‘Furious litigation’: Private school fees, illicit expert evidence, and an ECRO

INTRODUCTION

• Mostyn J (‘the Judge’) dealt with:
  • ‘The extension application’: the application by Jason Galbraith-Marten (‘F’) issued on 18 October 2021 to extend an extended civil restrain order (‘ECRO’) made by the Judge on 21 October 2019.
  • ‘The permission application’: the application by Catherine de Renée (‘M’) dated 28 July 2022 for permission pursuant to the ECRO to issue an application under Schedule 1 to the Children Act 1989 for financial provision for the parties’ daughter, A, aged 15 ¾.

BACKGROUND

Procedural background

• The Judge noted that the case had a very lengthy history. Proceedings began in March 2009 in Australia when A was just 15 months old. ‘Furious litigation’ had continued since, both in Australia and England.
• In Australia, there had been:
  1. A divorce.
  2. Financial remedy proceedings resolved by the parties entering into binding agreements.
  3. An application by F for parental responsibility and contact.
  4. Applications by M to vary or set aside the agreements, on the grounds of duress, fraud, unconscionable conduct, and non-disclosure (ultimately dismissed).
• The background facts and events up to July 2016 were described by Cobb J in his judgment in MG v FG (Schedule 1: Application to strike out; Estoppel; Legal Costs Funding) [2016] EWHC 1964 (Fam).

M’s second Schedule 1 application

• In 2016, M had made a second application under Schedule 1 (the first was in August 2011 and dismissed by consent a week later) and for legal costs funding. Cobb J refused to make a legal costs funding order but held he did not have the power to strike out the Schedule 1 claim. M’s application for permission to appeal the legal costs funding order decision was dismissed by King LJ.
• On 21 June 2018, M’s second Schedule 1 application came on for trial before DJ Aitken. Inexplicably, M did not attend, and the court proceeded in her absence. M sought annual periodical payments for A of £92,000, including school fees. It was unclear whether M’s position averred an understanding between the parties that A would be privately educated.
• DJ Aitken noted that:
  • M appeared to have spent large amounts on private schooling for A in Australia (despite there being no provision in the agreements for any payment to be made by F).
  • F’s evidence was that he would never choose private schooling. His two other children attended state schools and he could not afford three sets of school fees.
• DJ Aitken concluded that private education was not affordable. The Court ordered child maintenance in such amount as when added to any CMS calculation reached £1,315 per month.
• M unsuccessfully applied for permission to appeal.

F’s Child Arrangements Order application

• In 2017, M and A relocated to England. M subsequently made extremely serious allegations to the police against F of rape and sexual abuse.
• In February 2018, F applied for a child arrangements order. In her evidence filed in response, M accused F of attempted murder, threats to kill, rape and fraud. A fact-finding hearing was ordered.

Fact-finding hearing

• The fact-finding hearing took place before Judge Oliver. Judge Oliver dealt with the 27 allegations made by M against F, including aggravated rape, grievous bodily harm, attempted murder, threats to sexually abuse the child, and threats to kill. 26 of the 27 allegations were found not only to be ‘not proved’ but ‘fabricated by M’.
• M unsuccessfully applied for permission to appeal.
• Following Judge Oliver’s judgment, the local authority commenced care proceedings. Ultimately, F confirmed that he did not seek to pursue A’s removal from M and the local authority was given permission to withdraw its application.
• M unsuccessfully applied to Judge Oliver that he recuse himself from hearing the final hearing. She then unsuccessfully applied for permission to appeal the recusal refusal.
• In 2021, M applied to reopen the fact-finding judgment. Judge Oliver refused permission for her to do so. M then applied to the Court of Appeal for permission, but later withdrew this.

M’s third Schedule 1 application

• On 21 October 2019, M’s third application under Schedule 1, and application to re-open the Part III proceedings, came before Mostyn J. It was held that M’s applications were duplicative and struck them out as abuses of the court’s process. An ECRO was made of the court’s own volition, to expire on 21 October 2021.

