Bakir v Downe [2014] EWHC 3318 (Fam)

Neutral Citation Number: [2014] EWHC 3318 (Fam)

Case No: ZC 14 F 00029

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

18th July 2014

B e f o r e :

MR. JUSTICE MOSTYN

____________________

Between:

WISSAL BAKIR Applicant

- and -

PETER PHILIP DOWNE Respondent

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____________________ MR. C. MITROPOULOS (instructed by B.G. Lawyers LLP) appeared for the Applicant

THE RESPONDENT appeared in person (assisted by a McKenzie Friend, Mr. C. Evans)

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HTML VERSION OF JUDGMENT ____________________

Crown Copyright

MR. JUSTICE MOSTYN:

1. On 3rd April 2014 Cobb J made an ex parte freezing order. The return date was fixed for 16th April when the matter came before me. I was doubtful whether the relevant criteria for making an ex parte freezing order, as summarised and explained by me in the case of UL . v BK, had been met. However, the Respondent husband offered me in court an undertaking to preserve two funds, one held with Investic Bank in the sum of £133,000 and one held with Nat West Stock Brokers in the sum of £140,000. The relevant exchange is at page 11 of the transcript, D-E, where the dialogue is as follows:

   "THE JUDGE: Will you give an undertaking to the court that you will leave them here?

   MR. DOWNE: That's no problem, that's my intention anyway.

   THE JUDGE: Yes, so there is no problem you giving an undertaking to the court?

   MR. DOWNE: Absolutely none."

2. On that basis counsel for the wife, Mr. Mitropoulos, drafted an order containing that undertaking and in accordance with the usual practice drafted a general form of undertaking for Mr. Downe to sign. Mr. Downe, however, refused to sign the general form of undertaking. That general form of undertaking is not a legal requirement for the giving of an effective undertaking. That undertaking had plainly been given in the face of the court in the dialogue which I have just recounted. Therefore, the order was made recording the undertaking in the terms drafted by counsel.
3. Mr. Downe, who had represented himself before me, instructed solicitors and counsel to seek a variation of that undertaking. On 27th June 2014 his variation application came before Moor J. where he gave undertakings, this time supported by a written general form of undertaking, which he signed in the terms set out in the order of 27th June 2014. They are similar to the undertakings which he gave before me. The variations provided that he would use his best endeavours to maintain the current value of the assets in the two accounts, namely the Investec and Nat West Stock Brokers, and that he would be at liberty to use the Investec and Nat West funds for the purposes of paying maintenance for the parties' children and £1,000 a month for his own personal expenses.
4. Since the matter was before me Mr. Downe when acting in person has written to my clerk on a number of occasions. I should say at this point that Mr. Downe is not one of those indigent litigants who has had self-representation forced on him by an austere government which has withdrawn almost all legal aid from private family law business. He has the means to instruct solicitors and indeed before Moor J. on 27th June 2014 he was represented by solicitors and counsel. However, when acting in person he has written on a number of occasions. For example, he has written in asking to be given a disk containing the audio recording of the proceedings before me, a surprising request bearing in mind that the practice direction of the Lord Chief Justice, Practice Direction [2014] 1 WLR 632, makes perfectly clear that such audio recordings would not be made available save in exceptional circumstances, for example where there is cogent evidence that the official transcript may have been wrongly transcribed. That is an example of the requests made informally in communication by Mr. Downe to my clerk.
5. On 10th July 2014 Mr. Downe wrote to my clerk. This is of course over two weeks after the matter was before Moor J. when Mr. Downe gave fresh undertakings. In his e-mail of 10th July 2014 he wrote this:

"At the hearing of 16th April bfore Justice Mostyn I was asked to give an undertaking, which I did. The judge asked the Applicant's barrister to write it down, which he did. The barrister asked me to sign it, which I did not. I did not sign it because what was written did not correspond to the undertaking I had given in court. I did not sign the draft. The order refers to a signed undertaking, but there isn't one. I objected in writing to the solicitors the same day and in writing the next day. Despite this the undertaking in the sealed order is identical to the draft. Could you explain how this happened? The judge went away on holiday after the hearing. This is on my mind every day and I would be grateful to receive an explanation of the actions that were taken to include this unsigned undertaking in the sealed final order as though I had agreed it. This is not a legal question. It is about the actions taken in the judge's office to include the draft and unsigned undertaking in the sealed and final order. Thank you for your assistance in this matter."

