Glenn Hugh Briers v Nicola Ann Briers
| Jurisdiction | England & Wales |
| Judge | Sir Ernest Ryder,Lord Justice Lindblom,Lady Justice Rafferty |
| Judgment Date | 25 January 2017 |
| Neutral Citation | [2017] EWCA Civ 15 |
| Docket Number | Case No: B6/2016/2738 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 January 2017 |
[2017] EWCA Civ 15
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT BIRMINGHAM
His Honour Judge Rogers
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Rafferty
THE SENIOR PRESIDENT OF TRIBUNALS
and
Lord Justice Lindblom
Case No: B6/2016/2738
Mr Jonathan Cohen QC and Miss Jayne Mullen (instructed by Harrison Clark Rickerbys Limited) for the Appellant
Mr Justin Warshaw QC and Mr Joshua Viney (instructed by FBC Manby Bowdler LLP) for the Respondent
Hearing date: 23 November 2016
Approved Judgment
Sir Ernest Ryder, Senior President:
On 6 May 2015 His Honour Judge Rogers, sitting as a judge of the Family Division of the High Court in Birmingham, made a financial remedy order between parties to a marriage that ended in divorce as long ago as 2005. For the purposes of this judgment, I shall refer to them as husband and wife. The order complained of ordered the husband to pay a lump sum of £1.6m to the wife in four instalments over two and a half years and to transfer to the wife 25% of his Standard Life pension, the Standard Life policy and his Standard Life shares.
The husband appeals with leave of the single judge and submits that the appropriate order should be a lump sum of £500,000 which this court should substitute on setting aside Judge Rogers' determination in its entirety. The court is very grateful to Mr Jonathan Cohen QC on behalf of the husband and Mr Justin Warshaw QC on behalf of the wife for the quality of their submissions.
The background circumstances can be taken shortly. The parties married in 1984. They were both teachers. In 1988 the husband began a sportswear trading business initially operating out of the garage at the former matrimonial home. He incorporated the business in the same year with the shareholding of 100 shares being divided between himself and the wife in the ratio of 99:1. In 1990 he ceased teaching to concentrate full time on the business. The wife continued to teach, helped in the business and looked after their three children.
In 2002 the parties separated and the husband moved out of the family home. The wife took no further part in the business but continued teaching and looking after the children.
The decree absolute was pronounced in 2005 after what were described as 'protracted negotiations' between them. In 2006 the husband paid £150,000 to the wife, in 2007 the wife became the sole owner of the former matrimonial home and in 2008 she transferred her share in the business to the husband. There were no orders made at that time concluding their financial affairs. In 2013 the wife issued her Form A applying for a financial remedy order consequent upon their divorce.
The key issues in the financial remedy proceedings were whether the parties had reached a full and final settlement of their financial affairs and, if not, what a fair distribution would be.
Judge Rogers found that there had not been a full and final settlement in the period between 2003 and 2005. In support of his conclusion he held that the husband had not given the wife full disclosure which the wife had said at the time she would require before agreeing a final settlement. He came to the conclusion that the negotiations were driven by the husband. By way of example, the husband chose the figure of £150,000, the wife did not sign a deed of settlement that was drafted, and although there was a joint meeting between the husband, the wife and a solicitor, the solicitor had previously worked for the husband and the note of the meeting recorded that the wife's acceptance of the proposed deal was conditional on the husband's full disclosure.
That might be said to be sufficient in an appeal which has to surmount the hurdle that the judge made a finding of fact that an agreement was not concluded. Unless that finding can be said to be perverse, the appeal would have no prospects of success. In deference to the careful and attractive submissions of Mr Cohen, although I have come to the conclusion that the hurdle cannot be surmounted, I shall deal with each of the grounds and submissions that he advanced.
The grounds of appeal are as follows:
a. The judge was plainly wrong in his conclusion that the parties did not reach an agreement in 2005;
b. The judge failed to have sufficient regard to the wife's delay in bringing the claim and the lack of any cogent explanation for the same;
c. The judge's determination was wrongly based on entitlement rather than need;
d. The judge failed to have sufficient regard to the value of the assets at the time of separation;
e. The judge failed to have sufficient regard to the husband's contribution to the business after separation;
f. The judge failed to have sufficient regard to the evidence that the business would not be sold and would be passed instead to the children so that its value would not be realised by the husband;
g. The judge failed to have sufficient regard to the risk attached to the business including from potential tax liabilities connected with the business.
The alleged agreement:
The first issue in the appeal is a question of fact. I need not repeat in this short judgment the well known principles that underscore the importance that is attached to a first instance judge's assessment of the oral and written evidence that he has heard and read and his impression of the witnesses. They are summarised in the most recent Supreme Court consideration of appeal principles: In the Matter of B (A Child) [2016] UKSC 4.
In this case, the question whether an agreement was reached was dominated by the evidence of the parties. So far as the wife was concerned the following examples of the judge's assessment and impression informed his conclusions:
a. "[12] …underlying her presentation was a vulnerability. She found the recollection of events painful … At times her recollection was incomplete …the overwhelming impression she made [was] of a woman doing her very best to give an honest and balanced account…
b. [15] …I have no doubt the wife is telling the truth about this example…
c. [9] …I accept the written and oral evidence of the wife as to the detail."
If one then compares that with the judge's assessment and impression of the husband, the difference could not be more marked:
a. "[9] …I have no doubt that he was the dominant personality and sought to prevail in the relationship psychologically…
b. [13] …The husband made a less favourable impression upon me…
c. [14] …I also found the husband under cross-examination could be dismissive or evasive of perfectly proper enquiries…the more those matters are explored closely and forensically, the more unconvincing became the husband's responses.
d. [15] …I am cautious about the husband's evidence because of its tendency towards unreliability.
The husband submits that the judge's finding of fact about there being no agreement is unsustainable. He relies upon the contemporaneous evidence. That includes:
a. the solicitor's note of the meeting on 16 March 2005;
b. the lack of any substantive objection from the wife to the detail of the proposal;
c. the unsigned separation agreement which included in its draft terms the proposed transfers that actually took place;
d. The wife's active participation in the negotiations including her request that the husband's suggestion that she receive a salary of £10,000 pa be included in the draft agreement as a variation;
e. The wife's acknowledgement in oral evidence that a consensus was reached;
f. The husband's execution of all elements of the agreement; and
g. The wife's acquiescence without disagreement from 2005 until 2013.
The husband's submissions are powerful and were attractively put. The evidence upon which the judge made his findings was however more nuanced and ultimately persuasive. The judge formed a robust view of the parties and their relationship and, as he explained, the dynamic between them is key to an understanding of the events that took place between 2003 and 2006. The husband was in psychological control and the wife's case which was accepted by the judge included the following:
a. The husband became increasingly dismissive of the wife;
b. The wife felt intimidated by the way the husband put his initial position for example the implied threat that any claim that included the business could lead to its liquidation;
c. The wife consulted her own solicitors who wrote to the husband in December 2002 asking for full and frank disclosure which the husband did not provide;
d. The wife was consistent (and in her own terms insistent) that the husband should provide full and frank disclosure which he never did;
e. The draft deed of separation was not a negotiated document: it was produced on the instructions of the husband's accountant by the husband's solicitor;
f. The husband misled the wife about the ownership of the property he moved into after separation;
g. The discussion at the meeting with the husband's solicitor was conditional upon the husband providing full and frank disclosure as the note of the meeting records;
h. No proper disclosure was ever made and accordingly no agreement was ever reached.
The judge made clear findings about the husband's failure to provide full disclosure to the wife and to...
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