AB v XY [2019] EWHC 1468 (Fam) (07 June 2019)

Fareha Choudhury (instructed by Gisby Harrison Solicitors) acted for the Appellant in AB v XY [2019] EWHC 1468 (Fam) (07 June 2019).

Successful appeal of the order and findings of HHJ Lochrane dated 1 November 2018 based on a serious procedural or other irregularity leading to an unjust outcome.

The appellant had represented himself at the hearing listed to commence at 2pm on 1st November with a time estimate of 1.5 hours. The hearing had been listed for determination of a preliminary issue, namely the existence or otherwise of a marriage alleged to have taken place in Jordan. Only 2 working days were allowed to prepare for the hearing and the appellant was served between 12 noon and 1pm on the day of the hearing with a statement containing 29 documents and exhibits which were said to support the existence of the marriage. 

Mr Justice Williams found that on important issues such as the existence of a marriage which have far-reaching consequences, the need for careful preparation, the opportunity for reflection, collation of material, the seeking of advice assumes a premium. The fact that the appellant did not raise any objection or request any additional time was relatively unimportant in the context of the significance of the issue before the court. The appellant challenged the veracity of the marriage certificate and the inferences that could be drawn from the other items of evidence deployed by the respondent. It was clear that there were a raft of further enquires that would have been made had more time been available.

Insufficient time had been allowed in this case given the magnitude of the issue in play. It amounted to “undue acceleration” which is a serious procedural irregularity and which makes the decision unjust. The 1.5 hour time estimate was inadequate, though it extended to something closer to 3 hours. The appellant had been hurried along and the pressure built as the afternoon progressed. The manner in which the hearing took place was inappropriate and crossed the border into one which became procedurally irregular and unfair.

The orders and findings were set aside and the matter remitted for further hearing.

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