The extension application and the permission application

• On 18 October 2021, F issued his extension application, and M filed her application for permission to issue her fourth Schedule 1 application on 28 July 2022.

F’S EXTENSION APPLICATION

• The sole criterion for determining an application for an extension of a civil restraint order is appropriateness. The court may extend an extended or general CRO for a further two years on each occasion “if it considers it appropriate to do so” (FPR PD 4B 3.10 and 4.10).
• F argued that if the ECRO was not extended, M would resume with zeal her issue of meritless applications against him.
• M argued that:
  1. If the order was extended, it will in some indirect way undermine the validity of her own permission application.
  2. The previous order was weaponised by F (and Judge Oliver) causing her to be stigmatised by it.
• The Judge rejected M’s grounds. The existence of an ECRO did not mean that every application for permission would be regarded as prima facie unreasonable.

M’S PERMISSION APPLICATION

• In what would be her fourth Schedule 1 application, if permission was granted, M sought a capitalised school fees order (£230,000 for four years) and a variation of the general maintenance order (from £1,315 to £4,350 per month, backdated to April 2020 and giving rise to £88,000 of arrears).
• The Judge criticised M’s statements as “unfortunate litanies of invective” in language which was “both melodramatic and self-righteous”.

M’s expert evidence

• Without permission and in direct breach of the Judge’s directions order, M filed a further 25-page statement which included a forensic report by Sid Harding of SRH Forensics LLP. The judge viewed this as “completely illicit”.
• Of the report, the Judge noted that:
  • The filing was in breach of s.13(1) Children and Families Act 2014
  • The report did not comply with the obligation of the author to be impartial and did not include the necessary declarations.
  • Mr Harding appeared to have been shown documents which had been disclosed in earlier proceedings, without the court’s permission, in clear contempt of Court.
  • Mr Harding put forward opinions based on flimsy materials, without seeking clarifications from F.
• The Judge concluded that the process by which the report was produced was so flawed, and the material on which it was based so limited and conjectural, that it would be wrong to place any weight on it whatsoever.

School fees

• A herself had never been educated privately. She was, until a year prior, educated at a state school in Westminster. M then withdrew her and began home educating her.
• The day after the hearing, M requested permission to file a further statement. In her oral evidence she asserted H had written an email 10 years prior agreeing in principle to private education. The Judge reluctantly gave permission to file her statement with the emails she had later found.
• The Judge considered M’s proposal to ‘launch’ A into private education at F’s expense ‘untenable’. Her application was refused for the following reasons:
  • The emails M supplied made clear there had never been an agreement, plan or understanding that A be privately educated.
  • There had already been a finding on 21 June 2018 by DJ Aitken that private education was inappropriate. Although such a finding did not constitute res judicata, a departure from the status quo set by the judge was not justified.
  • The proposal would be contrary to A’s interests. It would be in her best interests for her to attend a state secondary school.
  • Even if F now had the means to pay for private education, it would be fundamentally unjust were he ordered to do so.

General maintenance

• M argued that the present rate of general maintenance of £1,315 per month was too low. She relied on the Judge’s own decision in CB v KB [2019] EWFC 78, where he stated that when the CMS ceiling of £156,000 is surpassed then, as a guideline, the statutory formula should be applied to the surplus up to £650,000.
• The Judge stated that he would be surprised if F’s gross taxable income was less than £350,000 (as a silk of 8 years’ standing from an elite set of chambers). He considered that, notwithstanding M’s conduct towards F, the general maintenance was too low. He gave permission to bring that application, though did not allow her permission to claim backdating earlier than the date of her application.

Conclusion

• The judge extended the ECRO to 18 October 2024, refused M permission to bring a school fees application or lump sum application, and granted M permission to bring a variation application for an increase to general maintenance.
• On costs, the Judge considered F to have succeeded on his application and M to have partially succeeded on hers. Accordingly, he made no order as to costs.

Mia Purdy, Barrister at 1 Hare Court