AR v ML
| Jurisdiction | England & Wales |
| Judge | MOSTYN J |
| Judgment Date | 27 September 2019 |
| Court | Family Court |
Financial remedies – Practice and procedure – Normal route of appeal from deputy district judge in Family Court – High Court judge rather than circuit judge only if important point of principle or practice – Where High Court judge sitting in Family Court normal private hearing rules applied – Possibility of adjournment to consider exercise of power to reverse decision already made – Appeal time limit.
The husband and wife were both self-employed in the IT world, earning enough to support themselves. They married on 27 May 2011 and separated in October 2016. The wife had a child from a previous relationship who was treated as a child of the family. The wife initiated a financial remedies claim in April 2018. Following an unsuccessful FDR on 1 November 2018, the district judge made a comprehensive directions order, which included the following:
‘Each party shall serve copy estate agents particulars of properties on which they wish to rely at the final hearing and that they consider to be suitable to meet their own and the child of the family’s housing needs, and the housing needs of the other and the child of the family’s, (limited to 5 of each) by 4 PM on 24 January 2019.’
The net assets were £908,000. In addition, the wife had a pension worth £66,000. The husband’s open proposal was that the wife should receive net assets of £378,000 and retain her pension, so that she would leave the marriage with £444,000, which was 46 per cent of the assets. The wife’s proposal, based on her asserted housing need of £525,000, was that she should receive £600,000 from the husband, from which she would pay debts of £63,000, leaving her with £537,000 plus her pension, which equated to 66 per cent of the assets.
Each party produced estate agents’ particulars as required by the judge. The husband’s particulars were for properties with asking prices of between £325,00 to £369,950; the wife’s particulars were for properties with asking prices of between £595,000 to £600,000. No particulars were provided to support the wife’s target figure for housing of £525,000.
The judge awarded the wife £475,000 and her pension. After discharging her debts, this left the wife with approximately £412,000 plus her pension, so about 49 per cent of the total assets.
The wife made an oral application, relying on In re L and another (children) (preliminary finding: power to reverse)[2013] UKSC 8, seeking permission to introduce further evidence relating to housing needs, namely further property particulars and also seeking an adjournment of the final hearing to a future date, on the basis that the judgment already delivered would not be perfected into a final order. The judge adjourned the hearing, setting a date about a month later for finalisation of the judgment after reconsideration of the housing fund suitable for the wife and child. Permission was granted to file and serve concise statements as to suitable housing together with property particulars.
The husband appealed. An appeal from a deputy district judge at the Central Family Court was supposed to be heard by a circuit judge, unless a Designated Family Judge or a judge of High Court level allocated the appeal to a judge of High Court level, considering that the appeal would raise an important point of principle or practice under FPR PD 30A para 2.1, at row 2. Notwithstanding this, for some reason the notice of appeal was placed before a High Court judge rather than a circuit judge. In an order wrongly headed ‘In the High Court of Justice, Family Division’, made on 30 April 2019, the High Court judge directed that the application for permission was to be listed before a judge of the High Court with the appeal to follow if permission were granted. On 20 June 2019 a different High Court judge directed (in an order again wrongly headed ‘In the High Court of Justice, Family Division’) that ‘unless the judge conducting the hearing orders otherwise, the hearing shall be open court, subject to any reporting restrictions that the judge shall impose.’
Held – (1) The court could only assume that the High Court judge considering the notice of appeal had departed from the normal route of appeal (ie to a circuit judge) because he considered that this case raised an important point of principle or practice. However, what was clear was that, notwithstanding the misleading heading of his order, the appeal was to be disposed of by a High Court judge sitting in the Family Court and not in the High Court. The significance of this was that the provisions of FPR 30.12A and PD 30B, which stipulated that certain appeals were to be held in public, applied only to appeals which were heard in the High Court, and not to this appeal: see FPR PD 30B para 1.2. For appeals heard in the Family Court, whether by a circuit judge, or a High Court judge, the normal provision in FPR 27.10 is for the hearing to be in private applied. Notwithstanding the direction for the case to be heard in open court, the court could see no good reason why the normal rule should not apply in this case. Had this appeal been heard by a circuit judge there was no question but that it would have been heard in private. Having heard the case in private, the judgment was to be published in anonymous terms; revelation of the identities of the parties or the child of the family would be a contempt of court (see [3], [4], below).
