in the bundle. Nor, as Mr Calhaem concedes, is there any indication in the transcript of the proceedings on that date that Coleridge J was referred to it at all. The husband, an intelligent and educated man, never submitted to the judge that there was a wider issue which he wished to raise, namely whether there was any justification at all for his continued detention in England and Wales and whether accordingly he should be allowed to return indefinitely to his home in France. On the contrary he expressly assented to the judge’s treatment of the issue raised by the application as the narrow issue of whether he should be allowed to make one short trip to Liechtenstein and Switzerland.

Indeed, just prior to the delivery of judgment, Mr Southgate made the following submission:

Thereupon, on 4 October 2005, the husband sought to appeal against the order dated 22 September. He filed at the Civil Appeals Office an Appellant’s Notice, to which was attached the skeleton argument apparently put before Singer J on 12 September 2005. By his Appellant’s Notice, the husband complained that Coleridge J had given no reason for dismissing his application and had not adequately addressed the matters set out in the skeleton argument. He submitted that the judge was wrongly using his coercive powers as a means of civil debt collection and that, in declining to release him from his undertaking so that he could return home, he was acting beyond his powers. But, although he also paid the fee for issue of an Appellant’s Notice, the court declined to issue it. By letter to him dated 4 October, the court explained that, without a sealed copy of the order dated 22 September, it was unable to do so.

Before the judge, of course, the husband had made no application for permission to appeal. Paragraph 4.6 of the Practice Direction supplementary to Part 52 of the CPR provides that an application for permission should be made orally at the hearing at which the decision to be appealed against is made. The need for such an application was stressed in Re T (Contact: Alienation: Permission to Appeal)[2003] 1 FLR 53. It is obvious that the skeleton argument placed before Singer J had been crafted by the husband with legal assistance; and indeed present in court with him on 22 September was an employee of Brookman. It would be surprising if by then the husband had not been apprised of the need to apply to the trial judge for permission to appeal; but perhaps it would be fairer to give him the benefit of the doubt in that regard.

In the event it proved impossible to agree the terms of the order reflective of the decision made on 22 September 2005. The wife’s solicitors sent Mr Southgate’s version of it to Brookman, who replied, enclosing amendments which apparently did not find favour with the wife’s solicitors. In its letter Brookman also informed the wife’s solicitors that Mr Henry Brookman declined to give the undertaking in relation to the proposed passport which the judge had invited. Thus the wife’s solicitors restored the matter for further hearing before Coleridge J on 8 November 2005.

The transcript of the hearing on 8 November 2005 shows that the judge was acquainted with the failure to agree the terms of the order made on 22 September and, indeed, the wholesale lack of progress since that date. When asked to explain why he had not even filed the proposed affidavit as to the details of his proposed trip to Liechtenstein and Switzerland, the husband said:

Apart from one passing reference by him at the hearing on 8 November 2005 to the effect that he had been restricted to England and Wales for virtually eleven months and that enough was enough, the husband again allowed the entire discussion at the hearing on 8 November 2005 to revolve around the arrangements for the one brief trip. The husband indicated that he might well be able to find a friend to act as surety; and the judge allowed him to identify the friend to the court upon the basis that at that stage the identity would be kept secret from the wife and her advisers. There was also discussion about the consequences of Mr Brookman’s refusal to accede to the judge’s invitation to give an undertaking referable to the proposed passport. The judge in effect indicated that the onus lay on the husband to propose an alternative person prepared to act as a conduit for the application for the passport and, upon its receipt, to hold it to the order of the court.

