S v S

In this matter, I am concerned with an appeal against two orders of His Honour Judge O’Dwyer dated 23 January 2017. The Appellant is Mr S, who shall hereafter refer to as the ‘husband’ for the sake of clarity. He is represented by Ms Finola Moore of counsel. The Respondent to the appeal is Dr S, who I shall hereafter refer to as the ‘wife’, again for the sake of clarity. She is represented by Mr Alex Tatton-Bennett of counsel on a direct access basis.

In determining this appeal, in addition to the full submissions made by counsel, I have had the benefit of reading the appeal bundle lodged in this matter.

At the hearing I was required to deal with three preliminary applications that were made by the husband. At the commencement of the hearing, the husband applied for (a) permission to amend his Grounds of Appeal and (b) for permission to adduce fresh evidence in the form of what purports to be an expert report from a Dr Edelman. During the course of the morning, the husband then made an application to adjourn the appeal hearing having claimed to have taken an overdose of medication whilst in court.

I dismissed the Husband’s application for permission to amend the Grounds of Appeal, I granted the husband’s application to the limited extent necessary to ensure that this court had before it up to date evidence on the issue of the husband’s welfare and, with respect to the husband’s application to adjourn the appeal hearing, I dismissed that application and proceeded in his absence to hear submissions from his counsel on the merits of his appeal. I set out my reasons for making these rulings later in this judgment.

This matter has a lengthy litigation history. It is not however, necessary set out the background to this case in great detail given the very discrete issue that fell for consideration at the final hearing of the application for financial remedy orders, and which falls for consideration on this appeal. The following matters are relevant.

The wife is from Belarus and is a practicing GP. She is 41 years of age. The husband is from Cyprus and is aged 57. He has laboured under mental health difficulties. The parties were married for 12 years. The parties have two children, aged 11 and 4. The wife made her application for financial remedy orders on 29 October 2014.

The final hearing took place, now more than two years ago, before His Honour Judge O’Dwyer over six days in August 2015. The key issue at the final hearing, and the issue that is at the centre of this appeal, concerned the fate of £340,000 withdrawn from the wife’s bank account with Barclays Bank on 28 March 2013, the sum of £340,000 comprising £221,000 of the wife’s savings and £119,000 the husband had transferred to the wife’s bank account on 4 March 2013. The parties each claimed that the other had retained the money. The learned Judge provided his judgment to the parties in draft on 11 December 2015, and thereafter handed down its finalised form on 14 April 2016. This is the date given in the husband’s later application to re-open the learned judge’s findings, although elsewhere it is said that judgment was formally handed down on 27 July 2016. The copy of the judgment in the bundle does not have a date.

In summary, the learned Judge found that that the wife was telling the truth about the withdrawal of the sum of £340,000 on 28 March 2013 and that it was the husband who took and retains that sum of money. Permission to appeal those findings has been refused. During the course of reaching his findings, the learned Judge considered the parties’ competing claims on a number of factual issues, including the presence and position of a car outside the bank on 28 March 2013, and an alleged Skype call made by the wife to her sister and her mother on that date. The learned Judge preferred the wife’s case on both issues.

On 12 May 2016, the husband issued an application notice that was expressed to be an application “to set aside the unperfected executory order pursuant to the draft judgment handed down on 14 April 2016”. Notwithstanding the terminology used in the husband’s application form of 12 May 2016, I agree with Mr Tatton-Bennett that, at its heart, the husband’s application was an application to re-open the findings made by the learned Judge, made on the basis of new evidence.

On the application to re-open the findings made by the learned Judge, the husband contended that he had secured new evidence that demonstrated that there could not have been a car parked outside the front door of Barclay’s Bank on 28 March 2013. The husband also contended that he had secured forensic computer analysis and screenshots that demonstrated that there had been no Skype call between the wife and her sister and mother on 28 March 2013.

Having considered the new evidence relied on by the husband, the learned judge declined to re-open his findings and made final orders on 23 January 2017. The final financial remedy order of that date provided that the husband pay to the wife a lump sum of £266,750, being 50% of the net equity of the former matrimonial home plus costs. In default of payment of the lump sum, the order provided for the former matrimonial home to be sold and 50% of the net proceeds of sale paid to the wife plus costs. A clean break was ordered.

The Appellant’s Notice was issued on 13 February 2017. The Grounds of Appeal are extensive. However, having regard to the narrow ambit of the permission granted to the husband in this case, I do not need to consider the totality of the Grounds of Appeal, save to observe again that permission to appeal was refused in relation to the grounds that sought to attack the learned Judge’s original findings. On 27 July 2017, Bodey J gave the husband permission to appeal in the following terms:

“AND UPON it being noted (i) that the underlying issue in the court below was whether it is the Husband or the Wife who is possessed of the parties’ savings of about £340,000.00 and (ii) the two main sub-issues which fell for determination concerning the withdrawal of the said sum from Barclays Bank on 28 March 2013 were as follows:

a)

whether the husband knew about the said withdrawal (which he denied he did) or whether, as asserted by the Wife, he participated in the said withdrawal by driving the Wife to the Bank, parking outside and driving her home;

b)

whether, having got home with the money, the parties participated in a ‘Skype’ video call with the Wife’s mother and sister in which they (the Husband and Wife) were both seen together with the said cash.

IT IS ORDERED THAT

1.

Pursuant to FPR R 30.3(7) the Husband do have permission to appeal the orders and decisions herein dated 23 January 2017 on the basis of his case that, by reason of the evidence referred to in paragraph 2 below, the Judge erred in not changing his original conclusion to the effect (a) that the Wife was the one telling the truth about the said withdrawal of the cash and (b) that it was therefore the Husband who took and retains that cash.

2.