(2) In In re L and another (children) (preliminary finding: power to reverse)[2013] UKSC 8, Lady Hale had described the judge’s exercise of the power to reverse a decision at any time before the order was drawn up and perfected as an exercise of discretion. In the court’s respectful opinion, making the binary choice whether or not to accede to an application to revisit a judgment already delivered was not really an exercise of discretion, in the sense of making a choice from a range of options none of which could be said to be wrong. Rather, as this court had argued before, it was the formation of a value judgment. Put shortly, an evaluation had to be made as to whether there was good reason to depart from the principle of finality which was inherent in the delivery of any judgment. It was implicit from the authorities that, fraud aside, the principle of finality would generally hold sway (see [7], [8], [11], below).
(3) Up to and including Re L, there had never been a case in which a successful challenge to a delivered judgment had been achieved on the basis of fresh evidence which could have been made available to the court first time around. Where a Re L application was made asking the court to revisit a financial remedies judgment already handed down, on the basis of fresh evidence which had not been placed before the court first time round, a due diligence requirement should be imposed. In two previous decisions this court had applied a due diligence requirement on set-aside applications (see GM v KZ (no 2)[2018] EWFC 6, [2018] 2 FLR, where the application had been to set aside an order for the return of children to this jurisdiction, and Thum v Thum[2019] EWFC 25, where the application had been to set aside a disclosure order). To impose such a requirement was consistent with, and gave effect to, the finality principle, which in the field of financial remedies was of high importance. The maxim set out in Fage UK Ltd & Anor v Chobani UK Ltd & Anor[2014] EWCA Civ 5 should apply strongly in a financial remedy case: ‘The trial is not a dress rehearsal. It is the first and last night of the show’. Given that financial remedy proceedings were disproportionately expensive and extraordinarily stressful for the parties, to allow litigants to treat the trial as a dress rehearsal and to seek a further performance on the basis of new evidence which could, with due diligence, have been supplied first time round, would send a terrible message to prospective litigants. The spectre of an appeal was bad enough, but at least that was the subject of the rigorous permission filter. The idea that there could be a re-run of the case at the suit of a disappointed litigant on the basis of evidence, yet to be obtained, which could have been obtained earlier, was appalling. There would need to be a very good reason before a judge formed a value judgment that permitted a re-visitation of the judgment on this basis (see [16], [21], [22], below).
(4) While it was true that there had been no particulars showing what kind of property the wife could buy with £410,000, it was equally true that there had been no particulars showing what kind of property she could buy for £525,000, her own target figure. Where there were particulars establishing a clear, if patchy, spectrum, it was a fallacy to say that there was no evidence to show what could be purchased in the no man’s land between the top of the husband’s bracket and the bottom of the wife’s. Obviously, a process of inferential judgment based on the available material properly had led the judge to conclude that the wife could properly rehouse herself with a housing fund of £410,000 in, or not far from, the area in which she wished to live (see [31], below).
(5) The judge’s decision to adjourn to permit further evidence relating to housing need had not been based on the correct legal principles and, inasmuch as it had been an exercise of ‘discretion’, had plainly been wrong. No good reason had been shown why the judge should have departed from the terms of her judgment. There had been no reference to the principle of finality. There had been no reference to the concept of due diligence. This had merely been another example of counsel on behalf of a disappointed litigant seeking spuriously to try to get the judge to change her mind immediately after judgment had been delivered, to which the judge should not have succumbed. This syndrome was seemingly ineradicable. Francis Bacon condemned it long ago (Essayes or Counsels, Civill and Morall: Of Judicature, 1625) when he wrote in the 56th of the 58...
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