Chai v Peng

LORD JUSTICE McFARLANE: The application before the court this morning is to adjourn the full hearing of an appeal which is currently fixed for 12 July in this court.

The appeal relates to a finding as to jurisdiction made by Bodey J in October 2014 in the course of highly contested divorce proceedings, where, on the wife's case, her claim is to be measured in a sum of millions; whereas, on her husband's case, she is far too ambitious in seeking that figure. There is a jurisdiction race between the courts in England and Wales and those in Malaysia, which is the home country of each of these two parties.

Most unfortunately, the application arises solely because Mr Richard Todd QC, who has been instructed throughout to act on behalf of the wife, has suddenly become seriously ill and is not available to present the wife's case at the fixture in July.

Happily, the condition he has is seemingly amenable to treatment and it is predicted by his treating physician (and by Mr Todd himself) that he will be back at work and taking instructions to appear in court in September.

Fortunately, the court diary for this court has produced a window in the week of 19 October, when, if this adjournment application is granted, the appeal could be heard. The medical evidence and the confidence of Mr Todd is to the effect that if the case is adjourned to October, he will be in court to present the wife's case. Application is made this morning by Mr Nicholas Yates, junior counsel for the wife, for the current fixture to be vacated and replaced with the date in mid-October.

The application is based fairly and squarely on the grounds that Mr Todd has been the wife's leading counsel throughout these "Byzantine" proceedings, as Mr Yates describes it, he is the "principal architect" of her case, its presentation and all of the tactical decisions that have been made along the way.

It is therefore the submission on behalf of the wife that no other counsel could now stand in the shoes of Mr Todd and present the case as effectively as he could, partly because of his standing in the profession, but particularly because of his knowledge of this individual case.

Mr Yates' submission is that although, plainly, there will be a delay involved in putting the case off, the delay is not of a gross nature and that the balance of prejudice to the wife on the one hand, or the husband on the other, comes down firmly in favour of granting the adjournment.

When hearing of the need to consider an adjournment, I was initially concerned, pessimistically, that Mr Todd may not be available in October and that the court would need to take a view as to the prognosis, because although all in this room will want Mr Todd to return to full health at the earlier opportunity, there is a need to be realistic about matters when dealing with important decisions such as the adjournment of this appeal: important for the parties generally, but important because of the costs' implications of the proceedings as a whole, and, indeed, the importance of achieving some finality in proceedings which have already been running for over 2 years.

Happily, the medical evidence that I have already described has now been disclosed. Mr Timothy Scott QC, who throughout has been the lead counsel for the husband, states his position this morning as being the husband's opposition to the application for an adjournment:

That, as Mr Scott explains, is not a concession, it is an acceptance of the position and also, rightly, a position adopted in the otherwise invidious situation of those in this room who know Mr Todd well having to make submissions one way or the other about his health.

Equally, if I can record in this judgment, Mr Scott rightly and generously describes his approach to this issue in his note in these terms:

That is a sentence with which I wholeheartedly agree.

Turning to the decision on the adjournment, it really turns on the prejudice of one party or the other to be caused by the delay. The delay, in reality, is to be measured in the order of 3 or 4 months.

There is plainly the delay between July and October in the hearing of the appeal and, if the husband is successful, that is a delay in finalising his involvement in proceedings in England and Wales.

The reality, because of the intervention of the long vacation, is that if the case is heard in July it is unlikely that the parties would have the judgments of the court by the end of term, some two weeks later. It is therefore to be contemplated that the court's judgments would not be available until early October. But probably in time for the hearing booked before Bodey J in the week, as it happens, of 19 October.

If the case is adjourned to be heard in the week on 19 October, obviously the hearing before Bodey J would have to be vacated. Mr Scott tells me, and I readily accept, that the earliest it seems that could be relisted is some time in mid-February. So the true delay, if the appeal is unsuccessful, or the limit of the delay if the appeal is unsuccessful, is February, as opposed to a hearing before Bodey J in October.

The case put on behalf of the husband as to delay is partly that delay should be avoided in any event. Secondly, that there has been a lot of delay already in these proceedings. Thirdly, that he, at the age of 76, does not have time on his side and resolution of these matters is therefore a priority and the same point can be made for the wife. Finally, that he is a gentlemen who has serious health problems and that it cannot be predicted that he would live. I do not know if I am putting this too starkly, Mr Scott said it cannot be predicted that "he would not go under a bus" during the period that we are contemplating, thereby denying the wife any claim against his estate, him being domiciled in Malaysia and so there is a need to get on with it and resolve the proceedings.