The evidence referred to in paragraph 1 above is the following evidence provided on behalf of the Husband, namely:

a.

that there had been no camera device on the relevant laptop in use on 28 March 2013, being the laptop said to have been used for a Skype video session that day;

b.

that there were no traceable Skype video sessions on the said laptop that day;

c.

that the Wife’s mobile phone as at 28 March 2013 had no facility for video calls;

d.

that the Wife ‘texted’ her sister Lyuda at 13.01 hours on 28 March 2013 in terms and at a time which, on the Husband’s case, are inconsistent with the Wife’s case in respect of there having been a Skype video session with her mother and sister;

e.

that, on the Husband’s case, it is most improbable that a car would have been parked on the pavement right in the front of the door to the bank concerned without coming up on CCTV and attracting a penalty, which did not happen.”

Within this context, it is important that this court maintain a clear focus on the ambit of the permission to appeal granted by Bodey J. Whilst Ms Moore sought during the course of her oral submissions to range well outside the boundaries clearly set by the order of Bodey J, it is not the learned Judge’s original findings that are the focus of this appeal (although a determination of the appeal necessarily requires some consideration of the basis on which those original findings were made), but rather the judge’s decision, having reached those findings of fact, not to re-open his findings in light of the new evidence that the husband was permitted by the learned Judge to adduce in support of his application.

Further, it also important that this court notes the evidence that falls, and does not fall to be considered at this hearing. On 9 October a Position Statement was filed on behalf of the husband that asserted that a report signed on 3 November 2016 and a report signed on 28 November 2016 from ‘Computer Forensic Lab’ dealing the ability of the wife’s iPhone to make Skype calls had been produced before the learned Judge in support of the husband’s application to re-open the findings. This was not correct, as was conceded before Baker J when the matter came before him for further case management directions on 8 November 2017. Within this context, I pause to note also that whilst the permission judgment of Bodey J at [26], and the order of Bodey J giving permission include mention of the wife’s mobile phone not having a facility for video calls, it is not apparent that the fact that neither of those expert reports were before the learned Judge on the application to re-open the findings was ever drawn to the attention of Bodey J at the permission stage.

At the hearing on 8 November 2017, Baker J, on the basis of the test in Ladd v Marshall, refused the husband permission to rely at this hearing on the reports dated 3 November 2016 and 28 November 2016 from ‘Computer Forensic Lab’ dealing with the question of the wife’s iPhone. Baker J also refused the husband’s application for a single joint forensic computer expert, for an order that Barclay’s Bank disclose all CCTV footage for 28 March 2013, for an order admitting into evidence on the appeal a letter from his solicitors dated 20 November 2014, for an order compelling the wife to disclose her work log for 28 March 2013, for an order directing the wife to file a narrative statement in response to the husband’s statement dated 12 May 2016 and for an order that the wife file and serve her PRHO. These orders were appealed by the husband to the Court of Appeal. On 23 January 2018, King LJ refused the husband permission to appeal the case management directions given by Baker J.

Within the foregoing context, the evidence I have detailed in the two previous paragraphs is not before the court at this appeal hearing and, accordingly, does not inform the court’s determination of the husband’s appeal.

As I have noted, the key issue at the final hearing concerned the fate of £340,000 withdrawn from the wife’s bank account with Barclays on 28 March 2013, the sum of £340,000 comprising £221,000 of the wife’s savings and £119,000 the husband had transferred to the wife’s back account on 4 March 2013.

The competing positions of the husband and wife on this issue of the withdrawal of these monies on 28 March 2013 can be shortly stated. The husband asserted that the wife removed the monies from the bank unilaterally and hid it. The wife asserted that both she and the husband attended a preliminary meeting with the bank on 25 March 2013 and that the husband had attended the bank with her on 28 March 2013, the day the money was withdrawn, but had no recollection of him coming inside. The wife contended that the money was withdrawn at the husband’s demand, that the husband sealed the money in a plastic container and hid the container in the former matrimonial home, where she believed it remained. At the hearing before the learned Judge each party claimed that the other retained the £340,000 in this possession or control.

In deciding the dispute issue of the whereabouts of the £340,000, the learned Judge heard evidence from the wife, from the husband and a bank clerk from Barclays Bank by the name of Gina R, who had been present in the bank on both 25 March 2013 and 28 March 2013. In addition, the learned Judge heard evidence from certain of the wife’s relatives and from certain tenants of the husband and the husband’s brother. Having heard the evidence of the parties, the learned Judge also undertook a site visit to the bank and to the former matrimonial home.

Within this context, the wife’s statement for the final hearing dated 21 July 2015 stated as follows at [8] with respect to the circumstances surrounding the withdrawal of the £340,000, which account echoes an assertion she had initially made in her undated statement in proceedings concerning the children at [14] and in her statement dated 11 March 2015 at [2.1] to [2.9]:

“[The husband] is from Cyprus and his main savings account was held with the Bank of Cyprus. At the beginning of 2013 there were financial problems in the Eurozone and particularly in Cyprus. The Bank of Cyprus was in trouble and it was my understanding that they were taking steps such as freezing client’s accounts. [The husband] was worried about his savings held with the Bank of Cyprus because he felt the bank’s problems meant his money was at risk. Therefore, on 4 March 2013, he transferred his savings which amounted to £119,000 into my account. The other money in the account (£221,000) was my own personal savings. [The husband] however remained paranoid that other banks would face similar problems to the Bank of Cyprus and that we would lose all our savings. He therefore insisted that we withdraw all our money from my savings account. The withdrawal was his idea and done entirely with his knowledge and his help. I had to attend a meeting with an individual called Gina R in Barclays before withdrawing the money because it was such a large amount to withdraw. I do not recall Ms R’s specific role but I believe she was a cashier manager or supervisor. [The husband] and I attended that meeting together. As the account was in my name, I had to sign a piece of paper confirming that I was aware of the risks of taking out such a large amount of money. I believe that I signed this piece of paper on the day of the withdrawal which was 28 March 2013. [The husband] had full knowledge of the money being withdrawn – as well as attending the meeting with me he drove me to Barclays Bank so that I could withdraw the money. The bag with the money in it was very heavy and as I was pregnant, [the Husband] waited for me with the car just outside the bank’s front door. “

In a statement dated 22 September 2014 in the proceedings concerning the children, the husband alleged that, as far as he knew, the wife had £337,000 in her bank account. The Husband’s statement for the final hearing made no mention of a meeting at Barclay’s bank on 25 March 2013.

