Case Number: BV16D35907
In the Family Court at Canterbury
Canterbury Combined Court
15 November 2022
Deputy District Judge Roffey
Ms Gray (Barrister) on behalf of the Applicant
Mr Rai (Respondent), Litigant in person
Other Parties Present and their status
Judgment date: 15 November 2022
(start and end times cannot be noted due to audio format)
Reporting Restrictions Applied: No
“This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.”
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Number of folios in transcript 23
Number of words in transcript 1,631
Deputy District Judge Roffey:
- I am dealing with an application filed by solicitors acting for the wife in a divorce proceedings that have been going on since 2016. The application that I am dealing with today is an application to commit Mr Rai, the Respondent Husband, to prison for breaches of various orders made during the matrimonial proceedings themselves. I will come to those orders in a moment.
- I have heard evidence from Mr Rai and I have read a position statement prepared by Ms Gray of counsel who appears on behalf of the Applicant, Mrs Rai, and I am grateful to her for her assistance this morning. I have also seen a very helpful bundle prepared by Mrs Rai’s solicitors and I have considered the situation as a whole.
- Mr Rai’s litigation conduct has had real consequences for Mrs Rai. So much time and money has been wasted because of him. An FDR that was due to take place last year had to be adjourned and there is a final hearing due to be held on 12 and 13 December in just short of four weeks’ time but it appears that that hearing will not take place, with the consequent waste of court resources, again because Mr Rai has failed to comply with orders relating to the disclosure of his financial situation.
- Helpfully attached to the application notice is a schedule of the alleged breaches and it can be seen from that schedule that we are dealing here with wholesale non-compliance of orders. I ought to add that this application to commit Mr Rai was due to be dealt with by Deputy District Judge Ashley in June of this year but as a consequence of Mr Rai attending court late on that occasion the deputy district judge did not feel able to deal with the matter properly and so it was put off until today.
- The deputy district judge made a direction that Mr Rai should respond to the schedule of breaches contained in the application notice by 4 o’clock on 29 June 2022, by way of a witness statement, with supporting evidence. The learned deputy district judge’s order was clear and left no doubt as to what Mr Rai was to do.
- Today I was provided with a witness statement from Mr Rai, apparently filed last week. That statement is dated 11 November 2022, over four months after it should have been filed and served. That witness statement did not respond at all to the Applicant’s allegations of breaches of the order and there was no real reason advanced as to why it was late. What it did was to give a rather vague and generic description of the expenses that he had apparently incurred as a consequence of Mrs Rai ending the relationship and leaving him.
- I therefore made an order at the beginning of the hearing that Mr Rai not be at liberty to rely upon that witness statement. We are therefore in a position today where the application has been served. It clearly sets out the alleged breaches and Mr Rai has provided no response or, at the most, a very inadequate response.
- As I said, I heard Mr Rai give evidence in the witness box under oath and I have to remind myself that in this type of application where Mr Rai’s liberty is at risk by way of a sentence of imprisonment, that the Applicant has to prove beyond reasonable doubt the breaches of the orders which are the subject of a penal notice or penal notices. That is the criminal standard of proof.
- I also take account of the fact that not all of the breaches relate to orders that carry a penal notice. Not all of the previous directions and orders do but in order to understand the extent of the breaches I can say that the schedule that outlines them itself goes to 5½ pages. It seems to me and I find as a fact that Mr Rai has complied with few of the previous orders made in the proceedings between him and his wife. Before I turn to the breaches which I have found proved beyond reasonable doubt I ought to give some outline as to Mr Rai’s evidence and demeanour from the witness box.
- In response to many questions put to him by Ms Gray he responded that he had sent any required documents that were in his possession to his friend, who also happened to be a solicitor. There was absolutely no evidence available before me today to show what his friend had done with those documents and neither did Mr Rai know.
- Mr Rai’s claims should be seen in the context in which Mrs Rai’s solicitors were sending him constant chasers and reminders for him to comply with these orders. Mr Rai told me that he had met his solicitor friend only last week in order that the witness statement to which I have had reference could be prepared for him. Even then Mr Rai did not bother to check what documents his friend had or whether he had sent any of them to the Court to comply with his disclosure obligations.
- I do not find Mr Rai’s position credible. His friend, being a solicitor, would have known the risk of imprisonment being faced by Mr Rai today and I think it safe to assume that if he had received any relevant documents from Mr Rai, or if he had already sent them to the Court or to Mrs Rai’s solicitors, then he would have provided Mr Rai with evidence for him to bring along to Court today. Even at this late hour I could have taken that evidence into account. He did not do so because there is no such evidence.
- I am not going to slavishly set out each and every individual breach; the schedule of breaches is comprehensive. What I would say is that in relation to Mr Rai’s Form E, dealt with in the order of District Judge Rahman of 28 July 2021, there are no less than 19 separate deficiencies highlighted. Various sections of the Form E have been left entirely blank or not properly completed. In short, Mr Rai has failed to disclose any details of his income or produce his bank statements, to specify but two of the more fundamental issues.
- Perhaps the most problematic breach however comprises the failure of Mr Rai to provide any details of his Army pension. In addition to that, Mr Rai has failed to properly respond, or respond at all, to Mrs Rai’s questionnaire. There are 16 questions which remain unanswered. It is apparent that Mr Rai owns more than one property and it would have been a relatively simple process for him to provide the requested valuations and redemption statements in relation to each property to show the amount outstanding on each mortgage.
- Further, Mr Rai has failed to provide his particulars of suitable alternative properties for himself or Mrs Rai, or evidence relating to his mortgage raising capacity. He has also failed to provide any updating disclosure. In the order made at the hearing last year, which should have been the FDR, the deputy district judge granted Mr Rai an extension of time for provision of these documents and yet again Mr Rai had failed to comply.
- As I have said, Mr Rai’s responses to questions in cross-examination consisted of a theme that he had supplied what documents he had to his solicitor but there was complete disregard as to whether or not his solicitor had sent them on to the Court and to Mrs Rai’s solicitors. Mr Rai also told me that he was struggling to deal with the situation as a whole. He used various descriptions that his mind did not work and his brain was not working. He told me that he struggles to do these things and that there is “too much stress”.
- Be that as it may, help was available to him had he chose to engage with it. Each of the orders in which a penal notice was attached had the usual information as to where Mr Rai could have gone to get some assistance.
- In any event, I find beyond reasonable doubt that each of the breaches set out in the Applicant’s notice dated 16 March 2022 have been proved and that there were no reasonable grounds upon which those breaches could be excused. I will therefore now deal with committal sentencing at this moment.