Grey v Grey

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE THORPE,Lord Justice Wall,LORD JUSTICE PATTEN
Judgment Date31 December 2009
Neutral Citation[2009] EWCA Civ 1424
Docket NumberCase No: B4/2009/2120/2121/PTA+A
Date31 December 2009

[2009] EWCA Civ 1424

IN THE HIGH COURT OF JUSTICE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM

The Honourable Mr Justice Singer

Before: The Right Honourable Lord Justice Thorpe

The Right Honourable Lord Justice Wall and

The Right Honourable Lord Justice Patten

Case No: B4/2009/2120/2121/PTA+A

Between
Richard John Paul Grey
Appellant
and
Lara Jane Grey
Respondent

Mr Martin Pointer QC and Ms Katharine Davidson (instructed by Messrs Alexiou Fisher Philipps) for the Appellant husband

Mr Nigel Dyer QC (instructed by Messrs Manches Llp) for the Respondent wife

Hearing date: Thursday 10th December 2009

LORD JUSTICE THORPE

The Background

1

The parties to this appeal are in their mid-thirties. They come from Dublin where they became close in their school days. They became engaged in 1996 and in 1997 moved to London to enable the husband to pursue his career in the City. They married first in 1998 in Spain, but the marriage was invalid since it had not been properly registered. Their only child, a daughter, was born on 16 th September 2001. A valid marriage was celebrated in a London register office on 18 th September 2003. The parties separated in April 2005. The husband moved from the final matrimonial home in St John's Wood to a nearby flat. The wife returned to Dublin with their daughter.

2

Hard fought ancillary relief proceedings ensued, during the course of which neither party paid much attention to the rule that requires full, frank and clear disclosure. The contest culminated in a trial before Singer J commencing on 4 th February 2008. As a result of serious illness, Singer J was unable to hand down his written judgment until March 2009.

3

The value of the family assets had fallen between trial and judgment, at which stage there was approximately £3 million. That was split equally between the parties with the exception of some pension rights which had been acquired by the husband post separation. In broad terms, the wife received the house which had been bought for her and their daughter in Dublin, a lump sum of about £320,000, to which about £135,000 was added in lieu of back-dated periodical payments. Finally the wife received a share of the husband's pension rights worth some £45,000.

4

Singer J set the wife's periodical payments at an annual rate of £135,000 from November 2006 until judgment. The rate thereafter he set at £125,000 per annum. It was agreed that periodical payments for their daughter should be at the rate of £15,000 per annum.

The Issue of the Appeal

5

Only the judge's orders for periodical payments were challenged by the husband. He sought permission to appeal which was effectively granted on the papers. The basis of the husband's challenge has a very narrow focus. Its only foundation is the wife's relationship between November 2006 and the trial with Mr Thompson, a Dublin resident separated from his wife.

6

Mr Martin Pointer QC for the husband advanced two basic submissions:

i) That the judge had failed to make proper findings of fact regarding the relationship between the wife and Mr Thompson.

ii) That the judge misdirected himself in law, failing to apply established authority and rejecting a submission that a new approach had emerged based on a proper recognition of the inter-relationship between pre-marital and post-marital cohabitation.

7

Mr Nigel Dyer QC, for the respondent wife, first submitted that there had been no cohabitation between the wife and Mr Thompson. Accordingly the judge correctly abstained from positive finding. Secondly, Mr Dyer submitted that if there was cohabitation, the judge correctly directed himself in law by reference to the authorities in this court, rightly rejecting the submission of recent evolution. Thirdly, Mr Dyer submitted that the periodical payment orders made by the judge, with no discount for the relationship between the wife and Mr Thompson, were within the generous ambit of his discretion.

The Judge's Findings of Fact.

8

It is easy to arrive at a distorted assessment of the judgment below. For the purposes of this appeal, it is necessary to consider only paragraphs 70–74 under the heading “W's relationship with L”. It must be emphasised that this was only one of a large number of issues that the judge had to resolve in the course of a judgment running to 103 paragraphs. It must also be remembered that the judge had the unenviable task of writing a judgment more than a year after the trial on his return to the bench after many months of illness and convalescence. Before citing the vital paragraphs in full, it is necessary to review the evidence as to the relationship between the wife and Mr Thompson as well as the relevance of the relationship.