Ms R provided a statement dated 23 July 2015. It also dealt with the circumstances in which the £340,000 had been withdrawn from the Barclay’s account and related as follows at [3] to [5]:

“[3] Dr S called into the branch with a gentleman who was introduced as her husband and requested to cash £340,000 from her account. I took both individuals into the office to discuss further in private, explaining to them that this was a large amount of money to take out in cash and offered alternative ways to move this sum of money. I suggested that they take the funds in smaller amounts over a longer period of time for security reasons however the gentleman insisted the cash was to be withdrawn in one transaction. When I asked why, he commented on how he had withdrawn funds from the bank of Cyprus due to the financial crisis at the time and he didn’t trust Barclays as he believed they were going the same way. I informed the customers that I would get back to them in the next few days, as this was such a large amount of money I had security procedures to follow. I placed a special cash order for the customer and made a telephone call to advise that the money was ready for collection. Both Dr S and the same gentleman came into the branch to collect the cash a few days later.

[4] I can confirm that I met with Dr S and the gentleman prior to the Applicant withdrawing the £340,000 cash from her account on 28 March 2013 for the cash request.

[5] I can confirm that the £340,000 was then withdrawn on 28 March 2013, following the previous meeting with Dr S and the gentleman. I can confirm that both parties attended the bank that day.”

I have had the benefit of seeing a transcript of Ms R’s oral evidence. That transcripts makes clear that Ms R was questioned about both the meeting on 25 March 2013 and the withdrawal of the £340,000 on 28 March 2013. With respect to 25 March 2013, Ms R confirmed that the wife had attended with someone who she, the wife, identified as her husband. Ms R further confirmed that the husband had insisted that the money was wanted in cash because “he said he did not trust banks the way they were going at the moment so they wanted whole amount in cash”. Ms R recalled that it was the husband and not the wife who was raising concerns regarding the Bank of Cyprus and their wish, in the circumstances, to withdraw the money in cash. Ms R insisted that she specifically remembered these exchanges because the withdrawal of such a large sum of cash would create a great deal of work for her. With respect to 28 March 2013, despite the wife’s recollection that the husband had not come into the bank with her on that day, Ms R was clear that both the husband and the wife came into the bank on 28 March 2013, and that she recognised them in the queue from her previous encounter with them on 25 March 2013.

Within the context of this evidence, and notwithstanding there being no mention of it in the husband’s statement, the learned Judge makes clear in his judgment that, during the course of the final hearing, the husband accepted that he had indeed attended a meeting at Barclays with Ms R on 25 March 2013, that he did know that the bank would be contacting the wife as regards to how to collect the £340,000 and that, after the meeting on 25 March 2013, he had told the wife to leave the money at the bank and that she had agreed.

The learned Judge also heard oral evidence from Ms R in respect of the manner in which the £340,000 had been collected from the bank on 28 March 2013. The following exchange occurred between the then counsel for the wife and Ms R regarding the meeting that took place at the Bank on 25 March 2013:

“Q. Do you remember anything that Dr. S said about why she wanted the cash?

A. No.

Q. But you do remember her saying to you she wanted the cash arranged also?

A. Yes, because it was such a large amount and I did not really want to get this in and also from a safety point of view of actually leaving the branch with this kind of money.

Q. Did they have any answer to your point? Did you raise the safety point with them?

A. Yes, that was not a problem with them.

Q. Why what solution did they give to you?

A. They would have a car outside waiting and that was not a problem.

Q. Who said that they would have a car waiting outside?

A. I think it was Mr. S. I am not 100% sure.

Q. So you are not sure who said this?

A. No, it was a while back. It is hard to remember the little details.

Q. No, I understand that and sometimes memories are funny things. They can come back and play tricks on you or they can come up with what actually happened. So you said it was going to be to be difficult taking the cash and they said they could bring the car to the door?

A. So if that is what they wanted like I said

Q. How could you bring the car to the door?

A. On the side bit, you can park on the side.

Q. What do you mean by the side bit?

A. Just by the side of the branch it is by our front door.”

Thereafter, the following exchange took place between the then counsel for the wife and Ms R with respect to the question of how the money was collected from the bank on 28 March 2013:

“Q. Did you have any discussion with her as to how she was going to carry the money?

A. They said they had a car outside.

Q. Who said they had a car outside?

A. Dr. S.

Q. She said she had a car outside?

A. Yes, they were both there Mr. and Dr. S at the same time saying they had a car outside because I was worried about walking out of the branch with that kind of money.

Q. Where was the car outside?

A. I believe I was told it was just on the side road. I did not physically go out and check.

Q. When you are sitting at your desk, as I recall the bank, your desks face out towards the side right, is that right?

A. No, it faces the main road.

Q. Can you see the entrance door to your bank from the desk?

A. You can, yes.

Q. Do you remember seeing any car outside or being pointed to any care or any comment about it?

A. No, just that they had a car outside.

[...]

Q. You have handed over the money. Who has put it in the bag?

A. Dr S I think. Again I am not 100% sure.

Q. When you were handing the money over are you sure that there was someone else with Mrs S or are you guessing in the bank?

A. At the time, yes, there was two of them, yes, definitely.

Q. Because I think Mrs S told me she was the only person in the bank.

A. I am sure that there were two people or he had then got out to get the car.

Q. Just take it slowly. What do you recall?

A. There were definitely two people. I cannot remember if she then said, “My husband has gone to get the car” or “He is in the car waiting.”

Q. No you’re guessing again.

A. No, I do remember something about he has gone to get the car or he is in the car or are you sure you are safe taking it out.

