Wilmot v Maughan

Judgment Approved

Lord Justice Moylan:

Introduction

I propose, for convenience, to call the parties the husband and the wife although they were divorced many years ago.

The husband appeals from Mostyn J’s order of 13 th January 2016 by which he dismissed the husband’s deemed application to set aside all orders made in the proceedings since 2010. The substantive proceedings are financial remedy proceedings in which the wife has made a number of enforcement applications.

The husband was never required to make a formal application. The issue was merely recorded in the judge’s order of 29 th September 2015 in the following terms:

“The Respondent (husband), being subject to an extended civil restraint order, do have permission to apply to argue that service of orders and documents on him by email were invalid and that all orders made since 2010 … be set aside on the basis that service … was defective and failed to comply with the mandatory requirements of the Hague Convention on the Service of Judicial and Extrajudicial documents 1965”.

The husband was also not required to file any statement in support of this application other than one dealing with his habitual residence.

The result of the procedure which was adopted is that the grounds on which the husband relied have had to be determined from his submissions. This has provided scope for a lack of precision and has had the consequence that there has been some variation in the way in which his case has been formulated. At its highest, as set out in the judgment below, the husband’s case has been that the orders providing for email service were null and void, having been made without jurisdiction because of the terms of the 1965 Convention. As alternatively formulated, at least during the hearing of this appeal, the orders were not void but were defective and should be set aside largely, it would seem, because the potential impact of the 1965 Convention was not, or does not appear to have been, expressly addressed at the time when the email service orders were made.

It is relevant to note that the husband did not and does not challenge the court’s substantive jurisdiction. The sole focus of his case has been on the service of process. Further, it has been on the service of applications (and other documents) made in the course of proceedings and not of initiating process.

I have considerable sympathy for the judge. The issue as to service was raised in the course of a hearing dealing with a number of o