9

The development of a relationship between the wife and Mr Thompson was inevitably revealed to the husband by the fact that the wife's house was in the same street as that of her parents in law. The issue was raised by the husband's solicitors in January, June and December 2007. In responding on 26 th June 2007, the wife's solicitors wrote “Lara instructs me that Liam is not her boyfriend, he is a friend. He does not live with her.” About six weeks before the trial her solicitors wrote again; “my client is not cohabiting with Liam. He is making no financial contribution to the household”.

10

On 22 nd December 2007, the husband's father agreed to keep observation and to maintain a record of Mr Thompson's use of the wife's home. The detailed diary between 22 nd December and 28 th January 2008 demonstrated that Mr Thompson was clearly living with the wife throughout that five week period. Mr Grey's detailed evidence was the subject of an affidavit sworn on 29 th January 2008. He was not required to attend the trial for cross-examination.

11

Similarly an enquiry agent, Mrs Dorman, carried out surveillance between 12 th and 27 th January 2008. Her report dated 28 th January confirmed the observation of Mr Grey senior. She too was not required to attend the trial for cross-examination.

12

In her evidence in chief, the wife was asked to confirm the content of the letter of 31 st December 2007 from her solicitors:

“Did you consider, in 2007, that you were cohabiting? A. No, not at all.

Q. How did you view the future of your relationship with Liam when you were giving instructions for this letter to be written? A. No different than it is now.

Q. Which is what? A. Which is every third day, every second weekend or whenever. Just a companionship basis.”

13

This was her explanation for Mr Thompson's presence throughout the five weeks preceding the trial:

“Q. What was different about January? A. It was coming up to my – well, this divorce hearing and I needed extra – I needed a little bit of extra company, somebody who wasn't involved with the proceedings. I had constant streams of faxes from Manches. I was very worried and upset about these four days that were coming up and he was just being very supportive and I'm glad for that. It's just me and my daughter. When she goes to bed, me on my own, looking at four walls. So, yes, he was definitely there for quite a bit of time but that's not the norm.

Q. Have you had any discussions with Mr Thompson about him moving in permanently? A. No, never.

Q. Is that what you would like? A. No, not at all.

Q. And why is that? A. I am in no way mentally or emotionally ready for any man to move into my home, especially with me and my daughter at the moment. Definitely not, no.”

14

For his cross-examination Mr Pointer had potent ammunition which enabled him to suggest to the wife that she was carrying Mr Thompson's child. She was only about 17 weeks pregnant and no doubt felt secure in concealing a development which she had not anticipated that the husband would sniff out. Thus this highly relevant development emerged only during the course of her cross-examination. She further accepted that she was “in a fixed, committed relationship” with Mr Thompson and that it was “a fixed permanent relationship”.

15

The wife's endeavours to explain away the very recent past of course did not meet the evidence of Mr Grey senior concerning the period from November 2006 to the effect that Mr Thompson's presence as the wife's cohabitant was “common knowledge amongst the neighbours on our small street”. Specifically he recalled that when he called for his granddaughter on 26 th August 2007, Mr Thompson opened the front door to him and pleasantly introduced himself.

16

Mr Pointer also cross-examined the wife as to Mr Thompson's occupation. The following were her concessions:

“Q. Liam, I think you told my Lord he is in charge of programmes on radio stations; is that right? A. Yes, he runs radio stations.

Q. Yes. Quite a big group, is it not? A. I don't know the size of it.

Q. It runs 42 radio stations, across Europe? A. I know it runs quite a lot but I don't know the amount.

Q. And he is the group programme director, is that right? A. He is, yes.”

17

What is remarkable to my mind is that Mr Pointer did not proceed to ask any questions as to Mr Thompson's remuneration as Group Programme Director or as to his financial circumstances generally. Thus, at the close of the evidence, there was not a word or a document that gave any indication of whether or not Mr Thompson was contributing financially to the wife's household or as to whether he was in a position to do so. Perhaps Mr Pointer thought to rely on his occupation of a house in a fashionable district, his apparent ownership of a smart car and his responsible employment, which together could be said to give rise to the implication that his salary...

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