Q. But you have told me there were two of them in the bank?

A. That is what I am saying he then went to get the car.

Q. Are you fairly sure about that?

A. I remember saying, "Are you okay taking this money out", and she said, "Yes, my husband is in the car outside."

Q. But you have already said there were two of them in the bank?

A. Yes, there were two in the bank but he then left to get his vehicle to bring it nearer to the branch.

Q. And this enquiry that you made are you definitely safe he was not there at that point, is that right?

A. No, he was in the car by then.

Q. So when you were handing over the money he was not there, is that right? Are you saying that or were they both there when you were handing over the money?

A. I cannot remember.

Q. Just take your time.

A. It is so hard to remember exactly who was where at what precise time. I cannot be 100% sure so I really cannot comment.

Q. When you were handing over the money it is not often in your life as a cashier that you hand over £340,000 in brown envelopes, so can you remember when you were handing over the money, it was being put in the bag, whether there was someone in addition to Mrs S or do you only remember her being there at that point.

A. No, I definitely remember I am sure there was two people.

A. When you were handing over the money.

A. Yes.

Q. And at what point do you recall someone saying that their husband was getting the car?

A. I think I said, “Are you okay taking that money outside”, and she commented that her husband was right outside the door with the car.

Q. Did she point out where her husband was?

A. No.

Q. Did you watch her leave the bank.

A. Only so far as the front door.”

Finally, on the subject of the manner in which the money was removed from the bank on 28 March 2013, the following exchange took place between the learned Judge and Ms R:

“Q. If you just look at the first of those photographs...That is corner just outside your front door.

A. That is our front door, yes.

Q. You can see that front door?

A. From our tills you can see the front door.

Q. I have been told that on the pavement parked directly in front of the front door, probably about three or four feet away from it, yes, right there, sticking out into the middle of the road was a large silver Mercedes when Mrs S left. That is what someone has said. Do you have any recollection of seeing such a car?

A. No.

Q. You saw her going to the door. The thing would have been parked immediately outside the door, about three feet away from that front door?

A. No, I do not have any recollection of that at all.

Q. Would you have noticed it had been there?

A. It is very hard to say.

Q. From where you were sitting in the bank?

A. I could have seen it, but I cannot remember.

Q. My concern is that if you have a large car park there it is likely to be very noticeable from inside the bank perhaps. I do not know. I was not inside the bank.

A. Yes, but it was not something I was looking out for.

Q. You saw her going to the door?

A. Once I had seen her leave the building that was it.

Q. But cannot say one way or the other?

A. No, I definitely cannot.

Q. If there had been a large car just parked immediately outside the front door that day right across the pavement all the way up there might someone have not commented about it or does the bank security not bother about that sort of thing?

A. No, we have always got things like that happening there.

Q. Things like what, sorry?

A. People double parking on the bus lane.

Q. What about parking right across the pavement, right across the front door, that is what I am talking about. Are you following what I am saying?

A. Right across here.

Q. Is that always happening?

A. No. Sorry, I thought you meant across where the bus lane is?

Q. No, I meant literally on the pavement right in front of the bank’s door. You cannot recall seeing that?

A. No.

Q. And you cannot say whether you would see it whether or not it was there?

A.

No.”

The learned Judge also heard evidence on the second evidential issue that is central to this appeal. Namely, the question of whether there had been a Skype call between the wife and her sister and her mother, during which she showed her relatives the money. In their written evidence, the wife, her sister and her mother each contended that there had been such a call, although the device used to make the call was not specified. The court heard oral evidence from the wife, her sister and her mother on this issue.

The husband denied the Skype call had taken place. In particular, the husband placed a great deal of emphasis on a text message that purported to have been sent by the wife to her sister at 13:01:00 on 28 March 2013 stating “At home. I’m running to work”. The husband contended that this text message undermined the wife’s case regarding the Skype call to her sister and mother because the text indicated that the wife was returning to work only some 21 minutes after leaving the bank on 28 March 2013. In response, the wife made two points. First, an email from her workplace dated 12 August 2015 showed that she commenced work at 4.30pm on 28 March 2013 and had had, therefore, time to make the Skype call before returning to work. Second, in circumstances where the text messages were presented to the court as an Excel spreadsheet, the wife contended there was no opportunity for her ascertain whether the text message were an edited account or otherwise unreliable.

As I have noted, on 11 December 2015, the learned Judge emailed his draft judgment to the parties. The learned Judge thereafter handed down his perfected judgment on 14 April 2016. Once again, I note that this is the date given in the husband’s application to re-open the learned Judge’s findings, albeit elsewhere the date for formal handing down of the judgment is given as 27 July 2016. Accordingly, at least eight months passed between the final hearing and the handing down of judgment. As I have noted, on the central issue of who had possession or control of the £340,000, the learned Judge found that the husband had the money.

It is clear from the judgement handed down by the learned Judge that the evidence of the Ms R was central to the learned Judge’s finding of fact that the husband had retained the £340,000 withdrawn from Barclays on 28 March 2013. Indeed, it is clear from the learned Judge’s judgment that the evidence of Ms R, who was an independent witness, was decisive in the finding of fact he made on this issue. The learned Judge stated as follows at [31] to [33]:

“[31] I heard from Mrs R in oral evidence. She was a clear and independent witness. At times course, as are many witnesses, she was little inclined to move to conclusions before identifying the evidence that supported them but she was clearly truthful and had a good recollection.

[32] She was clear that it was the husband who had also pressed for the withdrawals of the money. H told me the discussion had primarily been about raising a mortgage. Ms R was clear this was not the case. The reason she said for the husband’s urgency was that he said he was worried that the savings would not be safe in the accounts should there be another recession or banking collapse. They explained to Ms R that they would have a car waiting outside the bank to collect the money.

