Hope-Smith v Hope-Smith
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE HOLLINGS,LORD JUSTICE SLADE,and |
| Judgment Date | 16 December 1988 |
| Judgment citation (vLex) | [1988] EWCA Civ J1216-1 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 88/1091 |
| Date | 16 December 1988 |
[1988] EWCA Civ J1216-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL. CIVIL DIVISION
ON APPEAL FROM THE BROMLEY COUNTY COURT
HIS HONOUR JUDGE FINLAY Q.C.
Royal Courts of Justice
Lord Justice Slade
and
Mr Justice Hollings
88/1091
SY 1016/87
MISS JUDITH PARKER (instructed by Messrs Blyth, Coles & Stevenson) appeared on behalf of the appellant.
The respondent did not appear and was not represented.
The appellant is the former wife of the respondent. The proceedings out of which the appeal arises are ancillary to divorce proceedings between the appellant as petitioner and respondent. In the ancillary proceedings the appellant sought from the respondent financial provision for herself by way of property adjustment or lump sum payment. It was a second marriage for both parties and there are no relevant children. The parties had started to live together in 1976, in 7, Heatherbank, Summerhill, Chislehurst, Kent, a house which the respondent bought and put in his sole name at about this time. The purchase price was £33,500 raised by a mortgage with the City of London Building Society and there was another mortgage with the Norwich Union Life Insurance Society, the mortgages totalling £25,000.
The parties married in 1977, but the marriage broke down a few years later, the appellant issuing a petition in 1982. In 1984, it seems, the respondent too issued a petition, which was eventually dismissed. On 6th February 1985 decree nisi was pronounced on the appellant's supplemental petition based upon the behaviour of the respondent. Decree absolute was pronounced on the 26th March 1985.
The petitioner applied for ancillary relief by summons dated 28th September 1984. The first hearing before the Registrar was adjourned because of the respondent's absence. When the application came again before the Registrar on 5th September 1985, the appellant was represented by solicitors and counsel, but the respondent, then in person, though present, refused to attend the hearing. After receiving evidence, which included an affidavit by the respondent, the learned Registrar made an order awarding the appellant a lump sum of £32,000 to be paid in twenty-eight days in satisfaction of her claim for property adjustment and lump sum orders and ordered the dismissal of her claim for periodical payments upon payment of the lump aum. By paragraphs 2 to 6 of his order the Registrar charged the house at 7, Heatherbank with the lump sum and provided that if the respondent defaulted in payment the house should be sold forthwith with vacant possession, and he made provision for the signing and execution of documents for the purpose of such a sale by the Registrar if the respondent disobeyed the order, which he also made, that he should do so. He further ordered that the costs of the sale be paid by the respondent out of his share of the net proceeds and that the balance should be paid to the respondent.
The respondent appealed against this order to His Honour Judge Finlay Q.C., after obtaining leave to appeal out of time, and the appeal was heard by the learned judge on the 11th March 1986. This time the respondent was represented by solicitors and counsel. The learned judge dismissed the appeal and, since the lump sum had not been paid, put into effect paragraphs 2 to 6 of the Registrar's order, so that there was then an order for the immediate sale of the house and for payment of the lump sum out of the proceeds. The Registrar apparently had provided for payment of the appellant's costs by including them in the lump sum and so had made no order specifically as to costs. The learned judge ordered the respondent to pay the costs of the appeal and further ordered that any unpaid balance should be paid out of the net proceeds of sale. It is from this order that the appellant now appeals having obtained leave to appeal and extension of time.
By her notice of appeal the appellant seeks, in various forms, an order which reflects the present worth of the matrimonial home, which remains unsold, and which will reflect the increase in the cost to her of a home for herself due to inflation in house prices over the period since the judge's order was made, for this was the purpose for which the lump sum was intended.
