Cohen J. The first in the trio of Potanina v Potanin decisions. This one is the High Court decision where Mr Justice Cohen dismissed W’s application for leave to bring a claim under Part III of the Matrimonial and Family Proceedings Act 1984 (the 1984 Act). Mr Justice Cohen, had on an ex parte basis, granted W leave to apply for financial relief pursuant to Part III of the Act.

General background

H and W both 58. Russian nationals. Married in 1983. Three children all over 18. Separation, H says 2007 and W says 2013. Divorced 2014. Throughout the marriage the parties lived in Russia.

During the marriage H acquired wealth and became ‘massively rich’.

The issuing of divorce proceedings in February 2014 led to a ‘blizzard’ of litigation, including W appealing the divorce order. During the ‘blizzard’ the Russian courts found the year of separation to be 2007.

W was not entitled to any maintenance under Russian law.

In 2014 W obtained a UK investor visa and bought a house. W says she began living in London at the beginning of 2017. London has been her permanent home. Her application is therefore made pursuant to s 15(1)(b), on the basis of her habitual residence in England.

Procedural background

Initial ruling on the ex parte application (25 January 2019).

‘10. I am thus, satisfied having read her evidence and heard from Mr Howard, that the tests of s 16(2) for the grant of leave are met.

11⁠. I do not think that it is necessary for me to say anything more about the law. I have, of course, applied the test of whether there are solid grounds or substantial grounds for the court to be able to say that an order might be made. I am satisfied, for all the reasons given, that those grounds exist. If, of course, the husband feels that he does have what is sometimes known as a “knock-out blow” to the application, then it is open to him to make an appropriate application to strike out the leave.’

H applied to set aside the grant of leave pursuant to FPR 18.11, principally on the grounds that the judge had been misled in important respects as to the facts, issues of Russian law and the applicable principles of English law.

The application was set down for a hearing over two days on 3–4 October 2019. A directions hearing for W’s substantive application was listed for half a day on 5 June 2019, but that date was used to give directions for the set aside application.

Those representing W submitted that the judge should consider the set aside application at that hearing, to determine whether H could deliver a knock-out blow and either dismiss the application or adjourn it to the final hearing, in accordance, it was submitted, with para [30] of the Supreme Court’s judgment in Agbaje v Agbaje [2010] UKSC 13; [2010] 1 AC 628 (‘Agbaje’).

The judge declined to take that course. He extended the hearing fixed for October to three days to allow for a day of judicial reading time and he gave case management directions, which included (i) that W was to disclose the date upon which she had first attended personally, or through her agent, on English matrimonial solicitors, and the identity of those solicitors, and (ii) that she should file a statement responding only to the financial misrepresentations as asserted in H’s statement.

Set aside hearing

At the set aside hearing there were lengthy and detailed submissions made by reference to witness statements, documents and authorities amounting to several thousand pages. The judge made findings as to W’s connection with this country (s 16(2)(a)–(c)); the financial benefit she has hitherto received (s 16(2)(d)); provision for any children (s 16(2)(e)); and her rights to financial relief in any other country (s 16(2)(f)).

At the set aside hearing the judge was being asked, in effect, to make significant findings of fact and/or to reach conclusions without the benefit of the oral evidence which would have been available to him if the application to set aside had been held over to the final hearing.

Following the set aside hearing on 3–4 October 2019, the judge gave a detailed reserved judgment and made the order dated 8 November 2019, by which he set aside the leave on the basis that he had been misled at the ex parte **leave hearing. He went on to remake the decision in the light of the additional information now available to him and refused W’s application for permission to proceed with a Part III application.

At para 59 Mr Justice Cohen says:

‘59. I am in no doubt that if I had had the full picture before me on 25th January 2019 I would not have granted W leave to make her application. I am further satisfied therefore that the grant of leave was given as a result of material misleading of the court, however unintentional that might have been.’

There are two key takeaways

1. There should be more use of interparty hearings and less use of ex parte hearings when leave to bring a claim under Pary III is sought; see [46]–[50].
2. Simply because a party has suffered what they regard as a very significant injustice in another country and has come to England after the breakdown of the marriage does not in itself make the case appropriate for determination in England and Wales – i.e. using English courts to top-up, where one party considers another jurisdiction failed them, was not viewed well by the English courts; see [53]–[61].