[33] She also initially was clear in recalling H coming into the bank on the 28th. The Wife had no such recollection. Ms R in cross-examination says that she believed the same man attended who had been at the meeting on the 25th. Identification evidence is always difficult and I am very cautious about this finding. Nonetheless on the balance of probability I am satisfied that it was indeed H. The account of the Clerk does more realistically fit with the practical scenario that H parked up nearby, dropped in to check that W was collecting the money and then went to drive the car right up to the front of the bank. The brief time then necessary for the car to be parked outside the bank makes it more feasible that it could have occurred without comment from inside the bank. W had not initially recalled H coming into the bank itself.”

With respect to the question of the manner in which the money had been removed from the bank on 28 March 2013, and in particular with respect to the question of the use of a car, in addition to the matters set out in his judgment at [33], the learned Judge observed at [37] that Ms R clearly recalled the husband as being in the bank and that he had left shortly before the money was actually handed over to bring the car closer to the bank. Within this context, the learned Judge drew the following conclusions from his site visit to the bank at [41]:

“[41] Having heard the evidence of the parties I went on a site visit with the parties and their solicitor. I found the following matters:-

(i)

The bank was on the corner of a very busy road. I had been very sceptical about the W’s account of the car being parked on the pavement outside the bank. However the account of the car having been parked outside the bank became possible in the light of the bank clerk’s evidence (not given by the wife) that the husband had left shortly before the handing over the money to bring the car forward. There was space on the pavement just to help with the car for a very short time. It was unlikely but possible and I have concluded in the totality of the evidence probable.

(ii)

From the bank clerks’ position it may not have been possible to notice whether there was a car parked on the pavement outside the front door or not. Again I had been sceptical that a bank would have not been alarmed as a large car parked blocking the exit.”

Within the foregoing context, and having expressed his view that neither the husband nor the wife were compelling in their oral evidence, nor were the witnesses each had called in support of their cases, the learned judge concluded as follows with respect to the fate of the £340,000 at [42] and [43]:

“[42] ...Had it not been for evidence of the bank clerk I would have been extremely distrustful otherwise of both parties’ evidence.

[43] The evidence of the bank clerk however was compelling. It was in contradiction on every significant point to the husband’s account. It agrees substantially with the wife’s account. Neither of the parties knew that the bank clerk was going in fact to be giving oral evidence until a late stage (although she had filed a witness statement) as she attended only at my insistence. Ultimately I make decisions on the balance of probability. The evidence of the bank clerk places that balance firmly in favour of the wife. I am satisfied that the husband was took part of the removal of the money from the bank. It was the husband’s insistence that the monies were removed in cash. The husband was with the wife when the monies were removed and has lied about not being present.”

Finally, with respect to the question of the Skype call and the import of the purported text, having made his key findings regarding what had transpired at the bank at [42] and [43], the learned Judge stated as follows at [44] and [45]:

“[44] Those findings feed into my ultimate conclusion that although an extraordinary tale the wife’s account is likely to be true. The money was shown to her relatives. The money was put in the bucket. And the money was retained by the husband. I am satisfied on the balance of probability Mr S had possession of the money and that he knows where it is now currently.

[45] H produced a text message which he says was inconsistent with W’s account. However I am not satisfied with the reliability of the origins of the purported transcript. It is clear that the W was at work that afternoon from 4.28 pm.”

It is important to note, once again, that permission to appeal the original findings made by the learned Judge was refused. In the circumstances, those findings stand.

On 12 May 2016 the husband issued an application notice that was expressed to be an application “to set aside the unperfected executory order pursuant to the draft judgment handed down on 14 April 2016”. As I also have noted, notwithstanding the terminology used in the husband’s application of 12 May 2016, I agree with Mr Tatton-Bennett that that application is, at its heart, an application to re-open the findings made by the learned Judge in his original judgment on the basis of new evidence. Ms Moore did not demur from this analysis.

The husband’s case on the application to re-open the findings made by the learned Judge concentrated on two elements of the learned Judge’s reasoning. First, the husband contended that he had secured evidence that demonstrated that, contrary to the learned Judge’s conclusion, there could not have been a car parked outside the front door of Barclay’s Bank on 28 March 2013. Second, the husband contended that he had secured forensic evidence and screenshots that demonstrated that, once again contrary to the learned Judge’s conclusion, there had been no Skype call between the wife and her sister and mother on 28 March 2013.

With respect to the further evidence regarding the position of the car on 28 March 2013, the husband contended that in his statement in support of his application to set aside as follows at [7]:

“I made a request under the Freedom of Information Act about the cameras in Green Lanes in the vicinity of Barclays Bank. The response is exhibited showing that the cameras were active and that penalty charge notices were issued on 28 March 2013 using those cameras. I also include in that exhibit confirmation that no penalty charge notice was issued in relation to my car that day.”

In his judgment on the application to re-open, the learned Judge records that the husband also produced a letter dated 13 August 2016 from the CCTV operations managed at Haringey Council confirming that if the car had been parked in the location canvassed during the final hearing it would have been parked in breach of the provisions of the Traffic Management Act 2014 and would have received a penalty charge notice if recorded by a CCTV camera, or a civil enforcement officer patrolling his or her assigned beat.

With respect to the new evidence concerning the Skype call the learned Judge had found had been made on 28 March 2013, the father produced an unsigned report dated 26 January 2016 from a forensic investigator with respect to a laptop computer completed by ‘Computer Forensics Lab’ upon the solo instruction of the husband. The report was not emailed to the wife until 14 April 2016 and not formally served on her until 14 June 2016. Within this context, the husband asserted as follows in his statement in support of his application at [6]:

“[6] The respondent, her mother and her sister have lied about making a skype call to her mother and sister in Belarus on 28 March 2013. I commissioned a computer forensic report by Computer Forensics lab to examine the equipment used to make Skype calls in the home. The investigations did not find any Skype communications between 1200 and 1400 hours for the user/ skype screen names ‘pinsk4546’, ‘Tatyana’ and ‘Kolobok’. I attach and exhibit marked ‘KV4’ the report dated 2 February 2016 confirming the qualifications of the investigators, the methods used and the results. Further, I attach the whole log of Skype calls uploaded by the investigators marked ‘KV5’ to show the original source was the one used by the respondent at that time.”