On the morning of the appeal to this court on 1st December 1988 a facsimile of a doctor's certificate was received by the court signed by a Dr. Tyrrell which certified that the doctor had examined the respondent on the 30th November and found him to be suffering from influenza and that he should refrain from work. The certificate did not state that the respondent was unfit to attend court. It was accompanied by a "Faxed" message said to come from a Mr Cookson which stated that "Mr Hope-Smith will not be able to attend due to influenza", but contained no specific request for an adjournemt. The respondent, I should explain, is in person. Although, as will be seen, he has on previous occasions failed to attend court appointments and hearings without making any communication or explanation, even when the occasion concerned his own application or appeal, it was thought right not to proceed with this appeal until further enquiry was made. The appellant's solicitor accordingly, with this court's authority, traced Dr. Tyrrell on the telephone in Eccles, near Manchester, and spoke to her. The solicitor has embodied what the doctor told him in an affidavit sworn by him and which we have given leave to he filed and placed before us. Dr. Tyrrell told him that the respondent was a temporary resident and not registered with her, that a month ago she saw him and diagnosed a viral illness, that she saw him on the 30th November and was not surprised that the symptoms of "feeling not quite up to scratch" (in his words) persisted, as he explained that he had continued to work seven days a week since he had last seen her and had had no time off work, and that he had not been confined to bed but had been up and about. When she asked him if he proposed to take a rest he said that he proposed to go home to Chislehurst in Kent for the week-end. The symptoms presented on the 30th November were, she said, that he was "not quite up to scratch" and she gave him twelve days off work as that appeared to be what he wanted. "Basically", she said, "I took his word for it". He did not tell her about any court proceedings and she would not have thought that he was too unwell to go to court.
The certificate was already, in our view, inadequate on the face of it and this, of course, confirmed this view. This conduct on the part of the respondent was entirely in keeping with his previous behaviour with regard to court hearings of which the court was informed by Miss Parker for the appellant, and to which reference will be made in this judgment. Accordingly we decided to hear the appeal notwithstanding the respondent's absence.
The first ground of appeal in the notice of appeal is that the learned judge failed to award the appellant a lump sum sufficiently large (I summarise) to take into account the likely effect of property price inflation before the sale took place, or to take into account the history of delay and obstruction on the part of the respondent, and which was likely to be repeated by him before a sale could be achieved. The second ground is to the effect that the learned judge failed to afford in his order any protection against any such likely behaviour by the respondent and, in particular, failed or refused to order that the lump sum be expressed as a portion of the equity of the house, or, alternatively, to attach an interest provision. Grounds 3 and 4 are by way of alternative and I set them out here in full:
"3. In the alternative, the lump sum awarded under the said order is inadequate and inequitable having regard to
and
(a) the effluxion of time and the increase in property prices since the making of the said order,
and
(b) the delay in enforcing the order which has been wholly or largely created by the respondent's prevarication and obstruction,
(c) the gain which has and is accruing (sic) to the benefit of the respondent as a result of such delay.
4. The basis of the learned judge's order has been invalidated by reason of the aforesaid matters and the object of the award as expressed by him has been defeated".
We have been provided by Miss Parker with a detailed chronology of the course of proceedings from their inception. This chronology is, I am satisfied, accurately compiled and fairly summarises the proceedings, orders and affidavits contained in the bundles prepared for this appeal, the contents of which have been read by this court. In my judgment, these documents demonstrate on the part of the respondent a deliberate course of conduct designed to frustrate the various orders of the court and to prevent or defer the sale of the house, out of feeling of resentment on the part of the respondent and, it seems, out of a desire to postpone the sale so as to secure for himself a greater sum by way of the balance of the proceeds of sale.
It is necessary, before reviewing the course of events since the judgment now appealed from, to refer in more detail to that judgment and its effect. The learned judge arrived at the figure of £32,000 by a rather different route from that taken by the learned Registrar. Judge Finlay left costs out of account. The value of the house was agreed at £116,000, from which the total mortgage debts of £27,144—then owing fell to be deducted, making a net figure of £88,856. He refused to make any deduction in respect of substantial liabilities of the respondent in the form of Capital Gains Tax,...
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