Brisset v Brisset
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wilson,Lord Justice Jacob,Lord Justice Sedley |
| Judgment Date | 09 July 2009 |
| Neutral Citation | [2009] EWCA Civ 679 |
| Docket Number | Case No: B4/2009/0163 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 July 2009 |
[2009] EWCA Civ 679
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE REIGATE COUNTY COURT
HIS HONOUR JUDGE SLEEMAN
Before: Lord Justice Sedley
Lord Justice Jacob
and
Lord Justice Wilson
Case No: B4/2009/0163
LOWER COURT NO: RH04D00814
Miss Rachel Spicer (instructed by Andrew Jackson, Solicitors, Hull) appeared pro bono for the Appellant.
Miss Maria Scotland (instructed by the Bar Pro Bono Unit) appeared for the Respondent.
Hearing date: 30 June 2009
Lord Justice Wilson:
A husband (as I will call him notwithstanding the pronouncement of a decree absolute of divorce) appeals against an order made in proceedings for ancillary relief by His Honour Judge Sleeman sitting as if in the Reigate County Court on 21 May 2008. The judge's order was to dismiss the husband's appeal against an order for ancillary relief made by District Judge Beck dated 10 January 2008. In both courts the husband and the wife (as I will call her) appeared in person. In our court they were represented by Miss Rachel Spicer and Miss Maria Scotland respectively, both of whom appeared pro bono.
We heard the appeal on 30 June 2009. Short though the hearing before us was, the performance of both counsel was outstanding. Indeed the hearing was short because counsel's submissions, written and oral, were so clear, so succinct and so realistic. At the end we announced our decision, namely to allow the husband's appeal; and we indicated that we would give our reasons in written judgments, of which Sedley LJ has invited me to deliver the first.
The husband is now aged 69 and the wife is now aged 72. Both are retired. The marriage was celebrated in 1964 and broke down in 2004.
“The parties' own agreed approach to this case”, said the district judge accurately, “is that their respective capital and income should be divided, as far as possible, in equal shares, so as to ensure that they are, as near as may be, in the same position in retirement”. But they could not entirely agree upon the translation into figures of their agreement in principle that, of course on a clean break basis, the division between them should be equal. They agreed that the matrimonial home, of which the wife remained and still remains in occupation, should be sold and that the net proceeds of sale should be divided equally; and they agreed upon the proportions of a substantial pension sharing order in favour of the wife. They even agreed that equality demanded the payment by the husband to the wife of a balancing lump sum. The disagreement before the district judge was as to its size. In the event the district judge decided that the amount of the lump sum thus payable should be £35,356.
The basis of the husband's unsuccessful appeal to the circuit judge was to the effect that the lump sum of £35,356 was too high. He made various complaints about the course which the hearing before the district judge had taken but in particular he complained that there had been an element of double-counting in the district judge's calculations, which had allegedly vitiated his final figure of £35,356. In this court all the husband's complaints other than in relation to double-counting have fallen away.
Before I address the complaint of double-counting I need to address what was, with respect to him, the inappropriate way in which the circuit judge prepared for, and conducted, the appeal.
Upon issue of the husband's notice of appeal against the district judge's order, the court file was placed before the circuit judge for directions. On 6 February 2008 he made some entirely appropriate directions but he also endorsed on the file:
“Please refer these papers to Judge Beck for his comments. Please refer back to me afterwards.”
The reference precipitated a letter from the district judge to the circuit judge dated 7 February 2008. In eleven paragraphs the district judge provided the circuit judge with background information about the hearing and took issue with many of the husband's grounds of appeal: for example that the latter had been prejudiced by the wife's service of a schedule upon him only on the morning of the second and final day of the hearing; and that the district judge had reached his decision and written his judgment during the four weeks between the first and second days of the hearing, prior to his allegedly reading all of it out at the end of the second day.
In the letter the district judge also wrote that he did not think that he had been guilty of double-counting but that he would check that point following the submission for his approval of the draft official transcript of his judgment. It is relevant to a tangential feature, linked to the double-counting, which I will explain in [14] below that I should set out parts of two paragraphs of the district judge's letter, as follows:
“3. The parties' own agreed approach to the case was that their capital and incomes should be divided equally, as far as possible …
4. The wife … was in any event seeking adjustments from complete equality because of various contributions … She wanted 52% of net proceeds of [the home] and other adjustments … and an equalisation payment so as to reflect the disparity in incomes between separation in 2004 and final hearing. The differences between the two sides were therefore difficult, despite the agreed starting point, and mathematical.”
We have the benefit of an official transcript not only of the circuit judge's judgment on 21 May 2008 but of all the exchanges during that hearing. At its outset the circuit judge handed to each party a photocopy of the district judge's letter to him dated 7 February 2008 and, perhaps because it was handwritten, he also read it out so that, in his words, both parties would have an opportunity to comment on it. Then the circuit judge added the following:
“I have spoken to Judge Beck today because I wanted to be sure that he did check his transcript and his figures and he assures me that he did check his figures when he approved the transcript and in his view there has been no double-counting, and so that I think is where you and he disagree, Mr Brisset, so I just thought you ought to know that.”
Thereupon the hearing proceeded and the circuit judge delivered a short judgment. He addressed and rejected all the husband's grounds of appeal. In relation to the late service of the wife's schedule, the circuit judge said:
“I agree that was unsatisfactory but District Judge Beck says that Mr Brisset was not disadvantaged by only seeing the wife's statement on the day and I quote [from the letter dated 7 February 2008] 'We went through it in detail and I made sure he had time to assemble her figures'.”
In relation to the allegation that the district judge had reached his decision prior to the second day of the hearing, the circuit judge, again referring to the letter dated 7 February 2008, said:
“The district judge says he had dictated a detailed note of the chronology and issues but he did not make his core findings and final calculations until day two.”
Later the circuit judge said:
“Mr Brisset's main complaint is that there has been an element of double-counting by the district judge.”
After making one particular reference to the figures which he considered to demonstrate the invalidity of the complaint, the circuit judge added:
“Further I have spoken with the district judge today and he has confirmed to me that, when he received the transcript, he checked all his figures to ensure there had been no double-counting as alleged.”
It was wrong for the circuit judge to have communicated with the district judge, at first in writing and then orally, about the substance of the appeal. Having done so, he was clearly correct to have informed the parties so fully and so clearly about the content of the communications; but he should not have allowed them to occur in the first place. Indeed, as I have demonstrated, he used the district judge's comments as reasons for the dismissal of the appeal. It is no exaggeration to state that District Judge Beck was allowed to participate in the dismissal of an appeal from District Judge Beck. No doubt in county courts in which circuit judges and district judges work in close proximity, develop close working relationships and perhaps have coffee and lunch together, they will develop the habit of discussing cases of mutual interest or perceived difficulty and may find themselves tempted to discuss even appeals from the latter to the former. But, just as we do here in relation to appeals from our colleagues in the High Court, the circuit judge must build a Chinese wall between himself and the district judge in relation to a pending appeal. I would recognise only one exception to that principle. Advocates are nowadays encouraged to invite a trial judge to amplify judgments in which...
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Morrison v Henry
...the court to chart disparities of income and expenditure even during the years following separation, let alone during the marriage: Brisset v Brisset [2009] EWCA Civ 679, at [19]. One party's greater expenditure than the other during the marriage is usually relevant only if there is clear e......