The father provided a further report from ‘Computer Forensics Lab’ dated 8 September 2016. That report concluded that the laptop did not have a built in webcam, and that the laptop lack a device driver required to ensure that any webcam could communicate with the operating system on the laptop.

I pause to note that the wife did not accept that the laptop that had been analysed, and which was the subject of the unsigned report, was necessarily the same device that was used to make the Skype call on 28 March 2013, the other potential devices being her iPhone and her desktop. The wife further noted that the laptop, if the same one used by the parties during their relationship, had been in the possession of the husband since the end of the relationship.

In support of his application to re-open the finding in respect of the Skype call, the husband also placed before the court a large number of entries from a ‘Skype Communications Log’, running to some two lever arch files of documents. The husband contended that those logs further undermined the learned Judge’s finding that there had been a Skype call between the wife and her sister and mother on 28 March 2013.

I again pause to note that the wife made extensive criticism of the provenance and probative value of those Skype records. In particular, then counsel for the wife set out the following critique of the records in the Position Statement that was lodged on behalf of the wife in response to the husband’s application:

“The Skype history that has been served shows that there are no records of any calls being made or received after 18 January 2011 (i.e. no records of calls at all in 2013), only chat messages. This adds to lack of credibility in the report and W’s belief that the data has been manipulated by H. The history which has been disclosed also show another significant gap of time between 23 June 2013 and 13 November 2013 – the assertion that there was no Skype communication of any kind in this period is simply not credible. Further, the assertion (in the report, rather than the history which has been disclosed) that there were no Skype communications between the dates 23 March 2013 and 3 April 2013 is implausible, given that W was (and is) in very frequent contact with her family in Belarus and these dates covered the Easter period and bank holidays in 2013.”

Further, it is also important to note that the evidence produced by the husband in support of his application to re-open the findings, in the form of the Skype logs, to a certain extent in fact corroborated the original findings that the learned Judge had made. In particular, the following features of the evidence provided by the husband, as set out in Mr Tatton-Bennett’s Skeleton Argument, not disputed by Ms Moore and as referred to by the learned Judge in his judgment at [19] to [22], are notable within the context of the finding that the learned Judge had made with respect to the fate of the £340,000 withdrawn from the Barclay’s account on 23 March 2013:

As I have noted, this was evidence before the learned Judge that the husband had provided to the court in support of his application. Further, it was evidence that comprised of a contemporaneous record of a private exchange between the wife and her sister taking place only 8 weeks after the money was withdrawn on 28 March 2013, and at a time well before the wife issued an application for financial remedy orders.

Having considered carefully the new evidence put forward by the father in support of his application, in respect the question of the position of the car, the learned Judge concluded at [14] and [15] in his judgment as follows:

“[14] There is no evidence however of course that [in] this particular case all the movements of the car were picked up by the camera from the position they were while on the pavement in that side road.

[15] I am not satisfied that there is sufficient evidence of this matter that would cause me to reopen the findings as I made”.

With respect to the question of the Skype evidence produced by the husband, the learned Judge concluded as follows at [26]:

“[26] Taking therefore the whole of the evidence I am not satisfied that the husband’s evidence provides exclusionary evidence that the call did not take place as found in my judgment.”

In the circumstances, and within the context of his careful analysis of the new evidence with respect to the position of the car outside the bank and the Skype call on 28 March 2013, and having directed himself as to the law concerning the re-opening of findings previously made, the learned Judge concluded as follows at [39] to 42] with respect to the husband’s application to re-open his findings made in April 2016:

“[39] The wife’s case otherwise is that this is evidence that could have been obtained with reasonable diligence for use at the trial. It is submitted to rely upon this evidence the application set aside fails the Ladd against Marshall criteria.

[40] I have at this stage taken the broader view. I have considered each piece of evidence put forward by H both individually and in total setting all in the context of the evidence that led to my original findings.

[41] At the end of the day I am not satisfied that, if the evidence produced by the husband were taken into account in the matrix of the findings that I have made and in light of the other evidence received by the court, it would affect the balance of evidence so as to be capable of disturbing the findings that I made within the judgment. I have taken into account the full extent of the evidence produced by the husband and considered whether it is capable of affecting the findings made. I am not so satisfied.

[42] I should say that I reserved judgment given the amount of time taken at the hearing in order that I can review the whole of the evidence in this case. It is clear in my judgment that there were elements in relation to the wife’s case that I was unsatisfied as to and I was anxious that the husband had full opportunity to expand against that background. Having reviewed all the evidence and having reviewed the evidence given before me I am not satisfied in the interests of justice that the husband’s application to reopen the evidence in this case should now be refused and final orders made”.

On behalf of the husband, Ms Moore made comprehensive submissions in her Skeleton Argument prepared for this hearing and supplemented those submissions with fully articulated oral submissions. She said all that could possibly be said on behalf of her client. In summary, on the narrow ground of appeal permitted by Bodey J, Ms Moor submitted that the learned Judge’s conclusion that the new evidence adduced by the husband was not capable of affecting the findings he had made was “perverse”.

Ms Moore argued that the learned Judge had failed to understand the new evidence in the form of the forensic computer analysis, which resulted in him attaching weight to the Skype logs corroborating his findings whilst dismissing the evidence concerning the wife’s text messages on 28 March 2013. Within this context, in her Skeleton Argument Ms Moore further argued that in circumstances where “the only evidence to support the Wife’s case that the money had been taken to the matrimonial home and hidden there was her narrative account”, that this narrative was contrary to the wife’s text message and that the “only evidence in support of this narrative was the oral evidence of the Wife, her sister and her Mother”, the new evidence adduced by the husband, including the evidence concerning the position of the car, undermined the wife’s narrative account and should have led to the learned Judge changing his findings. I pause to note that Ms Moore’s characterisation of the evidence in support of the wife’s case, I am afraid, mischaracterises the position that pertained before the learned Judge in that it ignores entirely the independent evidence of Ms R, and the fact that the learned Judge found that the husband’s evidence was undermined on every key point by that evidence.

