Campbell v Campbell
| Jurisdiction | England & Wales |
| Judge | SIR JOHN BALCOMBE,LORD JUSTICE BELDAM,LORD JUSTICE PILL,LORD JUSTICE THORPE |
| Judgment Date | 18 February 1998 |
| Neutral Citation | [1998] EWCA Civ J0218-6 |
| Judgment citation (vLex) | [1997] EWCA Civ J0310-4 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 February 1998 |
| Docket Number | FC2 97/7684 CMS2,CCFMI 96/1477/F |
[1997] EWCA Civ J0310-4
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM DARLINGTON COUNTY COURT
(MR RECORDER DAVEY)
Royal Courts of Justice
Strand
London WC2
Lord Justice Beldam
Sir John Balcombe
CCFMI 96/1477/F
MR G FORD (Instructed by Messrs Clark Willis Wastnedge & Mellors, County Durham, DL3 7LB) appeared on behalf of the Appellant
MR R LEE (Instructed by Messrs Hutchison & Buchanan, North Yorkshire, HG4 1DS) appeared on behalf of the Respondent
Monday, 10 March 1997
This is an unhappy story. It is an appeal by a wife—and, although the parties have been divorced, I will adopt the usual practice of referring to them as husband and wife even though they no longer bear that relationship—against an order made by Mr Recorder Davey on 20 December 1995 in the Teesside County Court, dismissing her appeal from an order made by Mr District Judge Brougham on 20 September 1995 in the Darlington County Court, on that occasion dealing with financial ancillaries between herself and her husband.
The brief facts are that the parties were married on 10 March 1976. By a previous marriage the wife had some children who became children of the family. There were then further children born to the parties, two of whom are now adult, but at the time in question there were three children still at home and one who was in the course of university education. The parties separated in September 1993. The husband petitioned for divorce in January 1994. A decree absolute was made in April 1995 and the husband has since remarried.
The wife, who is a lady in her early fifties, has spent a large part of her life bringing up the children of the marriage. She remained in what had been the matrimonial home, which was a sizeable house, but which was beyond her means to maintain without considerable support from her husband. In particular, although the house had a value of something over £100,000, it had a very substantial mortgage upon it, and the only way in which that mortgage could be maintained was by support from the husband, as well as support by him for the maintenance of the wife and the younger children. In those circumstances the District Judge came to a conclusion (which was certainly open to him) that it was not feasible for the wife to continue to live in the matrimonial home indefinitely. The solution he proposed was that the house should be sold and that, in due course, the proceeds of sale (which were not going to be all that great once the mortgage was paid off) should go to the wife, together with certain endowment policies which belonged to the husband, which should enable her, so he believed, to put down a sufficient sum to buy a new, smaller, house. She was then training—which, I have to say, is much to her credit—as a nurse, so that she might, together with some support from her husband, be able to afford the mortgage which would be needed to be raised to buy this smaller house. Effectively, that was the order which the District Judge intended to make. He also was proposing that the husband should pay quite a substantial sum by way of periodical payments to the wife until such time as the matrimonial home could be sold, and a smaller sum thereafter, and also payments for the children.
Clearly, whatever else happened, this was not going to be a clean break case, having regard to the continuing need for the husband to support the children and, the wife (although at a lower rate after the house had been sold).
I turn straightaway to the order which the District Judge made. He ordered, first, that the former matrimonial home be transferred to the wife forthwith. Paragraph 2 was an order that the husband's endowment policies be transferred to the wife. Then comes the first of the—I would describe them, I hope charitably as "oddities", less charitably they could be described as—"inconsistencies":
"3. The former matrimonial home to be placed on the market for sale at the best obtainable price upon the following conditions."
There are then conditions as to who should have conduct of the sale, who was to determine the asking price, and so on. Straightaway it is apparent that there is a certain inconsistency between, on the one hand, giving the house to the wife outright and then, immediately following, ordering it to be sold. Clearly what the District Judge intended was that the house should be sold, that pending the sale the wife should be entitled to live in it, and that the net proceeds of sale should be paid to her. It would have been much easier if he had said so.
