Curling v The Law Society
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE NEILL,LORD JUSTICE PURCHAS,LORD JUSTICE OLIVER |
| Judgment Date | 21 December 1984 |
| Judgment citation (vLex) | [1984] EWCA Civ J1221-3 |
| Docket Number | 84/0501 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 December 1984 |
[1984] EWCA Civ J1221-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE FAMILY DIVISION
(MR JUSTICE ANTHONY LINCOLN)
Royal Courts of Justice,
Lord Justice Oliver
Lord Justice Purchas
Mr Justice Neill
84/0501
No. 11267 of 1983
MR NICHOLAS WALL (instructed by Messrs. James and Charles Dodd) appeared on behalf of the Appellant.
MR DUNCAN MATHESQN (instructed by the Law Society) appeared on behalf of the Respondents.
This is an appeal by the Plaintiff in the action, Mrs Lesley June Curling, against the decision of Mr Justice Anthony Lincoln given on 27th June 1984 whereby he refused to make certain declarations sought by her against the Law Society.
These declarations, as set out in the originating summons dated 23rd November 1983 were in these terms: "(l) A declaration that the Plaintiff did not recover or preserve any property within the meaning of S.9(6) of the Legal Aid Act 1974 in proceedings for. divorce between herself and Anthony George Kattenhorn in the Divorce Registry under number 10453 of 1981 and in particular as a consequence of an order made by consent in these proceedings on 26th January 1982. (2) A declaration that the Defendant is not entitled to a charge pursuant to S.9(6) of the Legal Aid Act 1974 and the Legal Aid (General) Regulations 1980 in respect of the sum of £15,201.92 payable to the Plaintiff as a consequence of the order made in the aforesaid proceedings on 26th January 1982."
Mrs Curling, then Lesley June Corder, was married to Anthony George Kattenhorn on 20th July 1968. In 1971 the matrimonial home was bought in joint names at 23 Greenvale Road, Eltham. They lived there for the next 10 years and had two daughters—Louise (now 11) born in 1973 and Emily (now 8) born in 1976.
In April 1981, however, Mrs Kattenhorn (as she then was) committed adultery with Mr Richard Curling whom she later married. In September 1981 Mr Kattenhorn moved out of the matrimonial bedroom and on 17th September he presented his petition for divorce. In his petition Mr Kattenhorn sought the following relief: (l) Dissolution of the marriage. (2) Custody of the two children of the family. (3) I quote the words of the prayer (A3): "A property adjustment order in respect of the matrimonial home, 23 Greenvale Road, Eltham, S.E.9."
It will be remembered that in the subsequent proceedings against the Law Society which led to the judgment of Mr Justice Anthony Lincoln, Mrs Curling sought a declaration that she did not recover or preserve any property within the meaning of S.9(6) of the Legal Aid Act 1974 in the divorce proceedings brought against her by Mr Kattenhorn. It is therefore important to start by investigating the attitudes which the two parties took up at the outset of the divorce proceedings and then to trace how the question of the matrimonial home was eventually dealt with. I shall hereafter call the parties respectively "the husband" and "the wife".
On 14th September 1981(3 days before the petition was presented) the wife's solicitors wrote to the husband (omitting parts of the letter which are not material) as follows: "Our client invites you to file a petition for divorce within the course of the next month which proceedings will not be defended either by herself or Mr Curling in default of which she has instructed us to file a petition on her behalf based on your unreasonable behaviour.
In the divorce proceedings our client will claim and will undoubtedly be granted custody of Louise and Emily but our client will be willing to afford you generous access to the children as from the date that you separate.
It is our client's intention to remain living at 23 Greenvale Road with the children until such time as the marriage has been dissolved and matters ancillary to the divorce have been resolved. However, it seems clear that sooner or later 23 Greenvale Road will have to be sold and the proceeds of sale divided between you and our client and it seems to us that the sooner the property is placed on the market for sale the better since this is necessarily a difficult time for you and our client with a consequent effect upon the children and the sooner matters are brought to a conclusion the better.