Within the foregoing context, Ms Moore submitted that the learned Judge was wrong not to change his original conclusion that the wife was the one telling the truth about the withdrawal of the sum of £340,000 on 28 March 2013 and that it was therefore the husband who took and retains that sum of money.

On behalf of the wife, Mr Tatton-Bennett argues simply that, having given careful consideration to the new evidence adduced by the husband in support of his application to re-open the findings, the learned Judge was right to find that they did not affect his findings.

With respect to the new evidence concerning the position of the car, Mr Tatton-Bennett submitted that this evidence could not amount to a basis for the learned Judge re-opening his finding regarding the car. He submitted that nothing the husband produced with regard to the lack of parking enforcement undermined Ms R’s evidence about the husband’s presence on the day of the withdrawal or her evidence that she was told that the husband was outside waiting in a car, this being, says Mr Tatton-Bennett, the decisive evidence upon which the learned Judge based his findings. Moreover, Mr Tatton-Bennett submitted that (echoing an observation made by Bodey J during the permission hearing) the fact that a person parks illegally, especially if it is for a very short period, and is not the subject of parking enforcement is not really evidence of anything except that that person may have been lucky.

With respect to the new material relevant to the Skype call, Mr Tatton-Bennet submits that the Skype call was, as Baker J and King LJ each observed when dealing with this case, not central to the learned Judge’s findings. In any event, Mr Tatton-Bennett submits that the learned Judge was not wrong not to change his mind in light of the new evidence adduced by the husband, not least because that new evidence in fact, to a certain extent, corroborated the learned Judge’s earlier findings. Within this context, Mr Tatton-Bennet submits that the learned Judge was right to conclude that the new material did not provide exclusionary evidence that the Skype call did not take place.

In these circumstances, Mr Tatton-Bennett submitted that the husband’s appeal should be dismissed and the final financial remedy order implemented, it being now over a year since that order was made.

Pursuant to FPR r 30.12(3) this court may allow an appeal where it considers that the decision of the court below was wrong or unjust because of serious procedural irregularity or other irregularity in the proceedings before the lower court.

In this case, the task of the learned Judge was to decide whether he should re-open his findings in light of the new evidence he had permitted the husband to adduce. In the circumstances, whilst there was some discussion during the course of the hearing of the decision of the Supreme Court in L and B (Children) [2013] UKSC, this was not a case where the learned Judge changed his mind between sending out his draft judgment and the date of that judgment being handed down. Rather, in this case the learned Judge handed down a perfected judgment, after which the husband applied to re-open the findings made in the perfected judgment on the basis of new evidence the husband had managed to obtain.

Within this context, in the absence of any allegation of fraud, mistake, misrepresentation or non-disclosure, the task for the learned Judge was, as he rightly identified, to decide whether, having regard to the particular facts of the case, including the new evidence that the husband had secured, it was appropriate to re-open the findings of fact he had made.

As the learned Judge identified, whilst this was a case concerning financial remedy orders, the law governing whether a court should accede to re-opening findings of fact previously made has recently been reviewed, in the context of cases concerning children, in Re Z (Children) (Care Proceedings: Review of Findings) [2015] 1 WLR 95. Notwithstanding that this is a financial remedies case, rather than a matter concerning children, the principles set out in Re Z (Children) (Care Proceedings: Review of Findings) provided a principled framework for the learned Judge to complete the task assigned to him. Indeed, he was invited by Ms Moore on behalf of the husband to apply this legal framework to the question of whether it was appropriate to re-open his findings. Whilst Ms Moore also argued that the principles set out in Ladd v Marshall were relevant to the exercise the learned Judge had to undertake, it is plain that the learned Judge preferred, and applied, the broader approach applicable to applications to re-open findings of fact over the narrower principles governing the admission of fresh evidence on an appeal.

Finally, it seems to me that, in determining whether a judge was wrong not to accede to a request to re-open his findings, Mr Tatton-Bennett is right to remind the court of the following passage from the judgment of the Canadian Supreme Court in Housen v Nikolaisen [2002] 2 SCR 235 at [14] cited by Lord Kerr in DB v Chief Constable of Police Service of Northern Ireland [2017] UKSC 7 at [79]:

“The trial Judge has sat through the entire case and his ultimate judgment reflects this total familiarity with the evidence. The insight gained by the trial Judge who has lived with the case for several days, weeks or even months may be far deeper than that of the Court of Appeal whose view of the case is much more limited and narrow, often being shaped and distorted by the various orders or rulings being challenged.”

Before turning to the substance of the appeal, I deal with the reasons underpinning my decisions on the three preliminary applications that were made by the husband at the hearing. As I have recounted, at the commencement of the hearing, the husband applied for permission to amend his Grounds of Appeal and for permission to adduce fresh evidence in the form of what purports to be an expert report from a Dr E. Shortly after Ms Moore commenced her substantive submissions on the appeal, the husband then made an application to adjourn the appeal hearing having claimed to have taken an overdose of medication whilst in court.

With respect to the application for permission to amend the Grounds of Appeal, I was not satisfied that permission should be granted. Ms Moore sought permission to add the following three additional grounds, which I set out precisely as pleaded by Ms Moore:

My reasons for refusing the husband permission to amend his Grounds of Appeal to add these grounds were as follows:

In these circumstances, I was satisfied that the husband’s application to amend his Grounds of Appeal should be refused. What was plainly required at this hearing was a careful focus on the central issue in this appeal, namely that identified by Bodey J.

With respect to the application to admit fresh evidence, I was satisfied that the document that purports to be an expert report from a Dr E should be admitted for the purposes of assisting the court to ensure the husband’s wellbeing as a litigant. However, in circumstances where the document was plainly not relevant to grounds of appeal permitted by Bodey J, I declined to admit it for any other purpose.