The judge decided to adapt and extend the draft orders exchanged between the wife’s solicitors and the husband and thus directed that there should be one composite order dated 8 November 2005. Five paragraphs of the order invite attention:

by paragraph 1, the “matter” was adjourned to the first open date after 35 days (to be heard by Coleridge J if available);

by paragraph 3, the husband was directed within three weeks to provide disclosure to the wife in accordance with an attached “Schedule of Outstanding Disclosure”, primarily directed to collecting documentation relating to the husband’s bank account in Zurich and to the purported foundation in Liechtenstein; a penal notice addressed to the husband was attached in relation to this paragraph;

by paragraph 4, the husband was ordered within three weeks to file an affidavit, giving full details of the proposed trip to Liechtenstein and Switzerland; of the amount of money proposed to be collected; of the proportion proposed to be paid to the wife; of his willingness or otherwise to be accompanied by a representative of the wife; of the surety which he proposed to offer to the court; and of related matters; a penal notice was also attached in relation to this paragraph;

by paragraph 5, the wife was directed to respond in writing within seven days of receipt of the husband’s affidavit referred to in (c) above; and

by paragraph 7, the husband’s application dated 26 August 2005 was “refused”.

Speaking for myself, I find the “refusal” of the husband’s application dated 26 August 2005 puzzling. At the hearing on 22 September Mr Southgate had asked for the application to be refused but on that occasion the judge had not, at least expressly, agreed that it should be refused. Following that hearing Mr Southgate drafted the order purportedly made on 22 September as including a refusal of the application dated 26 August. The refusal on the face of the order dated 8 November is in my view inconsistent with the fact that the judge was expressly adjourning the “matter” to a date as soon as possible after assembly of the evidence for which he was providing. In substance, as on 22 September 2005, the judge was proceeding, without contrary submission on the part of the husband, upon the basis that the only part of the husband’s application dated 26 August which was sought to be pressed was for permission to make the one short trip.

Thereupon, at last furnished with a sealed copy of the order of Coleridge J, the husband successfully sought issue on 1 December 2005 of his Appellant’s Notice.

Although, for the purposes of this court, the clock in principle stops at the date of the order under proposed appeal, we have been acquainted with the fact that on 4 January 2006 the wife issued an application for the husband’s committal to prison for breach of the order dated 8 November 2005 and in particular for alleged failure to provide the financial information and documentation which had been ordered in paragraph 3. The application has, by consent, been adjourned pending determination of today’s application and proposed appeal. We have also been told that, in case a court should ever be persuaded that the husband had indeed transferred the fund into a Liechtenstein foundation, the wife on about 23 March 2006 issued an application for that disposition to be avoided in order that the fund might be directed to be restored to the husband and thus that, subject to the husband’s application to set it aside, she might thereupon enforce her lump sum order against it.

Thus at last we arrive at the gravamen of this proposed appeal. With the permission of the court Mr Calhaem has replaced the skeleton argument attached by the husband to the Appellant’s Notice (being the skeleton argument apparently placed before Singer J) with a further skeleton argument in which reliance is placed not, as before, upon rights under the Convention of 1950 but rather upon the qualified right of European citizens to free movement around the states of the union and upon a variety of authorities which appear to stress that the jurisdiction to detain a person in England and Wales can be exercised only in the short term and as ancillary to a free-standing proceeding which his absence from England and Wales would otherwise frustrate.

These are important arguments. But in my view they are not properly raised by way of appeal at this stage. For the arguments have not been addressed by the court below. Nor, crucially, was the court invited to address them. I have sought to explain how, at both hearings before Coleridge J, the husband encouraged the judge to conclude that the issue which he had to determine was whether permission should be granted for the one short trip abroad, followed by a return to England. The husband did not invite the judge at either of the hearings even to peruse his written skeleton argument in favour of any wider order. Had the husband, in accordance with the Practice Direction, on either occasion sought permission from Coleridge J to appeal, his aspiration to have the judge consider the wider issues would no doubt have been detected; argument upon them could even at that stage have been received from both sides; the judge would have delivered judgment upon them; and this court would then have had a proper foundation for considering whether to grant permission to appeal. Indeed any proceeding in this court at this stage in relation to these important questions is not only inappropriate but, in the light of the pending application for committal, to which the husband’s continued presence in England and Wales is on any view ancillary, is also entirely academic.