Accordingly, we would invite you immediately to place 23 Greenvale Road on the market for sale with a firm of estate agents and at a price to be discussed with our client with a view to the property being sold and the proceeds divided at about the same time that the marriage is dissolved.
Entirely without prejudice to her position should proceedings become necessary on ancillary matters, our client would presently be prepared to agree the net proceeds of sale of the property being divided equally between you.
Our client's intention is once 23 Greenvale Road has been sold to purchase another property using her share of the net proceeds of sale and a fresh mortgage advance and to move into her new home with Louise and Emily and with Mr Curling.
…………………………………………………………
………….our client has no present intention of claiming any maintenance for herself whatsoever nor any lump sum other than her proper share in the net proceeds of sale of 23 Greenvale Road. Our client, however, will require a fair proportion of the contents of 23 Greenvale Road as and when the property is sold to include all such items as are necessary to ensure the future well being of the children".
On 17th September the husband's solicitors replied (C6): "We are………………instructed……………at this moment that the house is not to be put on the market for sale." Further correspondence between the solicitors followed. On 27th November 1981 the husband swore a further affidavit in support of an application for directions. In paragraph 3 of this affidavit (B12) he said this: "The matrimonial home, 23 Greenvale Road, Eltham S.E.8., is a three bedroomed house, with two living rooms and kitchen, etc., jointly owned by the parties. I refuse to move out of the matrimonial home and the (wife) refuses to do so until custody of the children is settled". Meanwhile (according to affidavits sworn by the wife's solicitor and by the husband in the present proceedings against the Law Society) the husband had begun to consider the possibility of buying the wife's interest in the matrimonial home. He had in mind that in due course he would be paying the wife a lump sum equivalent to one half of the equity of the property (A27).
On 21st December 1981 the decree nisi was granted. By that time the wife had been granted legal aid limited to access and custody and to ancillary relief. On 24th December the wife swore an affidavit in support of her proposed application for the custody of the two children.
In paragraph 26 and 27 of this affidavit she referred to the matrimonial home (B23): "As I see it, the main problem incidental to the future care of the children is the accommodation that will be provided for them. I have suggested to the petitioner that the property at 23 Greenvale Road aforesaid should be sold and the proceeds of sale divided between us. I am advised and verily believe that if the property were sold as two self-contained flats each flat would have a value of about £22,500 whereas if the building were sold as one unit it would probably be worth about £40,000. There is a mortgage on the property in favour of the Anglia Building Society to secure on outstanding mortgage loan of about £5,100 so that depending upon the actual value of the property there is equity therein of about £34,900 to £39,900.
I am about to make application to this Honourable Court for ancillary relief to include application for an order that 23 Greenvale Road should be sold and the proceeds of sale divided between myself and the petitioner as may to this Court seem just. Assuming that I were granted at least 50% of the net proceeds of sale I would have a lump sum of about £15,500 to £20,000 which I could utilise as a deposit on the purchase of alter- natice accommodation for myself and the children.………………"
In January 1982 the husband applied for an injunction to exclude the wife from the matrimonial home. This application was supported by an affidavit sworn on 15th January. In this affidavit the husband reiterated his refusal to move out of the matrimonial home and asked the Court to grant him an injunction ordering the wife to vacate it. On 21st January 1982 the wife's legal aid certificate was amended to include the injunction proceedings.
On 22nd January the wife swore her affidavit in opposition to the husband's application. Towards the end of this affidavit (B40) she repeated her belief that the interests of the children would best be served by them remaining in her custody and that the matrimonial home should be sold and the proceeds of sale divided so that she should be in a financial position to purchase a suitable alternative home for herself and her children.
On 26th January 1982 the wife's application for custody and the husband's cross application for an injunction to exclude the wife from the matrimonial home and for interim custody were due to be heard. Before the hearing took place, however, the husband was advised by Counsel that his application for custody was hopeless and, on accepting this advice, the husband gave instructions that negotiations should take place to try to negotiate a settlement of the financial matters.
The husband's account of what then happened is set out in the affidavit which he swore in the present proceedings on 11th April 1984. He said this (A28): "I told my Counsel that I cons idered the gross value of the property to be about £37,000 and that after taking into...
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