Finally, as I have noted shortly after Ms Moore commenced her substantive submissions on the appeal, the husband made an application to adjourn the appeal hearing, having claimed to have taken an overdose of medication whilst in court and left the court room. Following an ambulance being called and the husband being removed from the court building by paramedics, Ms Moore made an oral application for an adjournment.

Whilst accepting that she had instructions on the appeal, and that she had already commenced making her substantive oral submissions, Ms Moore concentrated her submissions in support of an adjournment on the fact that the husband would not now be present in court to provide her with instructions during the course of her substantive submissions. In addition, and whilst she did not herself raise it during the course of her submissions in support of an adjournment, when I raised with Ms Moore the question of the husband’s capacity to litigate, having regard to his claimed actions in the court room, Ms Moore contended that she considered that the husband now lacked capacity to conduct litigation.

On behalf of the wife, Mr Tatton-Bennett strenuously resisted an adjournment. He pointed out that this matter has already been the subject of protracted delay, with the wife now having waited well over a year to be able to implement the final order of the learned Judge dated 23 January 2017. Further, Mr Tatton-Bennett submitted that the balance of prejudice caused by an adjournment would fall squarely on the wife in circumstances where she was waiting to implement the order for sale of the former matrimonial home and where the husband remained in the former matrimonial home pending implementation of the final order. Within this context, Mr Tatton-Bennett submitted that, in circumstances where it was far from clear that the husband had in fact acted as he claimed to have done in the court room, an adjournment would provide the husband with precisely what he sought, namely further delay the sale of the former matrimonial home in which he continued to reside.

Having considered the competing submissions, I was satisfied that the husband’s application to adjourn the appeal hearing should be refused for the following reasons:

In the circumstances I was satisfied that the husband’s application to adjourn the final hearing of the appeal should be dismissed and I proceeded to hear the appeal.

Having considered carefully the very full written and oral submissions of counsel and the material contained in the appeal bundle, I am satisfied that the husband’s appeal must be dismissed. My reasons for so deciding are as follows.

As I have noted, the learned Judge’s original findings were not the subject of permission to appeal. In the circumstances, the focus of this appeal is the judge’s decision not to re-open those findings in light of the new evidence that the husband was permitted by the learned Judge to adduce in support of his application to re-open.

Having regard to the new evidence before the learned judge with respect to the position of the car on 28 March 2013, I am entirely satisfied that it cannot be said that the learned Judge was wrong to conclude that the new material relied on by the husband was not sufficient to cause him to reopen the findings he had made in this regard. The new evidence centring on the absence of any parking enforcement measures having been taken in respect of the car in that area on the day in question could not possibly constitute a proper basis for revisiting the findings of fact the learned Judge had made in this regard.

As Bodey J observed in her permission judgment, the fact that a person parks illegally, especially if it is for a very short period, and is not the subject of parking enforcement is not really evidence of anything except that that person may have been fortunate. Within that context, such evidence was simply not capable of undermining Ms R’s evidence about the husband’s presence on 28 March 2013 or her evidence that she was told that the husband was outside waiting in a car.

I am equally satisfied, having regard to the new evidence before the learned Judge relevant to the Skype call on 28 March 2013, that it cannot be said that the learned Judge was wrong to conclude that the new material relied on by the husband was not sufficient to cause him to reopen the findings he had made in this regard.

There is no proper basis for arguing that the learned Judge did not understand the import of the new evidence. For the reasons advanced by the wife at the hearing, the nature and quality of that evidence was simply not sufficient to form a reliable foundation on which to base a reconsideration of the finding the learned Judge had made. In particular, notwithstanding Ms Moore’s detailed submissions on the point, it cannot be said that the learned Judge was wrong to decide that the new evidence did not affect his evaluation of the significance of the text message alleged to have been sent by the wife at 13.01hrs on 28 March 2013.

Further, and more fundamentally, as noted by the learned Judge in his judgment, the Skype evidence the husband put before the court in support of his application to re-open the findings in fact tended strongly to corroborate the court’s findings, in circumstances where that evidence comprised a contemporaneous record of a private exchange between the wife and her sister only 8 weeks after the money was withdrawn on 28 March 2013, and at a time well before the wife issued an application for financial remedy orders, making it unlikely that these exchanges were part of an attempt to craft a version of events for the purposes of litigation.

Finally, I am now the third judge (following Baker J and King LJ) to be satisfied that the Skype call did not feature prominently in the learned Judge's conclusion on the question of which party retained the money. It is plain on the face of the judgment that it was the independent evidence of Ms R, which contradicted the husband’s account on all significant points, and largely corroborated the wife’s account on all significant points, that was determinative of the learned Judge’s finding. It is equally plain on the face of the judgment that the learned Judge’s considered his conclusions regarding the Skype call simply supportive of his overall conclusion, not the reason for it. The learned Judge’s decision turned on the independent evidence of Ms R.

In the circumstances, I am satisfied that the learned Judge was well within the ambit of his discretion in deciding that the new material adduced by the father in relation to the issue of the Skype call did not justify the learned Judge revisiting his findings in relation to that issue.

As is clear from paragraphs [39] and [40] of his judgment on the application to re-open the findings, the learned Judge adopted a generous approach to the husband’s application, agreeing to consider the evidence the husband had secured since the learned Judge made his findings, and then re-evaluating the totality of the evidence in that context. Within this context, I am entirely satisfied that it cannot be said that, having undertaken that exercise, the learned Judge erred in not changing his original conclusion that the wife was the one telling the truth about the withdrawal of the sum of £340,000 on 28 March 2013 and that it was therefore the husband who took and retains that sum of money.

For the reasons I have given, I am satisfied that the husbands appeal must be dismissed. The husband will be ordered to pay the wife’s costs of the appeal. Counsel will be invited to submit a draft order in the appropriate terms for approval by the court.

That is my judgment.