Against that, Mr Yates points to previous delaying tactics deployed by the husband in the proceedings when it has suited him. Mr Scott candidly accepts that that can be said about his client but he says it can also be said about the wife; and that both of these parties have fought this case both as to the merits but also as to tactics at every turn, and indeed, apparently, have been criticised by Holman J, both of them, for the litigation tactics that have been deployed and delay that has occurred as a result.

Having rehearsed the arguments, it is now only necessary to give my decision. If the appeal could not be accommodated by this court for some many months after the July date then my view might be different, partly because it would be possible to engage the services of another QC to take over in that timescale.

But the degree of delay is in my view not excessive, and there is a premium, rightly put, by both sides upon having the lead counsel that they have each instructed throughout present to present this all important appeal before the court.

On the basis of the confidence that the court is entitled to have as to Mr Todd's recovery and his availability, I do not regard the arguments that Mr Scott has put forward as indicating that the prejudice to the husband would be greater than that to the wife of having to proceed either with an alternative silk, or, with respect to him, Mr Yates presenting the case on his own. There is a quantitative difference between having the lead silk involved and the junior having to step up to the plate and present the case.

The delay of 3 or 4 months is, in my view, acceptable in the regrettable circumstances in which we all find ourselves, and on that basis I accede to the application for an adjournment. I therefore direct that the current fixture in July is to be vacated and replaced with a listing in the week of 19 October.

LORD JUSTICE McFARLANE: I am not going to hear this application this morning. The application was apparently served on the other side towards the end of last week. It was filed with this court on Monday. I think it was only the day before yesterday that I directed that, as a matter of convenience, the question of whether I should hear it should be listed before me today when both parties are before the court and are represented.

The principal reason that I take the view that the matter cannot be dealt with by me today is that part of the husband's case, as set out in paragraph 24 of his note dated yesterday for the purposes of this hearing, is to assert that, in so far as the wife has been applying, part of the £60,000 per month payment to defray her costs of legal proceedings in Malaysia in relation to this marriage. This, says Mr Scott, is an abuse of the order and impermissible under the terms of section 22(ZA) of the 1973 Act.

It is asserted by Mr Yates that this is the first time that point has been raised. His case is that the wife has always been open that part of the £60,000 per month is calculated to include a need to make provision for costs in Malaysia.

If that is the position there are no doubt transcripts, correspondence or other written materials that the wife would wish to refer to in order to answer the point. It is not a point that is trailed at all in Mr Brakewell, the wife's solicitor's statement, in support of this application which was served presumably on 3 June, along with the application itself.

It is simply not possible for that material to have been assembled overnight and put before the court. Mr Scott says: 'Well, it should be part of the wife's case anyway, it should be at her lawyer's fingertips.' Well, that is not so if they have (and I do not know what the rights and wrong are) but if they are right in saying: 'Well, it has always been part of our case that the £60,000 included costs for Malaysia', they will not have been looking to the need to re-establish that at any variation hearing before this court, or, for that matter, before the High Court.

More generally, I consider that this is just too short notice. The husband has been able to put in a properly constituted application together with a statement and the wife's team, having received that on 3 June, would only have known that it was going to be potentially considered by the court some 36 hours (or so) ago.

I therefore take the view that it is reasonable for the wife's team not to have produced any material on the point. If they want to argue the point, as they do, Mr Yates, again, only in headline terms, has indicated the general assertion made by the husband that there is not in fact a drain on costs of the order of £60,000 a month at the moment, because the first instance proceedings are in something of a "doldrum", to use my word, with not much taking place pending the outcome of the appeal. Mr Yates wishes to challenge that understanding and to do so he needs to produce documentation.

It is the case that as a result of my decision to postpone the appeal there will be some 3 (or maybe 4) further payments by the husband in relation to this element of the order against him.

It is certainly possible for the application to vary it to be considered by a court between now and October. We are only still some 6 or 7 weeks before the vacation and it surely is possible for this relatively short point to be argued before a court in that time.

I therefore am not going to hear the application this morning. I will direct that if the husband, as I am sure he will do, wishes to proceed with it, it should be heard at High Court level, if possible, by Bodey J or Roberts J, but it is for the husband's team to fix a hearing before a judge of the High Court. For those reasons, I simply make no order other than to adjourn that matter to be heard at High Court level.