In my view the arguments which the husband wishes this court to consider should first be placed before the judge for his consideration at the hearing of the wife’s application for committal. The judge might elect to consider first the application for committal but, unless that was to lead to an order for the husband’s immediate committal to prison, he could then proceed at once to determine the wider arguments against any continued detention of the husband in England and Wales. That hearing, so the Clerk of the Rules of the Family Division has informed this court today, can take place before Coleridge J for one day beginning at 2.00pm on 11 May 2006 and continuing until 1.00pm on 12 May 2006. Furthermore, although I entirely understand the reasons why on 7 March 2005 Singer J in effect stayed the husband’s application for permission to appeal out of time against the order for ancillary relief, I also consider that it would be open to the husband to apply to Coleridge J for variation of that order and that it might be arguable that the court should at last determine whether the order for the husband’s payment to the wife of a lump sum should stand. Otherwise all the wife’s efforts during the last 15 months – and in the future – to put herself into a position in which she might enforce that order might be said to have a contingent quality.

When in his oral argument today Mr Calhaem began to sense the court’s concern about his attempt to appeal in relation to issues which had not been placed before the judge for determination, he sought to suggest what was far from apparent in the Appellant’s Notice, namely that he was also attempting to appeal against the judge’s determination of the limited issue as to the one trip. But, quite apart from the profound difficulty of appealing against the judge’s adjournment of the hearing of that issue in order that his client could file evidence about it, it is clear that the only way in which Mr Calhaem could launch an assault on the judge’s approach to it would, as before, be by reference to the wider arguments never presented to him. Thus, so it seems to me, that possible road out of Mr Calhaem’s difficulties proves to be a cul-de-sac.

Such are the reasons why I would refuse permission to the husband to appeal. I add only this. This arid and expensive litigation, probably causative of the greatest inconvenience and stress not only to the husband, who is aged 74, but also to the wife, cries out for final resolution. The issue relates to an order, which the wife may or may not in the end be able entirely to defend, for payment to her by the husband of £333,000, together, of course, with sums owing under various orders for costs. In the long battle which lies ahead in various jurisdictions in relation to the enforcement of whatever is finally determined to be due from the husband to the wife, each of them, as a matter of strategic power rather than of legal right, has strengths and weaknesses. Surely, with skilled advisers and/or a mediator, a consensus could at last now be found whereby one sum was agreed to be paid – and more importantly was paid – by the husband to the wife in full and final settlement of all her rights.

LADY JUSTICE HALLETT: I agree. I am concerned about the length of time for which Mr Kimber has been subject to restraint. The sooner the wider issue, as it was described by my Lord, Wilson LJ, is resolved, the better. Mr Kimber must plainly remain in the jurisdiction pending his ex-wife’s application to commit him to prison. As soon as that matter is resolved – which, we are informed, can be in a matter of weeks – so must be his application to be released from his undertakings generally.

LORD JUSTICE BROOKE: I agree. It is well established that in family law proceedings a court has power to restrain a party from leaving the jurisdiction in certain circumstances; see B v B (Injunction: Restraint on Leaving Jurisdiction)[1997] 2 FLR 148. I agree with Wilson LJ that counsel for the husband has raised an important issue fit for the consideration of this court on an appropriate occasion, which relates to the scope of this jurisdiction, particularly if it restrains a citizen of the European Union from moving to another part of the Union. However, I am quite satisfied that this issue was not argued by Mr Kimber before Coleridge J at either hearing last autumn, and since this is an appeal court we are not able to say one way or the other whether the judge was wrong in relation to a decision he never made and as to which he heard no argument, even if it was canvassed in the papers by which the application was originally initiated.

It is clear to me that this issue needs to be decided by a judge of the Family Division in the context of the present case at an early date. We have been told that a date is available in less than three working weeks’ time for the hearing of the wife’s application for the committal of the husband to prison, at which this issue can also be raised if the husband is still at liberty to do so. In these circumstances I see nothing unjust in leaving the undertaking in place until after that hearing. I too would therefore dismiss this application.