Al-Khatib v Masry & Ors

On an application for permission to appeal an ancillary relief order, permission may be granted where substantial components of the award are reasonably open to argument, even though detailed criticisms have not been investigated. Conflicting orders made in different jurisdictions, and the parties’ positions in related children proceedings, may require reflection when assessing additional financial awards. An unresolved question about access to the court by a party in contempt should not be decided on a short, contested permission hearing. The court may pause appellate steps and direct mediation where continuing litigation is harmful to the family.

The application arose from a substantial ancillary relief order made by Munby J in the Family Division. The order transferred identifiable property to the wife and required the husband to pay a further £10m, together with £2.5m described as a war chest or fighting fund for continuing litigation concerning the children. The husband challenged aspects of the judge’s findings, the valuation of his wealth and the treatment of his conduct. A further issue concerned whether he could obtain access to the court before purging contempt. The Court of Appeal considered the arguability of the additional awards, conflicting orders in England and Saudi Arabia, and whether mediation should be attempted.

Thorpe LJ gave the judgment of the court.

1. Permission to appeal. The court had not investigated the husband’s detailed criticisms of the first-instance findings. Some criticisms appeared capable of being made good, but the evidential difficulties were substantially attributable to the husband’s incomplete and non-candid disclosure. The transfer of the ascertainable property was likely to stand, but there were real grounds for argument concerning the additional £10m and the £2.5m war chest. Permission was therefore allowed in relation to paragraphs 1–6 of the order.
2. Conduct and foreign proceedings. The first-instance judge had relied partly on the husband’s removal of the children from France and his defiance of orders made in England. The judgment did not sufficiently record that the husband regarded his conduct as justified under Sharia law and had obtained orders in the Sharia court. Directly conflicting orders had remained in force in both jurisdictions for almost two years. That circumstance required consideration and supported further argument about the additional awards.
3. Contempt and access to court. The law, or at least its practical application, concerning access to the court by a litigant who had not purged contempt was insufficiently clear for confident determination on a two-hour contested permission application. The issue was left for fuller consideration.
4. Mediation and interim directions. Continuing litigation was harmful to the parents and children. Formal invitations to mediation in London were directed. No further appellate steps were to be taken pending responses and the outcome of any agreed mediation. The stay preventing enforcement against the remaining properties was lifted. Wall J agreed and considered that, if the husband came to England with the children for mediation, arrangements should protect him from arrest for contempt during that process and enable the children to remain in England.

Costs were ordered to be costs in the appeal.

1. Court of Appeal (Civil Division): Permission to appeal was allowed in relation to paragraphs 1–6 of the order. The stay was lifted, costs were reserved as costs in the appeal, and mediation directions were made: [2002] EWCA Civ 1045; [2002] 1 FLR 1053.
2. High Court of Justice, Family Division: Munby J made the substantial ancillary relief order explained in a judgment dated 30 January 2002. No citation for that decision was stated.