6. My clerk replied on the following day, 11th July, as follows:

"Than you for your e-mail. I am sure you will undertand when I say it is not a matter for the judge. On the day of the hearing the order was produced by counsel for the Applicant as directed by the judge. His Lordship approved that order. You were then asked to sign the approved order prior to sealing and serving, and you refused. The order was then sealed and served. It may be that you would wish to obtain legal advice if you continue to be dissatisfied."

7. That day later Mr. Downe replied to my clerk as follows:

"I need to obtain the facts here, and please stay wth this, sir, until we have established the simple facts. This is not a question requiring legal advice but of compliance with procedure. The judgment calls for the undertaking to be signed. Undertakings must be signed by the person giving the undertaking. Who sealed this order, and upon whose instruction? There is no signed undertaking, so please clarify how the order came to be sealed. I surmise that the judge anticipated I would sign and approve the order for sealing before my signature, and left the building to go on holiday. Is this interpretation correct? I think there might have been a procedural error committed here. This is not a legal matter requiring advice. It is a question of fact about events that took place in the chamber."

To that my clerk replied on the same day:

"The facts are as I have already told you in my e-mail below, which makes it quite clear as to the order of events."

To that Mr. Downe replied on the same day:

"Could you please send me your procedure for processing complaints and please accept the contents of this and previous e-mails as a stage one complaint."

to which my clerk replied:

"Thank you for your e-mails, which the judge has read. His Lordship directs that you and counsel for the Applicant attend a hearing fixed in front of the judge at 10 a.m. on Friday, 18th July in order to resolve this issue."

8. The courts are now being visited with an increasing number of informal applications made by litigants in person. As I have said in this case, Mr. Downe acts as a litigant in person by election. I am taking the opportunity in this judgment, which will be transcribed at public expense and placed on Bailii, to explain, both for the benefit of Mr. Downe and for any other litigants in person, that the court does not afford any indulgences or deviations to the litigants in person from the clear procedure that is prescribed for the procedure that is prescribed for all applications that are made to the court. The court is not some kind of advice bureau for the benefit of litigants in person who do not understand how orders have been made. If a litigant in person wishes to make an application to the court, then he must do so in accordance with the procedure laid down by the law of the land.
9. That procedure is in Part 18 of the Family Procedure Rules. It requires an application to be made. It requires a fee to be paid. It requires a draft order to be supplied. It requires the relief that is sought to be clearly specified. None of that has happened here. Even now I am unable to understand what relief Mr. Downe is seeking in circumstances where his complaints are entirely academic by virtue of the fresh undertakings given to Moor J. on 27th June 2014. As I have already said, but I reiterate, there is no requirement for an undertaking which is given in the face of the court and recorded in the transcript to be separately recorded in a general form of undertaking. If the terms of the undertaking are clear it is proper for that to be recorded in the body of the order and for the court then to approve that. That is what happened here. I was satisfied that the undertaking corresponded exactly to what Mr. Downe had offered and agreed in the transcript at page 11.
10. Accordingly in those circumstances I am treating Mr. Downe's e-mail of 10th July 2014 as an application to the court, and I formally dismiss it.

(Following brief submissions)

11. I make an order for the costs of today to be paid by the Respondent to the Applicant, to be assessed on the standard basis if not agreed. I also direct that the judgment I have given today should be transcribed at public expense. It will be placed on Bailii in an unanonymised form.