Paragraph 4 does indeed provide:
"Upon sale of the … property, the net proceeds of sale after deduction of conveyancing and estate agents costs to be retained by the [wife]."
If that was the only way in which the order had gone wrong, there would have been no great difficulty in putting it right. However, the District Judge then went on to say:
"Pending sale of the property the [husband] to pay the sum of £841 per calendar month in discharge of the mortgage on the … property and related payments thereto and the sum of £159 per calendar month to the [wife] and thereafter [after the sale of the property] £350 per calendar month to the [wife] and £330 per calendar month to the [wife] for the benefit of the 3 children…"
They are named and their dates of birth are given:
"… until the age of 17 years or ceasing full time education whichever shall be the later."
There one sees, effectively, periodical payments for the wife at one rate during the period until the sale of the house and at a lesser rate thereafter, and maintenance for the children. Clearly, this was not going to be a clean break case (as it is sometimes called) where, after the capital available has been divided, the husband should cease to have any responsibility for periodical payments to the wife. Yet having made what was not a clean break order, the District Judge then continued (in paragraphs 6 and 7):
"The [husband] and [wife]'s claims for maintenance pending suit, periodical payments, secured periodical payments, lump sum and property adjustment orders do stand dismissed and the parties shall not be entitled to make any further applications under Section 23(1) or (b) of the Matrimonial Causes [Act] 1973."
Apart from the fact that it is by no means clear to what provisions of the Matrimonial Causes Act that is a reference, as there is no section 23(b), that seems to suggest that it should not be open to the wife, as would normally be her right, to apply for a variation of the periodical payments should her circumstances change, nor indeed should it be open to the husband to do so, which makes no kind of sense at all. Finally, paragraph 7 of the order:
"Pursuant to section 15 of the Inheritance (Provision for Family and Dependants) Act 1975, the court considering it just to do so, neither the [husband] nor the [wife] shall be entitled on the death of the other to apply for an order under Section 2 of that Act."
Again a provision wholly appropriate if this had been a clean break order and totally inappropriate if there was not to be a clean break, as there was not going to be here. I think it is fair to say that Mr Lee, who has been the counsel for the husband throughout, now accepts that that order is not what it should have been.
However, matters proceeded to go from bad to worse because the wife, who was by then acting in person, appealed (as was her right) to the County Court. Her appeal came before Mr Recorder Davey on 20 December 1995. The first point to which I would refer is a submission which was made to the Recorder by Mr Lee as counsel for the husband. Having pointed out that the wife was appearing in person and suggesting, quite properly, that he might be able to help the Recorder at that stage, Mr Lee says:
"In my submission the authority is quite clear. The jurisdiction that you have, your Honour, is that effectively of the Court of Appeal. There is authority to that purpose. That is how the matter is to be dealt with. Unless Mrs Campbell can demonstrate to you that there are significant matters that were not given in evidence in front of Mr District Judge Brougham then her appeal must fail on that basis."
A little later Mr Lee says:
"… it may be … that [the wife] takes the view that this is an appeal by the way of a total rehearing of the original matter plus whatever new evidence she wishes to put before the court …"
Having put what her view might have been, he says:
"If my judgment of the way in which the case is to be conducted is right—and of course it is a matter for you, your Honour—then I would respectfully submit it could all be dealt with within about 45 minutes."
I need not read any more at the moment because it is quite clear that the Recorder in the end accepted Mr Lee's submissions, and when one comes to see the very brief way in which he gave his judgment it is clear that he was looking at it on the basis: were there any grounds upon which he could interfere with the discretion of the District Judge? He does not appear to have appreciated that there were, in any event, significant defects in the order which was under appeal. In any event, the procedure he adopted was wrong.
The case of Marsh v. Marsh [1993] 2 All ER page 794, a decision of this Court, makes it quite clear what is the procedure to be adopted by the County Court on an appeal from the District Judge on a financial ancillary matter. I quote from the head-note, which in fact accurately summarises a passage from the judgment of...
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